Hardy v. Shuren

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
____________________________________
)
PAUL T. HARDY, et al., )
)
Plaintiffs, )
)
v. ) Civil Action No. 11-1739 (RBW)
)
MARGARET A. HAMBURG, et al., )
)
Defendants. )
___________________________________ )
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 that it must
grant the motion to dismiss for the reasons set forth below.
1
In addition to the filings already identified, the Court considered the following filings by the parties in reaching its
decision: (1) the Memorandum of Points and Authorities in Support of Defendants’ Motion to Dismiss (“Defs.’
Mem.”); (2) the Plaintiffs’ Opposition to Defendants’ Motion to Dismiss (“Pls.’ Opp’n”); (3) the Reply in Support
of Defendants’ Motion to Dismiss (“Defs.’ Reply”); and (4) the Defendants’ Notice of Supplemental Authority
(“Defs.’ Notice”).
1
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 (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 (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 (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
2
An “agency” is defined in 5 U.S.C. § 2302(a)(2)(C) as an “Executive agency and the Government Printing
Office.”
3
And even then, the Court’s jurisdiction is limited to certain types of cases. See Kloeckner v. Solis, _ U.S. _, _, 133
S. Ct. 596, 601 (2012).
2
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. ¶ 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
3
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.
4
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 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
5
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
4
Beginning in early 2010, “Dr. Smith, who is a licensed attorney,” served as legal counsel for several FDA
employees, including Mr. Hardy, Dr. Czerska, Dr. Nicholas, Dr. Vishnuvajjala, and Ms. Wersto, who were
“prepar[ing] a complaint of FDA misconduct with the Office of Special Counsel.” Am. Compl. ¶ 84.
6
intercepted [p]rivate [e]mails sent to [her] . . . and that [she] should have reported those
conversations 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
5
The plaintiffs filed their First Amended Complaint with the Court on January 25, 2012. ECF No. 2. Further, the
plaintiffs’ lead attorneys have the following positions at The National Whistleblowers Center: Executive Director
and General Counsel. Compare Am. Compl. at 41 (listing counsel for the plaintiffs), with Defs.’ Mem., ECF No.
31-3, Ex. 3 (Nat’l Whistleblowers Ctr. Staff) at 1 (identifying counsel in positions of Executive Director and
General Counsel).
7
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 challenge to the [C]ourt’s jurisdiction.” Haase v. Sessions, 835 F.2d 902,
906 (D.C. Cir. 1987). When reviewing such a motion, the Court must “assume the truth of all
material factual allegations in the complaint and ‘construe the complaint liberally, granting [the]
plaintiff the benefit of all inferences that can be derived from the facts alleged.’” Am. Nat’l Ins.
Co. v. FDIC, 642 F.3d 1137, 1139 (D.C. Cir. 2011) (citation omitted). However, because
“[f]ederal courts are courts of limited jurisdiction,” it is “presumed that a cause lies outside
8
th[eir] limited jurisdiction,” Kokkonen v. Guardian Life Ins. Co. of Am., 511 U.S. 375, 377
(1994), and “the [p]laintiff bears the burden of establishing by a preponderance of the evidence
that the Court possesses jurisdiction,” Hollingsworth v. Duff, 444 F. Supp. 2d 61, 63 (D.D.C.
2006). Accordingly, “the court must give the plaintiff[s’] factual allegations closer scrutiny
when resolving a Rule 12(b)(1) motion than would be required for a Rule 12(b)(6) motion for
failure to state a claim.” Byrum v. Winter, 783 F. Supp. 2d 117, 122 (D.D.C. 2011) (citing
Macharia v. United States, 334 F.3d 61, 64, 69 (D.C. Cir. 2003)). Finally, in determining
whether it has jurisdiction, the Court “may consider materials outside of the pleadings.” Jerome
Stevens Pharm., Inc. v. FDA, 402 F.3d 1249, 1253 (D.C. Cir. 2005).
IV. LEGAL ANALYSIS
A. Whether Certain Claims Asserted by the Plaintiffs are Precluded by the Civil
Service Reform Act
If the administrative and remedial scheme set forth under the CSRA can resolve the
claims that the plaintiffs have alleged in their complaint before this Court, then the plaintiffs
must use that scheme to seek redress and the Court is precluded from exercising jurisdiction over
the plaintiffs’ claims.6 See Bush v. Lucas, 462 U.S. 367, 388-89 (1983) (explaining that the
application of the CSRA forecloses private causes of action and provides for administrative
remedies). Because the “[CSRA] . . . exclusivity does not turn on the constitutional nature of an
employee’s claim, but rather on the type of the employee and the challenged employment
action,” Elgin v. Dep’t of Treasury, _ U.S. _, _, 132 S. Ct. 2126, 2136 (2012) (emphasis added),
the Court will address each of these components in turn.
6
At the outset, the Court notes that the plaintiffs’ allegations about the defendants, if true, are troubling. In
deciding the defendants’ motion to dismiss, however, the Court is not addressing the merits of any of the plaintiffs’
claims against the defendants. The defendants’ motion only concerns the Court’s jurisdiction to adjudicate the
plaintiffs’ claims.
9
1. The “Employee” Status of the Plaintiffs Other Than Mr. Hardy7
The CSRA defines a federal “employee” as “an individual who is appointed in the civil
service by” the officers designated in 5 U.S.C. § 2105(a)(1). “The CSRA also divides federal
employees into four broad groups: (1) those in the competitive civil service; (2) those who are
preference eligible; (3) those in the excepted civil service; and (4) probationers, being those who
have one year or less of service.” Harrison v. Bowen, 815 F.2d 1505, 1510 (D.C. Cir. 1987); see
also 5 U.S.C. §§ 2101, 2102, 2103. “The substantive rights and procedural protections to which
any particular employee is entitled often depend upon where he or she falls in this typology.”
Harrison, 815 F.2d at 1510. Here, the parties do not dispute that each of the plaintiffs’
“employee” statuses are governed by 5 U.S.C. § 2105(a)(1). See Pls.’ Opp’n at 37-38; Defs.’
Reply at 12-14. And they agree that Dr. Czerska, Dr. Vishnuvajjala, and Ms. Wersto “were (or
are) federal employees covered under the CSRA.” Pls.’ Opp’n at 3; see Defs.’ Reply at 13.
The parties, however, dispute the applicability of the CSRA to Dr. Nicholas and Dr.
Smith. See Pls.’ Opp’n at 14-15, 37-38, 44. Nevertheless, pursuant to the CSRA, Dr. Nicholas
and Dr. Smith filed complaints with the Office of Special Counsel, which contain the same type
of allegations that are at issue before this Court: the defendants’ approval and use of retaliation
against whistleblowers. See Defs.’ Mem., ECF No. 31-4, Ex. 4 (Nat’l Whistleblowers Ctr. Press
Release) at 1 (“six federal employee whistleblowers filed complaints . . . before the U.S. Office
of Special Counsel demonstrating that the federal government targeted whistleblowers for
intrusive, covert surveillance”); Defs.’ Mem., ECF No. 31-5, Ex. 5 (Office of Special Counsel
Letter to Congressional Members) at 1 (alleging “FDA used covert surveillance as a tool to
retaliate against whistleblowers” and the FDA’s “pattern of retaliation”); Am. Compl. ¶¶ 28, 33.
7
Hereinafter, unless otherwise noted, the Court’s reference to “the plaintiffs” will not include Mr. Hardy as the
resolution of the motion to dismiss him as a plaintiff has been decided on grounds outside of the CSRA framework.
