Archives for August 2013

Submission to ProPublica’s Redaction Classic

ProPublica’s Redaction Classics highlights egregious examples of redacted documents obtained with FOIA requests. Our submission:

Responding to our FOIA request seeking information about discretionary grants at the Department of Education, DoE provided us with 665  BLANK pages in one document with a (b)(5) at the top. These documents were related to the discretionary grants for the High School Equivalency Program (HEP).

665 Blank Pages for FOIA response


LabMD Responds to Federal Trade Commission’s Witch Hunt

FOR IMMEDIATE RELEASE                                                                                                 

August 29, 2013

LabMD Responds to Federal Trade Commission’s Witch Hunt

FTC action a clear example of federal government overreach


WASHINGTON – Today, the Federal Trade Commission (FTC) filed a complaint against LabMD claiming a violation of the Federal Trade Commission Act.

LabMD responded:

“The Federal Trade Commission’s enforcement action against LabMD based, in part, on the alleged actions of Internet trolls, is yet another example of the FTC’s pattern of abusing its authority to engage in an ongoing witch hunt against private businesses. The allegations in the FTC’s complaint are just that: allegations. LabMD looks forward to vigorously fighting against the FTC’s overreach by seeking recourse through the available legal processes.”

The FTC has repeatedly overstepped its statutory authority under Section 5 of the Federal Trade Commission Act and the FTC does not have the authority to bring this enforcement action.

LabMD is a cancer detection facility that specializes in analysis and diagnosis of blood, urine, and tissue specimens for cancers, micro-organisms and tumor markers.


About Cause of Action:

Cause of Action is a nonprofit, nonpartisan organization that uses investigative, legal, and communications tools to educate the public on how government accountability and transparency protects taxpayer interests and economic opportunity. For more information, visit

For any further follow up contact Mary Beth Hutchins,  202-400-2721


Statement: Court Finds Appointment of NLRB’s Lafe Solomon Invalid

In November of 2011, Cause of Action requested an investigation into Mr. Lafe Solomon, the then-acting general counsel of the National Labor Relations Board. Cause of Action has highlighted the conflict of interest concerning Lafe Solomon’s actions in the Boeing case, as well as his engagement in ex-parte communications with a member of the NLRB.   In a June 26, 2013 editorial, Cause of Action explained that “the NLRB’s chief enforcer of unfair labor practices – was himself a recess appointment.”

Dan Epstein, executive director of Cause of Action, offered this response to recent ruling that confirmed that Lafe Solomon’s appointment was invalid:

“U.S. District Judge Benjamin H. Settle’s decision on August 13 that ruled that National Labor Relations Board acting general counsel Lafe Solomon’s appointment was invalid recognizes what the NLRB has failed to acknowledge: that former acting general counsel Lafe Solomon’s authority was questionable and came at an extreme cost to America’s job creators, like Boeing and Wal-Mart.

Worse, because the NLRB’s General Counsel lacks an Inspector General, this decision provides accountability in ways that the Executive Branch and Congress had failed to do.”

HARDI: Court Denies Latest APGA Motion In Regional Standards Case

The United States Court of Appeals for the District of Columbia  has agreed to hear the case of  HARDI, which challenges a Department of Energy rule that would raise energy costs for consumers around the country. Below is HARDI’s press release which can be found here.

August 20, 2013 

Court Denies Latest APGA Motion In Regional Standards Case  

Columbus, OH– On Monday, August 19, the United States Court of Appeals for the District of Columbia again issued an order requesting all parties involved in the Regional Standards lawsuit agree to a briefing schedule within the next 30 days. Additionally, the Court denied efforts by other parties in the lawsuit to deny HARDI’s opportunity to present its case before the Court.

“HARDI has consistently worked to expedite these proceedings as much as possible while fighting for what our members believe is right,” said Jon Melchi, HARDI’s Government Affairs Director.  “We could have completed this portion of the process by now absent the now-denied motion so now we just have to focus on doing everything we can to help the court move as expeditiously as possible.”

  • The proposed APGA/DOE settlement on the furnace standard. HARDI was the only party in the lawsuit to support this settlement when it was proposed to the Court.
  •  HARDI’s motion to continue on with the lawsuit to address procedural issues which developed the A/C standard.
  • The merits of the case in its entirety.

“This is another affirmation by the court of HARDI’s standing in this case and the merits of our arguments,” said Brian Cobble, G.W. Berkheimer Co. and HARDI’s 2013 president.  “It is regrettable that other parties chose to delay the court proceedings by attempting to reverse the court’s earlier decision but now the path is cleared for the court to hopefully conclude this issue well in advance of the next 2015 implementation deadline in the favor of those who are likely to be most harmed by these unprecedented regionalized efficiency standards.”




Heating, Air-Conditioning and Refrigeration Distributors International (HARDI) represents more than 460 wholesale companies and 300 manufacturing associates as well as nearly 140 manufacturer representatives. HARDI members represent an estimated 85 percent of the dollar value of the HVACR products sold through distribution.

Statement: Cause of Action responds to Rep. Levin and Cummings on IRS investigating ACORN-related groups

Yesterday, the House Ways and Means Committee released new documents claiming “IRS Scrutiny of Progressive Groups,” by highlighting the IRS’ attention to ACORN and its successors.

Dan Epstein, Cause of Action’s executive director responded:

Rep. Levin and Rep. Cummings are claiming that the IRS targeted ACORN in the same fashion as pro-liberty groups.  The difference, however, as Cause of Action demonstrated one year ago, is that ACORN and its successors engaged in potentially illegal activity, so of course its successors, such as New York Communities for Change, Texas Organizing Project, and Alliance of Californians for Community Empowerment, should be on the ‘Be on the Lookout’ lists. Two problems exist: First, we see no evidence that the IRS is actually conducting a diligent oversight of rebranded ACORN groups, and secondly there is no evidence that Tea Party groups engaged in illegal activities.

