Archives for March 2014

Cause of Action Appeals USDA Redactions Related to White House Equities FOIA

Cause of Action sent 20 FOIA requests to federal agencies regarding the White House’s review of FOIA and other document requests. Four federal agencies produced documents that were included in our report released for Sunshine Week 2014.

The U.S. Department of Agriculture (USDA) received our FOIA request on November 26, 2013 and sent us a response letter on February 26, 2014. The documents produced by USDA used heavy (b)(5) redactions to the point where no substantive information was included (email subject headings were also redacted). Compared to 3 other agencies that produced documents, USDA’s was the only agency that failed to provide any substantive information. In USDA’s response letter, it stated it made the redactions pursuant to the attorney-client privilege.

One such privilege is the attorney-client privilege, which protects confidential communications between an attorney and client relating to a legal matter for which the client has sought professional advice. This privilege also encompasses any opinions the attorney gives to the client based upon those facts, as well as communications between attorneys that reflect client-supplied information. We have withheld information from the responsive records, including confidential communications between OGC and the Office of the White House Counsel, internal, confidential communications between OGC attorneys and client agencies, and other records reflecting the advice of counsel with regard to legal matters.

As we note in our appeal:

The privilege properly applies only to communications created in the context of an actual attorney-client relationship, and not simply whenever an agency communicates with another entity composed of lawyers. Indeed, the privilege “must be ‘strictly confined within the narrowest possible limits consistent with the logic of its principle.”‘ Quite simply, the White House Counsel’s Office does not provide legal services to USDA (or to other agencies), but rather provides legal assistance to the President and the White House staff in their official capacities. USDA has not identified any facts or cited any legal authority that suggests that an attorney-client relationship exists between the agency and the White House Counsel’s Office. (emphasis added)


November 26, 2013 FOIA Request

February 26, 2014 USDA Production Letter

March 25, 2014 USDA Appeal WH Equities by CauseOfAction

February 27, 2014 USDA Production WH Equities by CauseOfAction

FOIA Production: TIGTA Inspector General J. Russell Work Calendars

Cause of Action sent a FOIA request in August 2013 seeking the work calendars of TIGTA Inspector General J. Russell George from March 1, 2012 to July 31, 2013. Our goal in sending the FOIA request was to learn more about TIGTA’s May 14, 2013 audit.


FOIA Production: TIGTA Inspector General J. Russell Work Calendars by CauseOfAction

Federalist Society Engage Journal: Redressing Politicized Spending

Redressing Politicized Spending

Engage Volume 15, Issue 1 February 2014

March 25, 2014

Daniel Z. Epstein

Read the full piece: Federalist Society

In 2007, the Bush White House sent senior political officials to brief political appointees in federal agencies on how they could help steer federal funds to favor Republican congressional candidates. In 2010, the Obama White House had direct involvement in shaping the U.S. Department of Energy (DOE) Loan Program Office’s loan and loan guarantee funding decisions.
These are not isolated anecdotes. They characterize a body of empirical evidence demonstrating that federal agencies’ discretionary spending and other decisions are susceptible to capture by the political interests of Congress and especially the President. Politicized spending undermines transparency and the “level playing field” needed to maintain public trust and confidence in government. Furthermore, large-scale discretionary spending without an effective independent check on the government’s ability to steer discretionary funds to favored firms, organizations, and individuals corrodes the foundations of any system based on principles of limited and accountable government.

LabMD Sues Federal Trade Commission

FOR IMMEDIATE RELEASE                                         CONTACT: Kevin Schmidt, 202-499-2414

March 20, 2014                                                            


LabMD Sues Federal Trade Commission

Atlanta-based cancer detection company seeks relief from FTC’s abuse of power

WASHINGTON – Cause of Action (CoA), a government accountability organization, announced today the filing of a Motion for Preliminary Injunction against the Federal Trade Commission (FTC) on behalf of LabMD in the U.S. District Court for the Northern District of Georgia Atlanta Division.  This case was previously filed in the U.S. District Court for the District of Columbia and in the U.S. Court of Appeals for the Eleventh Circuit, but was refiled in the District Court due to jurisdictional issues. The injunction asks the court to stop the FTC’s abuse of power and regulation of patient-information despite lacking authority.

CoA is also defending LabMD against a complaint brought by the FTC in an administrative proceeding, In the Matter of LabMD Inc., a corporation, Docket No. 9357.  The FTC has attacked LabMD without publishing any data-security regulations or standards and with the knowledge that LabMD’s data security practices are regulated by the U.S. Department of Health and Human Services (HHS).  HHS has never suggested, and the FTC does not claim, that LabMD violated any of the HHS’s patient information data-security regulations or requirements.