10
Confronted by an ongoing administrative proceeding that could potentially avoid piecemeal and
duplicative litigation, the Court will withhold review of their claims until a later time, if
necessary.
Although the doctrine of ripeness has constitutional and prudential components, see
Nat’l Treasury Emps. Union v. United States, 101 F.3d 1423, 1427-28 (D.C. Cir. 1996), this case
only requires the Court to address the latter. “[T]he ripeness doctrine exists to prevent the courts
from wasting . . . resources by prematurely entangling [them]selves in abstract disagreements,
and, where . . . other branches of government are involved, to protect the other branches from
judicial interference until their decisions are formalized and their ‘effects felt in a concrete way
by the challenging parties.’” Id. (quoting Abbott Labs. v. Gardner, 387 U.S. 136, 148-49 (1967).
The application of the doctrine requires a two-part analysis: (1) whether the issues are fit for
judicial review; and (2) whether the Court’s refusal to consider the issues will create hardship on
the parties. Id. If a challenged decision is not “fit” for review, “the petitioner must show
hardship in order to overcome a claim of lack of ripeness.” Fla. Power & Light Co. v. EPA, 145
F.3d 1414, 1421 (D.C. Cir. 1998). In assessing the fitness prong, courts evaluate “whether the
agency action is final; whether the issue presented for decision is one of law which requires no
additional factual development; and whether further administrative action is needed to clarify the
agency’s position.” Action Alliance of Senior Citizens v. Heckler, 789 F.2d 931, 940 (D.C. Cir.
1986).
Here, neither prong of the ripeness analysis is satisfied. The fact that Dr. Nicholas and
Dr. Smith are currently seeking administrative relief under the CSRA for allegations concerning
the defendants’ reprisals for their whistleblower activities, and that the administrative
investigation into their allegations is pending and have not been terminated for want of
11
“employee” status under the CSRA, leaves the Court to conclude that their claims are not fit for
review. Additionally, administrative action is needed to clarify their “employee” statuses under
the CSRA.8 And notwithstanding the potential lack of “employee” status on the part of either
plaintiff, because administrative review has been undertaken, it may result in the satisfactory
resolution of their claims, thereby relieving the Court of a need to adjudicate their claims. Toca
Producers v. F.E.R.C., 411 F.3d 262, 266 (D.C. Cir. 2005) (“Staying our hand until the
conclusion of the ongoing administrative proceeding could therefore avoid a piecemeal,
duplicative, tactical and unnecessary appeal which is costly to the parties and consumes limited
judicial resources.” (internal quotations and alterations omitted)); Nat’l Treasury, 101 F.3d at
1431 (“[T]he usually unspoken element of the rationale underlying the ripeness doctrine . . . [is
that i]f [the Court] do[es] not decide it now, [it] may never need to. Not only does this rationale
protect the expenditure of judicial resources, but it comports with [the Court’s] theoretical role as
the governmental branch of last resort. Article III courts should not make decisions unless they
have to.” (internal citation omitted)). Further, the Court sees no cognizable hardship to either Dr.
Nicholas or Dr. Smith resulting from any delay in the Court’s review of their claims.9
8
The ongoing administrative investigation of Dr. Nicholas’ complaint appears to conflict with case law holding that
federal contractors are outside of the scope of the CSRA. See Thompson v. Merit Sys. Prot. Bd., 421 F.3d 1336,
1338-39 (Fed. Cir. 2005) (reasoning that an employee of an independent government contractor does not necessarily
fall under the CSRA); Navab-Safavi v. Broad. Bd. of Governors, 650 F. Supp. 2d 40, 67 n.14 (D.D.C. 2009)
(agreeing that “because plaintiff is a contractor and not an employee, the [CSRA] has no application” (internal
citations omitted)), aff’d sub nom. Navab-Safavi v. Glassman, 637 F.3d 311 (D.C. Cir. 2011).
9
The plaintiffs understand that Dr. Smith—even if he is not an employee under the CSRA—should first attempt to
exhaust possible administrative remedies, because they ask the Court to dismiss claims relevant to him “without
prejudice” so that they can be re-plead if there is a “final decision by the [Merit Systems Protection Board]
dismissing Dr. Smith’s termination claim on jurisdictional grounds.” Pls.’ Opp’n. at 45. Further, the plaintiffs ask
the Court to grant “jurisdictional discovery” to ascertain whether Dr. Smith is subject to the CSRA. Pls.’ Opp’n at
44. The Court declines to do so as his claims are not ripe for review.
12
2. The Challenged Employment Actions
“A primary purpose of the CSRA was to safeguard employees-tenured and non-tenured-
who ‘blow the whistle’ on illegal or improper official conduct.” Wren v. Merit Sys. Prot. Bd.,
681 F.2d 867, 872 (D.C. Cir. 1982); see also Frazier v. Merit Sys. Prot. Bd., 672 F.2d 150, 152
(D.C. Cir. 1982) (“A central purpose of the [CSRA] is to provide increased protection for
‘whistleblowers,’ federal employees seeking to disclose wrongdoing in the government.”).
Indeed, “[u]nder no circumstances does the [CSRA, as amended by the Whistleblower Protection
Act,] grant . . . [a] District Court jurisdiction to entertain a whistleblower cause of action brought
directly before it in the first instance.” Stella v. Mineta, 284 F.3d 135, 142 (D.C. Cir. 2002).
The CSRA prohibits agencies from taking or threatening to take certain “personnel
action[s],” i.e., reprisals against employees for whistleblower activities. See 5 U.S.C. §
2302(b)(8); Heard, 2010 WL 3700184, at *6 n.7 (Walton, J.). Personnel actions are broadly
defined to include disciplinary or corrective actions, changes in pay, benefits or awards, changes
in duties, responsibilities or working conditions. See 5 U.S.C. § 2302(a)(2); Weaver, 87 F.3d at
1432-33 (noting that 5 U.S.C. § 2302(a)(2)(A)(iii) covers dismissals and admonishments).
Prohibited personnel actions also include the treatment and management of employees in a
manner that violates “merit system principles,” 5 U.S.C. § 2302(b)(12); id. § 2301(b), such as
failing to treat employees “with proper regard for their privacy and constitutional rights,” id. §
2301(b)(2), or failing to “protect[] [employees] against reprisal for [whistleblowing],” id. §
2301(b)(9).
The plaintiffs have alleged no shortage of facts establishing that the defendants took, or
threatened to take, a variety of prohibited personnel actions against them for their whistleblower
activities. See, e.g., Am. Compl. ¶ 126 (alleging a “[t]argeted surveillance program conducted
13
by the FDA, along with other retaliatory actions”) (emphasis added)); id. at 21 (alleging
“[retaliation against the other whistleblowers]”). For example, the plaintiffs allege that the
“terminat[ions]” of Drs. Smith, Czerska and Nicholas, and Mr. Hardy were 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 . . . 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, 87-91, 103, 107-14, 120; see also 5 U.S.C. § 2302(a)(2)(A)(iii). The
plaintiffs also allege that warning letters and negative performance reviews were consequences
the plaintiffs suffered as a result of their whistleblower activities, Am. Compl. ¶ 104 (“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 to
FDA management.”); id. ¶ 158 (Mr. Hardy received an “extremely negative performance
review”), as well as threats of disciplinary action, id. ¶ 88 (while on 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]”); see also 5 U.S.C. § 2302(a)(2)(A)(iii).
