Archives for September 2015

Cause of Action Appeals DOJ’s Denial of Access to Information Regarding Billions of Dollars in Big Bank Settlement Funds

On Friday, Cause of Action appealed the Department of Justice’s (“DOJ”) determination that it has no publically releasable records relating to Cause of Action’s Freedom of Information Act (“FOIA”) request regarding DOJ’s settlement agreements with big banks in the wake of the 2008 financial crisis.

On June 16, 2015, Cause of Action sought records under FOIA to show whether DOJ exercised proper authority in executing its Residential Mortgage-Backed Securities (“RMBS”) settlement agreements, totaling $36.65 billion. Arguably, DOJ’s settlement agreements impermissibly settle claims of DOJ and other agencies, improperly distribute funds to unrelated third parties, and do not ensure that the funds DOJ and third parties receive are used to compensate bank victims. On July 29, DOJ stated that the agency could locate no responsive records and closed Cause of Action’s FOIA request.

Cause of Action’s appeal questions the adequacy of DOJ’s search for records and, alternatively, DOJ’s implicit determination that responsive records exist, but are not subject to the requirements of FOIA. Given the billion dollar price tag on these settlements and significant effort DOJ has expended to supposedly hold banks accountable, it is highly improbable that no records exist regarding DOJ’s power to make these deals obligating banks to pay billions to third parties in purported consumer relief efforts, which includes a mandatory minimum of $150 million in donations to certain non-profit organizations.

It follows that DOJ likely did not perform an adequate search, or is improperly excluding the records it found. Otherwise, DOJ did not have the power to enter into these billion dollar settlement agreements in the first place. That is an argument that Cause of Action has been exploring since DOJ announced these RMBS settlement agreements with considerable fanfare.

Cause of Action’s appeal asks DOJ to perform a reasonable search, adequately describe that search, and produce the responsive documents it identifies.

Weekly Rundown 9-25-2015

Cause of Action in the News:

Wall Street JournalNew Front Opens on Clinton Emails (News that FBI has recovered emails prompts Republican senator to ask for independent review)

With the turnover of Hillary Clinton’s email server to the FBI, Cause of Action is continuing to work for a more transparent government.  We are suing both the State Department and the National Archives to get them to do the right thing and ensure all required work emails were given to the government.  “Our lawsuit calls on both of those agencies to ensure that these records are properly recovered, and we intend to continue our efforts until that happens,” said Cause of Action Executive Director Dan Epstein.

Daily CallerWhite House Intervened In Dept. Of Energy FOIA Requests

A White House memo was found that told government FOIA lawyers that they must consult with the White House if any FOIA requests included what they called “White House equities.” “This report is yet another piece of evidence that shows how the Obama administration, which was supposed to be the most transparent in history, is anything but. Information seekers, whether they’re individuals, members of the news media or public interest groups, should be extremely troubled by the fact that this White House has been interfering with how federal agencies comply with the Freedom of Information Act,” Dan Epstein Executive Director of Cause of Action said about the memo.

In Other News:

NY TimesInvestigators Find Emails Hillary Clinton Said Were Erased

The FBI easily found emails that former Secretary of State Hillary Clinton said had been deleted.  Investigators are looking into what Clinton had described as “personal” emails and are checking to see if any of them have any level of classification.

Daily CallerEPA Doesn’t Know About Dozens Of Its Own IT Systems

Most people would assume that a government agency would have some system in place to keep track of it’s IT.  However, the Environmental Protection Agency has an unknown number of IT systems that it doesn’t know about.  Not knowing about your IT systems puts the data on those systems at a much greater risk to data breaches.

Free BeaconNSA Director: Foreign Spies Would See Clinton’s Emails as a Target

The director of the National Security Administration has admitted that former Secretary of State Hillary Clinton’s emails would be a prime target for foreign spies.  Director Mike Rogers said that if the situation we’re reversed and it was a foreign leader who was conducting business on a private server, saying “From a foreign intelligence perspective, that represents opportunity.”

MondaqFTC Urges Start-Ups To Incorporate Cybersecurity Early

At a Federal Trade Commission conference the FTC emphasized the importance of cybersecurity for small to medium size businesses.  This conference occurred after a Court of Appeals decision to hold Wyndham Worldwide, company who was victim to a cybersecurity attack, responsible for the consumer data loss.  The FTC’s goal is to “ensure that companies make truthful representations about their privacy and security practices, and that they provide reasonable security for consumer data.”

Weekly Rundown 9-18-2015

Cause of Action in the News:

PoliticoGOP senators want to talk to Clinton tech staffer’s boss

On Monday, Cause of Action sent a letter to the Inspector General of the State Department asking for an investigation into the off the books way Hillary Clinton paid for the management of her private server.  We aren’t the only ones trying to get to the bottom of this.  Two senators want to dig deeper into the staffer who was managing the server.  Hopefully, with all the pressure being applied to the State Department the American people will start to get some answers.