To compare a law-breaking organization like ACORN to True to the Vote is not only illogical, it’s unethical.

For more information on Cause of Action’s investigations into the IRS, click here.



USA Today: IRS assailed from all sides for lack of transparency

IRS assailed from all sides for lack of transparency

Allies and critics alike frustrated by the IRS’ lack of transparency in Tea Party affair

WASHINGTON — After admitting it targeted Tea Party groups for additional scrutiny in May, the Internal Revenue Service has been called on to explain its formerly obscure process for policing political activity by tax-exempt groups.

And, by almost all accounts, it’s not doing a very good job.

Last week, the non-profit publisher Tax Analysts filed suit against the IRS under the Freedom of Information Act, saying the agency failed to release training materials used by the agency’s Exempt Organizations staff in Cincinnati.

Congressional investigators have complained that the agency has turned over only a small fraction of the records they’ve sought. House Ways and Means Committee Chairman Dave Camp, R-Mich., said the IRS’ slow response to congressional inquiries “begins to look a lot like obstruction.”

Within the IRS, the Taxpayer Advocate Service has criticized the agency’s Exempt Organizations office for failing to reveal how agents review tax-exempt groups for political activity — in spite of laws requiring disclosure. “This lack of transparency reduced EO’s accountability to the public and made it easier to believe that EO was arbitrarily singling out applications for further review based on ideology,” Taxpayer Advocate Nina Olson said in a special report to Congress in June.

Even some of the agency’s biggest supporters say they’ve been frustrated by the IRS’ failure to respond to key questions.

“Steam has been coming out of my ears for the last three months, because the IRS hasn’t been able to defend itself. In a way, they’re their own worst enemy,” said Evelyn Brody, a law professor at the Illinois Institute of Technology’s Chicago-Kent College of Law. She said the IRS’ reticence is party justified by taxpayer privacy laws, but the agency could still do a better job explaining its processes.

The IRS itself would not comment on the transparency issues, except to say that it does not comment on pending litigation.

Tax Analysts filed its lawsuit in federal court in Washington last week after the IRS failed to meet legal deadlines to respond to its Freedom of Information Act request. Chris Bergin, the president and publisher of Tax Analysts, said it’s perplexing that the IRS won’t release records that might mitigate criticism over its handling of political groups.

“They’re going to keep shooting themselves in the foot until someone forces them not to,” he said. “What’s worse now, is they’ll go deeper into their bunker. They’ll dig down, and they won’t disclose.”

Tax Analysts has filed 15 FOIA lawsuits against the government since 1985, and has won almost all of them, court records show. “We’re not rookies at this,” Bergin said. “We recognize the pattern. And this is the pattern: They keep telling you, telling you, telling you that they’re going to release the records, and then they say, ‘Sue us.’ And we do, and it always ends badly for them.”

The Tax Analysts lawsuit is actually the second FOIA lawsuit to come out of the Tea Party controversy. The Cause of Action Institute, a non-profit organization aligned with conservative causes, filed suit last month to force the agency to disclose any requests for tax returns by the White House.

“We’ve had this fight with the IRS now for almost two years,” executive director Dan Epstein said. “They could simply say, the easiest response for the IRS to say is, no such record exists.”

Instead, the IRS has not explicitly denied that tax returns have been provided to the White House, but said that they would be covered by taxpayer privacy laws if they were.”

A White House spokesman did not return a call seeking comment.

The IRS won’t say how many FOIA requests it’s received about its handling of political groups. USA TODAY and The Cincinnati Enquirer, which are both owned by Gannett, have filed 16 FOIA requests with the agency in the last three months, and the agency has not released any of the requested records.

When USA TODAY requested public inspection files of tax exempt groups, the IRS claimed that they are not subject to the Freedom of Information Act. And on two successive days in May, USA TODAY reporters visited the IRS’ Freedom of Information Reading Room only to find it closed to the public during its posted hours.

In an Aug. 2 letter to the House Oversight Committee, acting IRS Commissioner Danny Werfel said it was “inaccurate and unfair” to allege the IRS has not fully cooperated with Congress.

He said the agency has devoted 100 employees to gathering documents and that it had facilitated the interviews of 19 IRS employees with congressional investigators.

The IRS is searching for electronic records containing 81 search terms, including “Tea Party,” “conservative,” “liberal,” and the names of White House senior adviser Valerie Jarrett and author Glenn Beck. As of Aug, 2, the IRS had produced 16,500 of a potential 1.6 million responsive documents to Congress, Werfel said.

Cause of Action Sues TIGTA over Release of Taxpayer Info

Cause of Action filed a lawsuit against the Treasury Inspector General for Tax Administration (TIGTA) for potentially violating the Freedom of Information Act (FOIA).

TIGTA told Cause of Action in March of this year, in response to a FOIA request, that it could “neither confirm nor deny the existence of records” of communication between the White House and IRS concerning taxpayer information, particularly interactions that were not made pursuant to 6103(g) of the tax code, which authorizes the President to request any individual’s tax return information from the IRS.

Yet, the media reported that TIGTA sent a letter to Senator Charles Grassley July 3, 2013, acknowledging eight instances involving potential unauthorized access or disclosure of tax records belonging to political donors or candidates since 2006.

By revealing to Senator Grassley the existence of these communications, TIGTA has potentially violated FOIA with Cause of Action, therefore we are filing a lawsuit against TIGTA in the U.S. District Court for the District of Columbia.

ECF No. 1_Complaint

ECF No. 1-1_Exhibits 1-10 to Complaint

ECF No. 1-2_Civil Cover Sheet

ECF No. 1-3_Summons