Whether the alleged “targeted surveillance” or threat of “targeted surveillance” by the
defendants in retaliation for the plaintiffs’ whistleblowing activities is a prohibited “personnel
action” appears to be a matter of first impression in this Circuit. “Targeted surveillance” is not
explicitly listed under 5 U.S.C. § 2302(a)(2) as a “personnel action.” Considering, however, that
a “central purpose of the [CSRA] is to provide increased protection for ‘whistleblowers,’”
14
Frazier, 672 F.2d at 152, and this Circuit has unequivocally stated that “[u]nder no circumstances
does the [CSRA, as amended by the Whistleblower Protection Act,] grant . . . the District Court
jurisdiction to entertain a whistleblower cause of action brought directly before it in the first
instance,” Stella, 284 F.3d at 142 (emphasis added); see also Heard, 2010 WL 3700184, at *6 n.7
(Walton, J.), the Court concludes that the defendants’ “targeted surveillance” is best construed as
a “disciplinary or corrective action” under the CSRA. See 5 U.S.C. § 2302(a)(2)(A)(iii).
The plaintiffs’ allegations lend further support for the Court’s conclusion, as they portray
the defendants’ “targeted surveillance” as a measure that was implemented to either “discipline”
or “correct” the whistleblower activities of the plaintiffs. See, e.g., Pls.’ Opp’n at 6 (explaining
that the “[t]argeted [s]urveillance was directly triggered based on the whistleblower disclosures
[the] [p]laintiffs were making (or suspected of making) to various outside entities”); Am. Compl.
¶ 70 (“As a direct consequence of her association with the whistleblower group, the FDA
targeted Dr. Vishnuvajjala by monitoring and intercepting her private communications.”
(emphasis added)); id. ¶ 126 (“The [t]argeted [s]urveillance program conducted by the FDA,
along with the other retaliatory actions described in this complaint, have created a chilling effect
on plaintiffs and other similarly situated employees/contractors[.]”); id. ¶ 148 (“Dr. Czerska, Mr.
Hardy, Dr. Nicholas, Dr. Vishnuvajjala, and Ms. Wersto . . . each was targeted for punitive
[t]argeted [s]urveillance[.]” (emphasis added)). Further bolstering this Court’s conclusion is the
fact that the plaintiffs have complaints under investigation by the Office of Special Counsel—an
administrative body that can only review allegations from federal employees concerning
prohibited personnel actions. See 5 U.S.C. § 1214(a)(1)(A) (“The Special Counsel shall receive
any allegation of a prohibited personnel practice and shall investigate the allegation to the extent
necessary to determine whether there are reasonable grounds to believe that a prohibited
15
personnel practice has occurred, exists, or is to be taken.” (emphasis added)); Defs.’ Mem., ECF
No. 31-5, Ex. 5 (Office of Special Counsel Letter to Congressional Members) at 1 n.1 (noting
that the Office of Special Counsel broadened its investigation to focus on the “prohibited
personnel practices that the complainants have alleged” (emphasis added)); Defs.’ Mem., ECF
No. 31-6, Ex. 6 (Office of Special Counsel Press Release) at 1 (deciding to “broaden[] the scope
of [the] . . . investigation into the surveillance of employees’ emails by the [FDA]” because “the
whistleblowers allege[d] 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”). And these complaints, which have not yet been dismissed on the grounds that they are
not founded upon personnel actions, Am. Compl. ¶¶ 121-23 (describing findings of the Office of
Special Counsel and explaining that those findings have “trigger[ed] a number of additional
review procedures” under the CSRA), are based on substantially the same allegations that are
before the Court. Thus, the Court deems the defendants’ “targeted surveillance” as a
“disciplinary or corrective action” that falls within the scope of the CSRA.
In short, for purposes of the defendants’ motion to dismiss, the Court will analyze each
claim in the complaint as if the plaintiffs were subject to the administrative and remedial scheme
set forth in the CSRA.
B. The Plaintiffs’ Claims
a. Claims One Through Four, Six Through Eight, And Ten
Claims one through four, six through eight, and claim ten, are premised on the
defendants’ alleged reprisals against the plaintiffs for their whistleblower activities. See Am.
Compl. at 25-29 (focusing bases of constitutional violations in claims one through four on the
16
defendants’ “targeted surveillance” of the plaintiffs and the consequences thereof); id. at 30
(predicating sixth claim on the FDA’s termination of Dr. Smith “in retaliation for his speech on
matters of public concern”); id. at 31 (asserting in the seventh claim that the “FDA terminated
Dr. Nicholas from public employment in retaliation for his speech on matters of public
concern”); id. at 32 (identifying the “targeted surveillance” program and “threats of disciplinary
action” as bases for claim eight, which is only asserted by Dr. Vishnuvajjala and Ms. Wersto); id.
at 35 (basing tenth claim on the FDA threatening Dr. Smith if he spoke to others about FDA
matters). As the Court has already explained, and as the defendants correctly note, these are
“classic claims of whistleblower retaliation,” Defs.’ Mem. at 11, that give rise to cognizable
claims under the CSRA’s administrative and remedial scheme, see 5 U.S.C. §§ 2302(a)(2),
(b)(8); Stella, 284 F.3d at 142 (“Under no circumstances does the [CSRA, as amended by the
Whistleblower Protection Act,] grant the District Court jurisdiction to entertain a whistleblower
cause of action brought directly before it in the first instance.”). Given that these claims are
subject to the CSRA, the plaintiffs must first “exhaust[] . . . [their] administrative remedies [a]s a
jurisdictional prerequisite to suit.” Weaver, 87 F.3d at 1433. But the plaintiffs have not done so.
See Am. Compl. ¶¶ 121-23 (explaining that administrative remedies are still being pursued for
the defendants’ retaliatory actions); Defs.’ Mem., ECF No. 31-5, Ex. 5 (Office of Special
Counsel Letter to Congressional Members) at 1 n.1 (noting that Office of Special Counsel is
investigating “prohibited personnel practices that the complainants have alleged”). The Court
must, therefore, dismiss these claims for lack of jurisdiction.
1. The Plaintiffs’ Contentions Regarding Claim One
Most of the plaintiffs’ arguments as to why the CSRA should not preclude the Court from
assuming jurisdiction over these claims grossly miss the mark as they focus heavily on the merits
17
of the plaintiffs’ claims, which are irrelevant to the jurisdictional inquiry under a Rule 12(b)(1)
motion to dismiss. See Pls.’ Opp’n at 18-19 (discussing how “taking” of private emails
constitutes a “taking” of private property in violation of the Takings Clause under the Fifth
Amendment); id. at 16-17, 22-23, 31 (discussing the First Amendment right to communicate
with counsel); id. at 30-31 (discussing the First Amendment right to free speech and to associate
freely); see also Elgin, _ U.S. _, _, 132 S. Ct. at 2136 (explaining that preclusion under the
CSRA is determined by employee status and the challenged government actions, regardless of
the constitutional implications of those actions).
The plaintiffs posit several reasons why the Court has jurisdiction over their first claim.
They argue that there are “exceptions” to CSRA preclusion that are applicable to them and so
they need not exhaust their administrative remedies before bringing this suit. Pls.’ Opp’n at 14,
18. For example, they identify “certain actions by supervisors against federal employees, such as
wiretapping, warrantless searches, or uncompensated takings, . . . [are] not . . . defined as
‘personnel actions’ within the statutory scheme.” Bush, 462 U.S. at 385 n.28. And according to
the plaintiffs, because the first claim is based in part on a violation of the Takings Clause of the
Fifth Amendment, which is not a “personnel action,” then CSRA preclusion does not apply to
this claim. See Pls.’ Opp’n at 14, 18 (quoting Bush, 462 U.S. at 385 n.28); see also Stewart v.
Evans, 275 F.3d 1126, 1130 (D.C. Cir. 2002) (“Bush virtually compels the conclusion that the
[CSRA]” does not preclude a claim based on a “warrantless search.”).
