Earlier this week a federal judge dismissed a lawsuit by six former and current FDA scientists who allege that the FDA retaliated and spied on them for blowing the whistle on FDA approval of medical devices that put cancer patients at risk.

But Judge Reggie Walton made it clear that his dismissal was on purely procedural grounds and not because the FDA is innocent. In fact, he went out of his way to say he found the charges against the FDA “troubling” and that the plaintiffs “alleged no shortage of facts establishing that the defendants [FDA and HHS] took, or threatened to take, a variety of prohibited personnel actions against them for their whistleblower activities.”

The controversy dates back to early 2009, when the scientists wrote to the Obama transition team to warn about corruption in the FDA device review process. The letter was leaked to the public. What followed was an all-out surveillance effort by the FDA, including spying on the scientists’ personal email accounts.

The resulting uproar caused HHS to issue new guidelines on surveillance and the Office of Special Counsel to warn federal agencies against spying as a method of retaliation. Earlier this year, the Government Accountability Office released a report concluding that the FDA failed to consider the legal implications before launching its surveillance effort. All in all, a very black eye for the FDA.

So why did the judge dismiss the case? Solely on procedural grounds. The scientists are civil servants and thus obliged to follow the steps in the Civil Service Reform Act. They can’t go to court until those procedural steps have been completed.