POGOFOIA Fee Waivers Protected

The US Court of Appeals unanimously agreed with Cause of Action, confirming that federal agencies cannot use fees to prevent releasing documents requested under the Freedom of Information Act.  It was decided by the court that the only requirement for FOIA requests concerning the requester’s use of the documents is that they must “enlighten more than just the individual requester.”  This is great news for anyone who wants to see a more transparent federal government.

In Other News:

Washington ExaminerEmail scandal defining Clinton campaign

When people think of Hillary Clinton they seem to focus in on one thing in particular, her email scandal.  In a Gallop poll, when asked about what sticks out when they read or hear about Hillary Clinton, of 750 adults “email” was mentioned 329 times in a few different ways including “email”, “email scandal” and “that email thing”.

Fox NewsGOP lawmaker moves to impeach EPA chief McCarthy

Arizona Rep. Paul Gosar claims that the head of the Environmental Protection Agency lied to Congress.  He said “McCarthy not only broke the law by lying to Congress, but in doing so she also lied to the American people in order to force misguided and overreaching regulations, which have no scientific basis, down our throats.” Because of her perjury the Representative says that Administrator McCarthy should be impeached.

ForbesIRS Gets Sued Over Bonuses To Lois Lerner

The IRS scandal continues.  Pleading the Fifth, missing email, fake email accounts have all been a part of the drama that has been plaguing the IRS.  Now they have a lawsuit under the Freedom of Information Act on their hands over bonuses they gave out right after the nonprofit targeting became public knowledge.  Of the $70 million in bonuses given out Lois Lerner received $42,000.

Daily CallerHillary Clinton Emails Have A FIVE-Month Gap

After testifying that she had turned over all required emails, former Secretary of State Hillary Clinton may have missed a couple months.  There have been claims that there were five months of emails missing from what was turned over by Mrs. Clinton.  The State Department has responded to those claims saying that there aren’t any gaps, those documents just haven’t been released yet and will be released in the future.

Meet John Yates of Yates v. United States

On February 25, 2015, the Supreme Court ruled that John Yates, a commercial fisherman, could not be prosecuted under a financial-fraud law [18 USC §1519] for catching undersized red grouper.

Cause of Action, together with the Southeastern Legal Foundation and the Texas Public Policy Foundation, filed a brief in support of Mr. Yates arguing that upholding the conviction would mean a potential twenty year federal prison sentence for anyone who conceals evidence of a surfboard being used on a beach designated for swimming, throws away a bag of chips from a workplace restroom prior to an OSHA inspection, or discards an empty container of medicine purchased from a foreign pharmacy.

Weekly Rundown 9-11-2015

Cause of Action in the News:

Columbia Journalism ReviewA pair of court decisions bring good news for FOIA users

Cause of Action is still working hard for a more transparent government.  Two court decisions were made that help specify who qualifies for Freedom of Information Act fee waivers.  Our hope is that with this new accessibility, we will see more people looking into the actions of the federal government and holding them accountable.

Law 360FCA Suit Against Chicago Transit Not Barred, 7th Circ.

On Thursday, Cause of Action told the 7th Circuit Court of Appeals that the Chicago Transit Authority (CTA) should be taken to task for overbilling the federal government up to $55 million as the government’s potential knowledge of the false practice did not bar the False Claims Act suit.  During oral arguments Thursday, Cause of Action in-house attorney David Fischer urged the appeals court to overturn a district court ruling that the public disclosure bar prevented Cause of Action from bringing an FCA suit against the CTA.  This lawsuit arises from our investigation into the CTA’s long-standing practice of misreporting data used by the Federal Transit Administration to allocate federal grant funds.

Yates v. United States


Cause of Action, together with the Southeastern Legal Foundation and the Texas Public Policy Foundation, filed a brief in support of Mr. Yates arguing that upholding the conviction would mean a potential twenty year federal prison sentence for anyone who conceals evidence of a surfboard being used on a beach designated for swimming, throws away a bag of chips from a workplace restroom prior to an OSHA inspection, or discards an empty container of medicine purchased from a foreign pharmacy.

In Other News:

USA TodayHillary Clinton: ‘I’m sorry’ for personal email at State Department

“That was a mistake. I’m sorry about that. I take responsibility.”  Hillary Clinton has finally apologized for using a personal email server and continues to say that she is trying to be as transparent as possible.  However, she also continues to say that she hasn’t done anything wrong.  The presidential hopeful believes that she will eventually rise above this email scandal thanks to all of her prior experience with DC politics.

Free BeaconAmerica Rising Demands State Dept Transparency Czar Resign for Donating to Hillary Clinton

Secretary of State John Kerry has chosen a “transparency czar” to help with all of the FOIA requests the State Department has been receiving.   However after just 2 days there have been demands for her resignation.  The reason?  Janice Jacobs, former diplomat who was given the position, donated the maximum $2,700 to Hillary Clinton’s presidential campaign in June.