The Court is not persuaded by this argument as it overlooks the fact that the alleged
constitutional violations in the first claim are derived from the FDA’s alleged targeted
surveillance of the plaintiffs, which the Court has already determined is a prohibited “personnel
action” under the CSRA. See 5 U.S.C. § 2302(a)(2)(A)(iii). Although the plaintiffs’ first claim
18
may have a “constitutional nature” to it, that does not mean it is removed from the purview of the
CSRA. Elgin, _ U.S. at _, 132 S. Ct. at 2136 (“[CSRA] . . . exclusivity does not turn on the
constitutional nature of an employee’s claim, but rather on the type of the employee and the
challenged employment action.” (emphasis added)). Neither Bush, 462 U.S. at 385 n.28, nor
Stewart, 275 F.3d at 1130, convinces the Court otherwise, as these cases do not involve
allegations of unconstitutional conduct that arise from prohibited personnel actions under the
CSRA.10
Moreover, the Court refuses to permit the plaintiffs to manipulate the jurisdiction of the
Court based on their “clever drafting of the complaint” or “artful pleading.” Steadman v.
Governor, U.S. Soldiers’ & Airmen’s Home, 918 F.2d 963, 967-68 (D.C. Cir. 1990) (“To permit
the district court’s assertion of jurisdiction would simply put a premium on clever drafting of a
complaint. ‘It would require the suspension of disbelief to ascribe to Congress the design to
allow its careful and thorough remedial scheme to be circumvented by artful pleading.’” (quoting
Brown v. General Servs. Admin., 425 U.S. 820, 833 (1976))). The plaintiffs cannot bypass the
CSRA by merely recasting prohibited personnel actions that fall under the CSRA as
constitutional violations such that they fall outside the reach of the CSRA. This is especially so
here, as the plaintiffs are concurrently pursuing administrative relief for claims that are
substantially similar to the ones before the Court. See Am. Compl. ¶¶ 121-23 (explaining that
“additional review procedures” have been “trigger[ed]” as a result of their filing with Office of
Special Counsel); Defs.’ Mem., Ex. 6 (Office of Special Counsel Press Release) at 1 (deciding to
“broaden[] the scope of [the] . . . investigation into the surveillance of employees’ emails by the .
10
The plaintiffs rely on a similar line of reasoning for claims two, three, four and ten. Pls.’ Opp’n at 28-29, 31
(characterizing defendants’ prohibited personnel actions as “warrantless searches, uncompensated takings[,] and
takings without due process”). The Court rejects the plaintiffs’ logic for the sustainability of these claims on the
same grounds as claim one.
19
. . [FDA]” because “the whistleblowers allege[d] 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 plaintiffs also contend that the “Little” Tucker Act, 28 U.S.C. § 1346(a)(2) (2012),
confers jurisdiction on the Court over their first claim because they are claiming less than
$10,000.00 from the government for an unconstitutional “taking” of private party.11 Pls.’ Opp’n
at 18-19. But where, as here, jurisdiction under the Tucker Act is predicated on a “review of an
underlying personnel action,” the jurisdiction mandates of the CSRA control. Bobula v. U.S.
Dep’t of Justice, 970 F.2d 854, 857 (Fed. Cir. 1992) (“[T]he Little Tucker Act [does not]
explicitly provide[] for review of an underlying personnel action. To the extent that the courts
prior to the CSRA have interpreted the Little Tucker Act . . . as providing for review of an
underlying federal personnel action, such judicial interpretations must give way to the
congressional intent to replace the haphazard arrangements for administrative and judicial review
of personnel action with the CSRA.” (internal quotations omitted)).
Further attempting to justify the Court’s jurisdiction over the first claim, the plaintiffs
argue that the Court can hear cases involving violations of the Fifth Amendment where
injunctive or declaratory relief is sought. See Pls.’ Opp’n at 19. Assuming that this is an
accurate statement of the law, it is nevertheless inconsequential as they have brought a claim
11
Despite the plaintiffs’ allegations of unconstitutional “takings,” the plaintiffs acknowledge that the defendants’
“takings” had no monetary value. Pls.’ Opp’n at 18-19. The Court, fortunately, need not assess whether jurisdiction
would be proper under the Little Tucker Act if a plaintiff’s claim for an unconstitutional “taking” has no monetary
value—which certainly satisfies the under $10,000 limitation. Further, the Court notes that although the plaintiffs
cite several bases for the Court having subject matter jurisdiction, see Am. Compl. ¶ 1, aside from the Little Tucker
Act, they never seriously contend that any of these bases could override the preclusionary effect of the CSRA.
20
founded upon prohibited personnel actions under the CSRA.12 See Elgin, _ U.S. at _, 132 S. Ct.
at 2132 (holding that the “CSRA precludes district court jurisdiction over . . . claims even though
they are constitutional claims for equitable relief”).
Finally, the plaintiffs argue that the Office of Special Counsel and the Merit Systems
Protection Board, administrative bodies responsible for investigating the plaintiffs’ complaints
under the CSRA, are unable to provide some of the relief they seek. Pls.’ Opp’n at 19. But an
inability to obtain all of the relief the plaintiffs desire does not excuse their obligation to exhaust
their administrative remedies. See Spagnola v. Mathis, 859 F.2d 223, 227 (D.C. Cir. 1988) (“[I]t
is the comprehensiveness of the statutory scheme involved, not the adequacy of specific
remedies extended thereunder, that counsels judicial abstention[.]”); Hunt v. U.S. Dep’t of
Agric., 740 F. Supp. 2d 41, 49 (D.D.C. 2010) (“Even if the remedies afforded by the CSRA in
this particular case are inadequate, as [the plaintiff] asserts, such a circumstance does not
advance [the plaintiff’s] position [that the plaintiff can bypass the CSRA].” (citing Bush, 462
U.S. at 388)).
2. The Plaintiffs’ Contentions Regarding Claim Eight
Hoping to provide a basis for the Court’s jurisdiction over the eighth claim, the plaintiffs
rely heavily on Weaver, 86 F.3d at 1434, for the proposition that at least Dr. Vishnuvajjala and
Ms. Wersto should be permitted to proceed on the this claim because they are challenging the
“chilling effect” caused by the defendants’ covert surveillance “program.” See Pls.’ Opp’n at
16, 24-28; Am. Compl. ¶¶ 172-77. This analogy they ask the Court to make between this case
and Weaver is flawed.
12
E. Enters. v. Apfel, 524 U.S. 498, 522 (1998) and Crocker v. U.S., 37 Fed. Cl. 191, 194-95 (1997), are inapposite
in many respects. Critically, though, neither case contains allegations of prohibited personnel actions under the
CSRA that led to the constitutional violations of the Fifth Amendment.
21
In Weaver, the State Department had a Foreign Affairs Manual, which required that
materials employees wished to have published had to undergo “prepublication review” by the
agency. 86 F.3d at 1431-32. When the plaintiff failed to abide by this “regulation,” he received
an “oral admonishment” for the transgression. Id. at 1432. The plaintiff eventually filed suit
challenging the constitutionality of both the oral admonishment and the State Department’s
regulation. See id. at 1432-33. Notably, the District of Columbia Circuit held that the district
court lacked jurisdiction to hear the plaintiffs’ oral admonishment claim for which the plaintiff
had not pursued administrative relief under the CSRA. See id. at 1433 (“The exhaustion
requirement generally applies as well to claims arising directly under the Constitution . . . when
such claims are “‘premised on the same facts’” as the plaintiff’s CSRA claims . . . .” (quoting
Steadman, 918 F.2d at 967)). The Circuit ruled, however, that the plaintiff’s constitutional
challenge to the State Department regulation could proceed without exhausting administrative
remedies under the CSRA because it “st[ood] independently” of the challenge to the oral
admonishment. Id. at 1434. In other words, the challenge was a “pre-enforcement” attack on
[the] regulation.” Id.