CoA is challenging the FTC’s statutory authority to regulate patient information data-security practices on top of HHS as “unfair acts or practices” under Section 5 of the FTC Act and disputed the FTC’s claim that LabMD supposedly failed to provide reasonable and appropriate security for personal information on its computer networks.  Notwithstanding its lack of expertise and its failure to provide for public notice or input, the FTC has unilaterally decided that HHS’s data security regulations are inadequate and that compliance with those regulations is not enough to avoid Commission sanctions.

“By continuing to drag the administrative proceedings along, the FTC continues to act without the authority granted to it by Congress – authority they admitted only last month they do not have,” said CoA Executive Director Dan Epstein.  “The FTC continues to exemplify the dangers of unbridled federal agency overreach into areas in which they have no authority. The merits of our complaint have yet to be evaluated by a court, which is why we are bringing them before the District Court now.”

“By filing this lawsuit, we are asking the court to stop FTC’s abuse of government power and to ensure LabMD’s case is decided fairly and objectively. Right now, small businesses like LabMD that stand up to the FTC must play a rigged game because FTC is the legislator, prosecutor, judge, jury and executioner all rolled into one,” CoA Senior VP of Litigation Reed Rubinstein said.  “The FTC has no power over LabMD here and its obvious disregard for the patient-information data security regulations that the Department of Health and Human Services has had in place for years creates additional chaos, expense and hardship for America’s doctors, medical labs and clinics.”

CoA is also challenging the FTC’s unconstitutional refusal to provide LabMD, and all other consumers and businesses, with fair and clear administrative data-security regulations so that everyone knows what conduct is permitted and what conduct is prohibited ahead of time.  The FTC has assumed for itself the power to ignore the public participation, transparency and accountability provisions of the laws passed by Congress and to regulate every American business without any oversight or controls.

Finally, CoA is challenging the constitutionality of the FTC’s administrative process. According to a study by FTC Commissioner Joshua Wright, for nearly the past twenty years, in 100 percent of the cases where an Administrative Law Judge ruled for the FTC, the Commission affirmed the ruling, but in 100 percent of the cases where the ALJ ruled for the target of Commission enforcement action, the Commission reversed the ruling.  In other words, the FTC never loses on its home court.  By contrast, when the victims of the FTC’s abuses are able to make their case before a fair court, the FTC loses at four times the normal rate.  However, the cost and burden of standing up and speaking out against the FTC’s abuse of the law is so prohibitive that the vast majority of businesses must simply give in and settle.  Since the FTC began its “investigation” in January, 2010, the FTC repeatedly increased its bullying tactics in an apparent attempt to force LabMD to admit fault, something most any small business would do without help from CoA and others.

The lawsuit filed today, along with the previous filings on behalf of LabMD, can be found here.

About Cause of Action:

Cause of Action is a non-profit, nonpartisan government accountability organization that fights to protect economic opportunity when federal regulations, spending and cronyism threaten it. For more information, visit

About LabMD:

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. You can find out more about their battle with the FTC here.

To schedule an interview with Cause of Action’s Executive Director Dan Epstein, contact Mary Beth Hutchins,  202-400-2721 or Kevin Schmidt,



Washington Free Beacon: Report: White House Review Hindering FOIA Releases

Read the full story: Washington Free Beacon

FOIA documents obtained by Cause of Action show White House reviews delayed responses to investigative journalists, watchdog groups, and even congressional investigations.


One White House review delayed response to a FOIA request by a Los Angeles Times reporter by at least two years.


The study, based on records obtained from four federal agencies, found at least 18 FOIA requests were sent to the White House for review between 2012 and 2013.

The Michael Savage Show: Discussing White House Equities

On March 20, 2014, The Michael Savage Show discussed our Sunshine Week Report. Click here to read the report.

Law360: LabMD Slams FTC’s ‘Abuse Of Power’ In Data Breach Probe

Read the full story: Law360

In February, the cancer diagnosis firm dropped its suit in the District of Columbia challenging the FTC’s authority to regulate data security following an unexpected jurisdictional ruling by the Eleventh Circuit. LabMD voluntarily dismissed without prejudice itscomplaint claiming that the agency lacked the authority to bring an administrative action accusing the company of failing to implement reasonable and appropriate measures to prevent unauthorized access to consumers’ personal health data.


But now, government accountability organization Cause of Action has refiled the lawsuit on behalf of LabMD, saying the company’s data security practices are regulated by the U.S.Department of Health and Human Services and that HHS has never indicated that LabMD violated any of its patient information security requirements.


“By continuing to drag the administrative proceedings along, the FTC continues to act without the authority granted to it by Congress — authority they admitted only last month they do not have,” CoA Executive Director Dan Epstein said in a statement on Thursday. “The FTC continues to exemplify the dangers of unbridled federal agency overreach into areas in which they have no authority. The merits of our complaint have yet to be evaluated by a court, which is why we are bringing them before the District Court now.”