Whistleblowers file brief to prevent case dismissal

Six current and former FDA medical device reviewers asked a federal court late Wednesday to deny a motion from the U.S. Department of Justice seeking to dismiss a lawsuit claiming that the agency engaged in illegal surveillance and retaliatory personnel actions. The DoJ filed the motion to dismiss the case in October, arguing that the law requires the plaintiffs to exhaust administrative remedies before turning to the courts. The plaintiffs argued in their response brief that Fifth Amendment due process constitutional violations fall outside of this requirement. The government also asked the court to dismiss the case for lack of standing, alleging that the plaintiffs failed to show that they were harmed by identifying "otherwise willing speakers who will not provide information to them due to FDA's actions." The plaintiffs said in response that the "fear of being subjected to targeted surveillance" by the agency "would objectively chill the willingness of FDA or [public health service] employees to communicate" with at least two of the reviewers (see BioCentury Extra, Oct. 1).

The plaintiffs requested oral arguments, but the government first has the opportunity to file a reply brief. ...