Here, none of the plaintiffs mount an attack on a “regulation” or “rule” of any of the
defendants. As the defendants correctly point out, “the plaintiffs in this case do not challenge a
regulation or rule that ‘stands independently’ from the personnel actions of which they
complain.” Defs.’ Reply at 10. “Rather [they] complain of a series or collection of personnel
actions . . . .” Id. Underlying a “pre-enforcement” challenge to a government regulation or rule
is the presumption that the government’s regulation or rule had already been in place prior to the
government enforcing that regulation or rule against an employee. See Weaver, 86 F.3d at 1432
(“Even before receiving the admonishment, [the plaintiff] filed suit challenging [the regulation in
22
the State Department’s Foreign Affairs Manual] on First Amendment grounds . . . .” (emphasis
added)). Aside from conclusory allegations in the complaint, the plaintiffs have not met their
burden of demonstrating that the defendants had a “targeted surveillance program” in effect
before each of the plaintiffs was subjected to targeted surveillance. Just because the plaintiffs
were allegedly subjected to similar prohibited personnel actions by the defendants, does not
mean that the defendants were acting pursuant to a “regulation” or “rule.” None of the other
cases cited by the plaintiffs require a different conclusion.13
This is not the “unusual case in which the constitutional claim[s] raise[] issues totally
unrelated to the CSRA.” Steadman, 918 F.2d at 967; see also Weaver, 87 F.3d at 1434 (holding
that exhaustion under the CSRA is necessary when a “constitutional claim is intertwined with . . .
[and] the sole basis [thereof is a CSRA claim]” (emphasis added)). And the eighth claim is not a
constitutional claim that is factually independent of the reprisals for whistleblower activities.
Rather, the events supporting the constitutional violations alleged in the eighth claim are a direct
result of the defendants’ personnel practices challenged by the plaintiffs. See, e.g., Pls.’ Opp’n
at 6 (“Targeted [s]urveillance” was directly triggered based on the whistleblower disclosures
[the] [p]laintiffs were making (or suspected of making) to various outside entities.”); Am.
Compl. ¶ 33 (“All six [p]laintiffs and all individuals subject to [t]argeted [s]urveillance by
association with the [p]laintiffs were targeted because of their viewpoints as whistleblowers and
because of their protected speech to Congress and other appropriate authorities.”); id. at 32-33
13
Additional examples, cited by the plaintiffs, of courts permitting “pre-enforcement” constitutional challenges of
government regulations that restrict employee speech include United States v. Nat’l Treasury Emps. Union, 513
U.S. 454, 457 (1995) and Sanjour v. EPA, 56 F.3d 85, 91 (D.C. Cir. 1995) (en banc). Pls.’ Opp’n at 15-16, 25.
Because the Court does not find that the eighth claim is a “pre-enforcement” challenge to a governmental
“regulation” or “rule,” these cases are not helpful.
23
(basing claim eight upon “targeted surveillance of Dr. Vishnuvajjala and Ms. Wersto, and the
threats of disciplinary action against them”).
b. Claim Nine
The plaintiffs’ ninth claim, brought on behalf of Dr. Smith, Dr. Nicholas, and Mr. Hardy,
alleges that the defendants’ targeted surveillance of employees who are whistleblowers, or their
associates, has impeded these plaintiffs’ efforts to lawfully access information from other
employees of the defendants. See Am. Compl. ¶¶ 178-84. This, they argue, is a violation of the
First Amendment “right to receive information.” See, e.g., id. ¶¶ 181-82 (alleging that FDA’s
targeted surveillance has “chilling effect” that “impedes” the ability of certain of the defendants
to “access lawful information”). The defendants contend that these plaintiffs lack standing to
assert this claim. See Defs.’ Mem. at 25; Defs.’ Reply at 18-19.
The Constitution limits the jurisdiction of this Court to resolving only “cases” or
“controversies.” Lance v. Coffman, 549 U.S. 437, 439 (2007); Fla. Audubon Soc’y v. Bentsen,
94 F.3d 658, 663 (D.C. Cir. 1996). The party that invokes federal jurisdiction bears the burden
of establishing the elements of standing “in the same way as any other matter on which the
plaintiff bears the burden of proof.” Lujan v. Defenders of Wildlife, 504 U.S. 555, 561 (1992).
The constitutional minimum of standing is satisfied if a plaintiff shows that the claims “spring
from an ‘injury in fact’—an invasion of a legally protected interest that is ‘concrete and
particularized,’ ‘actual or imminent,’ [and] ‘fairly traceable’ to the challenged act of the
defendant, and likely to be redressed by a favorable decision in the federal court.” Navegar, Inc.
v. United States, 103 F.3d 994, 998 (D.C. Cir. 1997) (quoting Lujan, 504 U.S. at 560-61). If an
alleged injury is hypothetical or conjectural, the “injury-in-fact” requirement is not satisfied. See
Lujan, 504 U.S. at 560.
24
Further, “[i]t is well established that [plaintiffs], as listeners, can suffer injury from
government regulations that prevent speakers from saying what the listeners wish to hear.”
Competitive Enter. Inst. v. U.S. Dep’t of Transp., 856 F.2d 1563, 1566 (D.C. Cir. 1988) (citing
Va. State Bd. of Pharmacy v. Va. Citizens Consumer Council, Inc., 425 U.S. 748 (1976)).
“[W]here a speaker exists . . . the protection afforded [by the First Amendment] is to the
communication, to its source and to its recipients both.” Va. State Bd. of Pharmacy, 425 U.S. at
756. But “[t]he right to receive information . . . is not established in every case where a person
wishes to receive information.” Gregg v. Barrett, 771 F.2d 539, 547 (D.C. Cir. 1985). An
allegedly aggrieved listener, who wishes to receive information but for a government regulation,
must be able to identify a “willing speaker.” Competitive Enter. Inst., 856 F.2d at 1566(“Whether the injury is phrased as a deprivation of information that the listener would find useful
or the interference with a relationship between speaker and listener, a government regulation
cannot cause that injury unless petitioners can identify a willing speaker.”).
Noticeably absent from the plaintiffs’ complaint is the identity of any specific “willing
speaker,” which is necessary to show an injury-in-fact for purposes of standing to assert this
claim. See id. (“[A] government regulation cannot cause that injury unless petitioners can
identify a willing speaker[.]”).14 Claim nine repeatedly alludes to “employees or []contractors[]”
as individuals who have potentially had their speech “chilled” as a result of the defendants
targeted surveillance. Am. Compl. ¶¶ 180-82. These generic terms—which reflect mere
conjecture—do not meet the level of specificity needed to satisfy the constitutional requirement
14
Despite the plaintiffs’ recognition that the defendants have not challenged the merits of claim nine, Pls.’ Opp’n at
32 n.15, they nevertheless discuss them in length, id. at 32-35. This again is irrelevant to the defendants’ motion to
dismiss.
25
of standing when pleading a violation of the First Amendment right to receive information. See
Competitive Enter. Inst., 856 F.2d at 1566.
The plaintiffs attempt to cure this deficiency through the submission of three affidavits,
attached to their opposition memorandum, from Mr. Hardy, Dr. Smith, and Ms. Wersto that they
contend “establish the facts necessary to meet the ‘willing speaker’ standard.” Pls.’ Opp’n at 32;
id., Ex. 4 (Affidavit of Nancy Wersto); Pls.’ Opp’n, Ex. 5 (Affidavit of Julian Nicholas); Pls.’