Fox NewsState Department only turns over fraction of requested documents about Clinton aide

The State Department continues to delay turning over Hillary Clinton’s emails even after the emails have been identified by a federal judge as relevant to an Associated Press FOIA request.  The emails are about the hiring of Huma Abedin, a longtime aid to Hillary Clinton.  This action continues a long history of delay in regards to FOIA requests submitted to the State Department.

Weekly Rundown 9-4-2015

Cause of Action in the News:

Forbes Court Orders IRS To Reveal White House Requests About Taxpayers

Cause of Action won a major victory for the American people and their right to know what is going on in their government.  A federal judge has ruled that the IRS cannot use taxpayer privacy laws to cover up activity that harms those taxpayers.  The IRS must now go through the records it previously refused to release.

Wall Street JournalMiles From Nowhere (An update on the IRS scandal.)

A lawsuit by Cause of Action has led to a court ruling require the IRS to go through documents it had previously refused claiming it violated taxpayer confidentiality laws.  The documents they must search include “any communications by or from anyone in the Executive Office of the President constituting requests for taxpayer or ‘return information’ ”.  Hopefully, this ruling will help us to shed some light onto “the most transparent administration in history.”

In Other News:

The Hill7,000 pages of Clinton emails released

After a court order, the State Department released 7,000 more pages of Hillary  Clinton emails. Over 100 have already been identified as containing classified information, although the State Department claims they were not marked as classified when they were sent.  Several of these emails contain information about former secretary of state Clinton’s work with foreign governments.

PoliticoEx-Clinton staffer who set up email server to invoke Fifth Amendment

An ex-Clinton staffer is following in the steps of Lois Lerner.  Bryan Pagliano has been subpoenaed by the House Benghazi Committee to testify about his role in the setup of Hillary Clinton’s personal server and turn over any related documentation.  His attorney has asked that they excuse Pagliano from testifying and informed the committee that Pagliano will plead the fifth and has refused to turn over any documents.

The Hill – Congress should protect small business from IRS overreach

As the power of the IRS grows, small businesses and non-profits have continued to suffer. The IRS has used audits as more of a weapon then as an independent inspection.  The IRS has also been forcing companies to turn over a great deal of personal information, which according to tax law is not necessary. Congress needs to step in and protect the American people from the long arm of the IRS.

Wall Street JournalThe EPA’s Next Big Economic Chokehold (Lowering ozone—from cars, trucks, factories and power plants—in the name of an imaginary health benefit.)

Without any scientific research, the EPA has claimed that reducing ground level ozone with reduce the instance of asthma.  This is a very expensive regulation, monetarily and for jobs, with nothing backing it up.  The reduction will have a direct impact with the EPA saying ozone must be reduced from “automobiles, trucks, buses, factories, power plants” and “consumer products.” This overreach will have a direct impact on the everyday lives of Americans.

“The Third Amendment – A Breeding Ground For Secrecy And Corruption”

by David Fisher, Cause of Action Senior Counsel

Three truisms will collide this Friday in a Federal courtroom in Washington DC. The first two truisms – “secrecy breeds corruption” and “follow the money” – make the failure to disclose documents relating to an under-the-radar agreement that has generated billions of dollars for the United States Treasury exceedingly troubling. Cause of Action, and others, think the public has a right to know about this deal and its genesis.

During the 2008 financial crisis, taxpayers bailed out Fannie Mae and Freddie Mac at a cost of $187.5 billion. This bailout was styled as a loan and for several years Fannie and Freddie paid the interest due on this loan. By 2012 Fannie and Freddie were again profitable. In August 2012, Fannie, Freddie, the Department of Treasury and Federal Housing Finance Agency (FHFA) amended their deal with what is called “the Third Amendment.” Under the Third Amendment, the government began sweeping all the companies’ profits into the Treasury. As of last December 2014, the Treasury had received a total of $225.4 billion from the companies – $40.8 billion more than they borrowed from taxpayers.

Congress charged the FHFA with conserving Fannie and Freddie’s assets and stabilizing the institutions with, as the agency states, “the objective of returning the entities to normal business operations.” Instead, it appears to be allowing all of Fannie and Freddie profits to be funneled to the US Treasury rather to be used to stabilize the companies.

The government is taking what the New York Times called “extraordinary measures” to hide documents relating to the Third Amendment, and has even claimed “Presidential Privilege” to keep secret several documents.

What is our government hiding? Cause of Action believes that Americans deserve a government that is fair and open; preventing disclosure of documents relating to the government bailout of Fannie and Freddie hinders citizens from evaluating their elected officials and holding them to account.

This Friday, Judge Margaret Sweeney should apply a third truism, one credited to former Supreme Court Justice Brandeis, sunlight is the best disinfectant and make documents relating to the Third Amendment public.