Opp’n, Ex. 6. (Affidavit of Dr. Robert C. Smith). Although the plaintiffs’ representation about
the substance of these affidavits may be accurate, the Court will not consider the belated
affidavits as “[i]t is a well-established principle of law in this Circuit that [the plaintiffs] may not
amend [their] complaint by making new allegations in [the] opposition brief.” Budik v. Ashley,
_ F. Supp. 2d _, _, No. 12-cv-1949(RBW), 2014 WL 1423293, at *8 (D.D.C. Apr. 14, 2014)
(Walton, J.) (citing Larson v. Northrop Corp., 21 F.3d 1164, 1173-74 (D.C. Cir. 1994)). Thus,
the plaintiffs have not established that Mr. Hardy, Dr. Smith, and Ms. Wersto have standing.
The Court, therefore, lacks jurisdiction over this claim.
c. Claim Eleven
The eleventh claim in the complaint accuses the FDA of violating the First Amendment.
Am. Compl. at 35. Specifically, the plaintiffs assert that the FDA, through its targeted
surveillance of its employees, has suppressed the speech of its employees, and thus violated the
First Amendment rights of “the public” to associate with the plaintiffs, including Mr. Hardy, and
to obtain information about its government. See Am. Compl. ¶¶ 188-92. In response, the
defendants contend that the plaintiffs lack standing to pursue a claim on behalf of “the public.”
Defs.’ Mem at 25.
26
The Supreme Court has “consistently held that a plaintiff raising only a generally
available grievance about government—claiming only harm to his and every citizen’s interest in
proper application of the Constitution and laws, and seeking relief that no more directly and
tangibly benefits him than it does the public at large” does not have standing. Lujan, 504 U.S. at
573-74; see also Elec. Privacy Info. Ctr. v. U.S. Dep’t of Homeland Sec., 653 F.3d 1, 9-10 (D.C.
Cir. 2011) (explaining a litigant “‘generally must assert his own legal rights and interests, and
cannot rest his claim to relief on the legal rights or interests of third parties” (quoting Warth v.
Seldin, 422 U.S. 490, 499 (1975)).
What has been forbidden by the Supreme Court and this Circuit is exactly what the
plaintiffs want to do here. Claim eleven seeks to uphold the public’s First Amendment rights to
free speech and association on the basis that the FDA’s targeted surveillance of certain of its
employees curtails both of these rights. Am. Compl. ¶¶ 189-92. This claim amounts to nothing
more than a generalized grievance against the FDA and its alleged targeted surveillance. See
Lujan, 504 U.S. at 573; Schwaninger & Associates v. FCC, No. 00-1026, 2000 WL 817892, at
*1 (D.C. Cir. May 19, 2000) (“To the extent petitioner bases its standing on its interest, shared
with other members of the public, in assuring that the FCC does not engage in improper or
unethical activity, this claim amounts to nothing more than a generalized grievance shared in
substantially equal measure by all or a large class of citizens, which by itself does not warrant
exercise of jurisdiction.” (internal citations and quotations omitted)). Having only pleaded a
generalized grievance on behalf of the members of the public in claim eleven, the plaintiffs lack
standing to pursue this claim.
The plaintiffs cite Sec’y of State of Md. v. Joseph H. Munson Co., 467 U.S. 947 (1984)
and Sanjour v. EPA, 7 F. Supp. 2d 14, 16 (D.D.C. 1998), for the proposition that they have
27
standing to sue on behalf of the public concerning First Amendment violations that chill speech.
Pls.’ Opp’n at 35-36. But these cases are inapposite. Munson allowed a litigant “to assert the
rights of another without regard to the ability of the other to assert his own claims,” but only
“where the claim is that a statute is overly broad in violation of the First Amendment.” 467 U.S.
at 957 (emphasis added). No such challenge of a statute has been made by the plaintiffs here.
And in Sanjour, the Court considered the “interests of both potential audiences and . . . other
present and future employers,” in the context of examining the proper scope of “an injunction
granting government-wide relief,” and not in the context of assessing standing. Sanjour, 7 F.
Supp. 2d at 16 (internal quotations omitted).
d. Claim Twelve
The final claim of the complaint alleges that the defendants violated the Lloyd-La
Follette Act, 5 U.S.C. § 7211. Am. Compl. ¶¶ 193-97. The Lloyd-La Follette Act provides that
an employee’s right “to petition Congress or a Member of Congress, or to furnish information to
either House of Congress, or to a committee or Member thereof, may not be interfered with or
denied.” 5 U.S.C. § 7211. The defendants argue there is no private right of action under this
statute. See Defs.’ Mem. at 26; Defs.’ Reply at 20. The plaintiffs, including Mr. Hardy, have
not responded to this argument—they merely explain their rationale as to why they included this
claim in the complaint. Pls.’ Opp’n at 27 n.12. Accordingly, the Court will deem the plaintiffs
to have conceded the motion to dismiss for lack of subject matter jurisdiction as to this claim.
See Lewis v. District of Columbia, No. 10-5275, 2011 WL 321711, at *1 (D.C. Cir. Feb. 2,
2011) (per curiam) (“‘It is well understood in this Circuit that when a plaintiff files an opposition
to a dispositive motion and addresses only certain arguments raised by the defendant, a court
may treat those arguments that the plaintiff failed to address as conceded.’”) (quoting Hopkins v.
28
Women’s Div., Gen. Bd. of Global Ministries, 284 F. Supp. 2d 15, 25 (D.D.C. 2003), aff’d, 98 F.
App’x 8 (D.C. Cir. 2004)); Local Civ. R. 7(b).
C. Whether Paul T. Hardy’s Claims Are Precluded
Prior to joining this suit with the other plaintiffs, Mr. Hardy had sought administrative
relief for the defendants’ reprisals for his whistleblower activities under the CSRA, but failed to
have the merits of his complaint fully adjudicated because he was not an “employee” for
purposes of the CSRA. Defs.’ Mem. at 10-11 (citing Hardy, 117 M.P.S.R. at 175); Am. Compl.
¶¶ 109-14. Thus, there is no dispute that the CRSA does not afford Mr. Hardy administrative
remedies. Defs.’ Mem. at 11 (“[Mr. Hardy] is not, as a matter of law, covered by the CSRA”);
Pls.’ Opp’n at 39 (agreeing that “Mr. Hardy falls completely outside of the ambit of the CSRA”).
But the defendants insist Mr. Hardy is still precluded from bringing this lawsuit because he has
not exhausted his administrative remedies as an officer of the Public Health Service
Commissioned Corps (“Commissioned Corps”) officer. Defs.’ Mem. at 20. Specifically, the
defendants note that he has not sought relief from the Board for Correction of Public Health
Service Commissioned Corps for his claims of reprisals for whistleblower activity. See id. at 6-
8; Defs.’ Reply at 14-16. In response, the plaintiffs challenge the applicability and adequacy of
seeking administrative relief from the Board for Correction of Public Health Service
Commissioned Corps. See Pls.’ Opp’n at 41-42.
The Court agrees with the plaintiffs that as an officer of the Public Health Service
Commissions Corps he was not statutorily protected from reprisals for whistleblower activity at
the time he joined the other plaintiffs in filing this case, and thus had no administrative remedies
to exhaust. See Verbeck v. United States, 89 Fed. Cl. 47, 61-62 (Fed. Cl. 2009). At that time, no
29
statute protected whistleblowers who were officers of the Public Health Service Commissioned
Corps. As the Court held in Verbeck:
As an officer in the [Public Health Service] Commissioned Corps, [the plaintiff]
was a member of a uniformed service and is thus not eligible for the protections
of the whistleblower act pertinent to civilian employees of the federal
government. Furthermore, [the plaintiff] is not able to avail herself of the
Military Whistleblower Protection Act because Congress, in enacting and
subsequently amending 42 U.S.C. § 213a [(2012)], has specified which provisions
of Title 10 of the United States Code shall apply to the Commissioned Corps but
has not included the Military Whistleblower Protection Act as one of the
incorporated provisions. The resulting gap in coverage means that, as a member
of the [Public Health Service] Commissioned Corps, [the plaintiff] was not
entitled to receive the protection of whistleblower protection provisions found in
the United States Code.
Id. (internal citations omitted).15
Subject matter jurisdiction, however, does not flow as a matter of course from the
unavailability of administrative remedies. This Court was recently confronted with a similar
situation in Davis v. Billington, _ F. Supp. 2d. _, _, 2014 WL 2882679, at *4-*5 (D.D.C. June
25, 2014). There, as here, the plaintiff was “not entitled to administrative review under the
CSRA.” Id. at *5. In such circumstances, only if “it is clear that Congress intended to preclude
all judicial review of colorable constitutional claims, [can] the Court . . . find that it does not
have jurisdiction.” Id. (internal citation omitted). For example, “when Congress intends to bar
15
The defendants cite several provisions of the Public Health Service Commissioned Corps Personnel Manual as
providing administrative avenues of relief that Mr. Hardy could have sought before instituting this action. See
Defs.’ Mem. at 20-23; Defs.’ Reply at 14-17. However, in light of the absence of any statutory protections for
whistleblowing officers of the Public Health Service Commissioned Corps, the Court finds the defendants’
arguments speculative, at best, as to whether administrative relief was available for Mr. Hardy. See Verbeck, 89
Fed. Cl. at 61 (“The government asserts that protections afforded whistleblowers do not apply to [the Public Health
Service] Commissioned Corps. The government notes that 10 U.S.C. § 1034, the Military Whistleblower Protection
Act, is the only statutory provision governing whistleblowing that a member of the uniformed services could invoke,
but the government asserts that the Military Whistleblower Protection Act does not apply to the Commissioned
Corps.”). Notably, the government in Verbeck did not identify any provisions in the Public Health Service
Commissioned Corps Personnel Manual that offered protection for whistleblowers in the Public Health Service
Commissioned Corps.
30
judicial review altogether, it typically employs . . . unambiguous and comprehensive” language.
Lindahl v. Office of Personnel Mgmt., 470 U.S. 768, 779-80 (1985). In a footnote illustrating
this point, the Supreme Court in Lindahl referenced the language of 5 U.S.C. § 8128(b), which
addresses compensation for work-related injuries and states:
The action of the Secretary [of Labor] or his designee in allowing or denying a
payment under this subchapter is—(1) final and conclusive for all purposes and
with respect to all questions of law and fact; and (2) not subject to review by
another official of the United States or by a court by mandamus or otherwise.
Id. at 780, 780 n.13 (quoting 5 U.S.C. § 8128(b)). The Court provided as a further example the
statutory language of 38 U.S.C. § 211(a), which addresses benefits for veterans and provides
that:
The decisions of the Administrator on any question of law or fact under any law
administered by the Veterans’ Administration providing benefits for veterans and
their dependents or survivors shall be final and conclusive and no other official or
any court of the United States shall have power or jurisdiction to review any such
decision by an action in the nature of mandamus or otherwise.
Id. (quoting 38 U.S.C. § 211(a) (2012)). No such language in either the CSRA or the Military
Whistleblower Protection Act definitively prohibits officers of the Public Health Service
Commissioned Corps from having constitutional claims considered by a court.16 The fact that
they lacked statutory protection does not necessarily mean they had no recourse in the district
courts. The District of Columbia Circuit has “held that the district courts are open to challenges
seeking equitable relief on constitutional grounds, at least where the CSRA does not provide an
adequate alternative route to judicial review.” Suzal v. Dir., U.S. Info. Agency, 32 F.3d 574, 586
16
The Military Whistleblower Protection Act of 1988, 10 U.S.C. § 1034(b), protects members of the “armed
forces” from reprisals for whistleblower activities. “The term ‘armed forces’ means the Army, Navy, Air Force,
Marine Corps, and Coast Guard.” Id. § 101(a)(4). Because this definition excluded officers of the Commissioned
Corps until recently, as the plaintiffs point out, they were left without whistleblowing protection. The exclusion of
the Commissioned Corps from the definition of “armed services,” and thus certain statutory protections afforded to
them, however, does not arise to the unequivocal language found in the statutory examples referenced in Lindahl.
31
(D.C. Cir. 1994) (citing cases). Therefore, “in keeping with the longstanding law of this Circuit
that favors permitting plaintiffs the opportunity to bring constitutional claims for injunctive relief
in the district court,” Davis, _ F. Supp. 2d. _, _, 2014 WL 2882679 at *6, the Court has
jurisdiction over Mr. Hardy’s constitutional claims so long as some of the relief requested can be
granted by the Court. See id. (citing James Madison Ltd. by Hecht v. Ludwig, 82 F.3d 1085,
1092 (D.C. Cir. 1996)).
The Court is unconvinced, at this juncture, that it could not grant at least some relief to
Mr. Hardy. The primary relief sought by Mr. Hardy is reinstatement into the Public Health
Service Commissioned Corps.17 See Pls.’ Opp’n at 39, 43; Am. Compl. ¶ (w). The defendants
do not argue that the Court lacks the authority to grant this relief. Rather, they challenge the
adequacy of the relief, and thus Mr. Hardy’s standing to bring claims against the defendants. See
Defs.’ Mem. at 23-24; Defs.’ Reply at 17. They contend that if Mr. Hardy were reinstated, he
would be immediately discharged because the Public Health Service Commissioned Corps never
promoted him, which is a prerequisite to maintaining his employment with the Public Health
Service Commissioned Corps. See Defs.’ Mem. at 23-24; Defs.’ Reply at 17; see also 42 U.S.C.
§ 211(g) (“If . . . an officer of the Regular Corps . . . is found . . . not to be qualified for
promotion he shall be separated from the Service.”). The defendants’ contention is conclusory at
best. They have not explained why upon reinstatement, the Public Health Service
Commissioned Corps could not reevaluate Mr. Hardy’s work performance and promote him—
without regard to his whistleblower activities. Indeed, as alleged in the complaint, the failure to
promote Mr. Hardy appears to be solely on the basis of his protected speech. See Am. Compl. ¶
158 (“in retaliation for Mr. Hardy’s speech on matters of public concern . . . Mr. Hardy
17
Despite pleading many other types of relief, this is the only one that the defendants seriously challenge in their
motion to dismiss.
32
[received] an extremely negative performance review”); id. ¶ 159 (“None of Mr. Hardy’s speech
disrupted the workplace operations of the [Public Health Service], [the] FDA, or U.S.
government.”).
Despite the Court’s finding that it has subject matter jurisdiction over Mr. Hardy’s
claims, that does not end the jurisdictional inquiry. The plaintiffs admit that Congress,
recognizing a “gap” in whistleblower protection for officers of the Public Health Service
Commissioned Corps, passed an amendment in July 2012, after this case was initiated, that
created “a statutory remedy” for whistleblowers such as Mr. Hardy. Pls.’ Opp’n at 40 (citing
Pub. L. No. 112-144, § 1129 (codified as amended in 42 U.S.C. § 213a(a)(18)) (emphasis
added); 158 Cong. Rec. S3491 (daily ed. May 23, 2012) (statement of Rep. Grassley) (“I offered
an amendment that expands whistleblower protection for uniformed employees of the Public
Health Service. It corrects the anomaly pointed out by [Verbeck, 89 Fed. Cl. at 61-62] and
ensures that officers in the Public Health Service have some baseline whistleblower protection.
It expressly includes the commissioned corps of the Public Health Service within the protections
of the Military Whistleblower Protection Act.”). So now under 42 U.S.C. § 213a(a)(18),
“[c]ommissioned officers of the [Public Health Service] . . . are entitled to all the rights, benefits,
and immunities now or hereafter provided for commissioned officers of the Army . . . under [10
U.S.C. § 1034],” which “prohibits retaliatory personnel actions” for whistleblower activities.
The plaintiffs further admit “that Mr. Hardy can use [this amendment] to obtain reinstatement.”
Pls.’ Opp’n at 40 n.16 (emphasis added). Yet the parties have not considered whether this Court
can apply the recently enacted amendment, despite the fact that it came into effect after this case
commenced.
33
Regardless of whether the parties addressed this issue, the Court has an obligation to do
so because it affects its jurisdiction over Mr. Hardy’s claims. See Fed. R. Civ. P. 12(h)(3) (“If
the court determines at any time that it lacks subject-matter jurisdiction, the court must dismiss
the action.” (emphasis added)). Although neither the amendment nor the legislative history
appears to indicate that the amendment’s protections should be afforded to officers of the Public
Health Service Commissioned Corps before its effective date, the Court is not necessarily
prevented from reaching that conclusion. See Landgraf v. USI Film Prods., 511 U.S. 244, 273
(1994) (“Even absent specific legislative authorization, application of new statutes passed after
the events in suit is unquestionably proper in many situations.”).
Generally, the “retroactive” application of laws is disfavored. Id. at 267-69. The general
prohibition against “retroactivity” stems from the fact that it “would impair rights a party
possessed when [the party] acted, increase a party’s liability for past conduct, or impose new
duties with respect to the transactions already completed.” Id. at 280. But “[a] statute does not
operate ‘retrospectively’ merely because it is applied in a case arising from conduct antedating
the statute’s enactment.” Id. at 269. Indeed, the Supreme Court has “regularly applied
intervening statutes conferring or ousting jurisdiction, whether or not jurisdiction lay when the
underlying conduct occurred or when the suit was filed.” Id. at 274. “Present law normally
governs in such situations because jurisdictional statutes speak to the power of the court rather
than to the rights or obligations of the parties.” Id. at 274 (internal quotations omitted). And that
is because the “[a]pplication of a new jurisdictional rule usually takes away no substantive right
but simply changes the tribunal that is to hear the case.” Id. (quoting Hallowell v. Commons,
239 U.S. 506, 508 (1916)). Accordingly, the District of Columbia Circuit has ruled that
following changes in procedural law, this Court must “apply the law in effect at the time it
34
renders its decision, unless doing so would result in manifest injustice.” Moore v. Agency for
Int’l Dev., 994 F.2d 874, 878-79 (D.C. Cir. 1993); see also LaFontant v. I.N.S., 135 F.3d 158,
162 (D.C. Cir. 1998) (concluding that “a statute that takes away jurisdiction from the federal
courts and vests exclusive authority in an executive agency to resolve certain disputes be
considered a jurisdictional rule . . . that simply changes the tribunal that is to hear the case”
(internal quotations omitted)); id. (recognizing that “jurisdictional change from an Article III
court to an administrative decision maker is simply a change” in who hears the case); Legal
Assistance for Vietnamese Asylum Seekers v. Dep’t of State, 104 F.3d 1349, 1352 (D.C. Cir.
1997) (“[c]hanges in procedural rules will not often raise problems of retroactivity” because no
substantive rights will be lost).
Because this Circuit requires the Court to apply “the law in effect at the time it renders its
decision,” Moore, 994 F.2d at 879-80, the Court must apply 42 U.S.C. § 213a(a)(18) in this case
and direct Mr. Hardy to seek his “statutory remedy,” Pls.’ Opp’n at 40 n.16, for any of his claims
regarding the defendants’ reprisals against his whistleblower activities. Requiring Mr. Hardy to
present his allegations to “an administrative decision maker” does not divest him of any
substantive right. LaFontant, 135 F.3d at 162; see also Landgraf, 511 U.S. at 274; Legal
Assistance, 104 F.3d at 1352. All of the alleged whistleblower reprisals he suffered during his
time as an officer of the Public Health Service Commissioned Corps working at the FDA can
still be investigated and remedied, as he will be afforded whistleblower protection under 10
U.S.C. § 1034. See 42 U.S.C. § 213a(a)(18) (providing whistleblower protection under 10
U.S.C.§ 1034 to Commissioned Corps officers of the Public Health Service); see also Hernandez
v. United States, 38 Fed. Cl. 532, 535-36 (Fed. Cl. 1997) (detailing “investigative and
35
administrative remedies for alleged retaliatory actions” under 10 U.S.C. § 1034).18 The Court’s
application of the amendment is not impermissibly retroactive because the amendment is
procedural in nature and does not substantively affect Mr. Hardy’s entitlement to relief. See
LaFontant, 135 F.3d at 163; Pls.’ Opp’n at 40 n.16.19 Further, as 10 U.S.C. § 1034 “provides
strictly administrative remedies” and “does not afford . . . a private cause of action” for a
plaintiff, Hernandez, 38 Fed. Cl. at 536, the Court must dismiss his claims against the defendants
that are based on reprisals for his whistleblower activities. Therefore, with respect to Mr. Hardy,
claims one through five will be dismissed for lack of subject matter jurisdiction.20
V. CONCLUSION
For the foregoing reasons, the Court will dismiss all of the claims in the complaint
without prejudice.21
18
If Mr. Hardy sought relief under 5 U.S.C. § 1214 for the defendants’ prohibited personnel conduct in the first
instance, the Court sees no reason why administrative relief would be inadequate under 10 U.S.C. § 1034. See Pls.’
Opp’n at 40 n.16 (recognizing that Mr. Hardy can use 10 U.S.C. § 1034 “to obtain reinstatement”); Hardy, 117
M.P.S.R. at 175 (using 5 U.S.C. § 1214 to obtain “reinstat[ement]”); Am. Compl ¶¶ 109-11 (same).
19
This situation is a compelling candidate for the Court’s application of a procedural rule enacted after the
commencement of suit. The impetus for congressional action appears to have been Mr. Hardy and his unsuccessful
attempt to secure administrative relief for the allegations concerning the FDA’s reprisals for his whistleblowing
conduct. See Pls.’ Opp’n at 40 (“Congress promptly acted soon after the [Merit Systems Protection Board’s] Hardy
decision and created a statutory remedy for [Commissioned Corps] whistleblowers.”); 158 Cong. Rec. S3491 (daily
ed. May 23, 2012) (statement of Rep. Grassley) (“[T]he FDA intentionally went after an employee because it knew
this employee was not covered by the Whistleblower Protection Act . . . . This employee in question was a member
of the Public Health Service Commissioned Corps [.]”).
20
Claims six through eight, and ten, were not brought on behalf of Mr. Hardy. Claims nine, eleven, and twelve,
although based in part on retaliatory actions allegedly taken by the defendants, are already being dismissed on
grounds unrelated to the failure to exhaust administrative remedies under 10 U.S.C. § 1034.
21
The Court has contemporaneously issued an Order consistent with this Memorandum Opinion.
36