Archives for 2016

D.C. Circuit Overturns Lower Court, Rules Clinton Email Case Can Proceed

Washington D.C. – The D.C. Circuit Court of Appeals has overturned a ruling by the District Court in a lawsuit Cause of Action Institute (CoA Institute) filed against Secretary of State John Kerry and U.S. Archivist David Ferriero seeking to enforce their duties under the Federal Records Act as they relate to retrieval of Hillary Clinton’s emails.  CoA Institute Vice President John Vecchione argued the case, which was consolidated with a similar case filed by Judicial Watch. (Audio of oral arguments can be found in its entirety here)

The lower court had dismissed the case as moot because that court believed the State Department had recovered enough of the records and taken enough action short of initiating action through the Attorney General. The D.C. Circuit Court held that because the statute requires the agencies to reach out to the Attorney General to seek record recovery, and because the State Department has not done so, CoA Institute and Judicial Watch have not received everything to which they are entitled.

CoA Institute Vice President John Vecchione: “The D.C. Circuit has reinforced the lesson that the government is bound to follow the law and that measures short of what the law requires to recover government documents cannot be substituted as ‘good enough’.”

Read the opinion here.





DC Circuit Holds Cause of Action Institute Federal Records Act Case on Clinton Emails Not Moot

Today, the DC Circuit held the Judicial Watch and CoA Institute cases against the Secretary of State and Archivist seeking to enforce their Federal Records Act duties as they relate to Hillary Clinton’s emails are not moot. 

The court held that because the statute requires the agencies to reach out to the Attorney General to seek record recovery, and because they have not done so, CoA Institute and Judicial Watch have not received everything to which they are entitled and, therefore, the cases are not moot.

CoA Institute Vice President John Vecchione -who argued the case before the circuit“The DC circuit has reinforced the lesson that the government is bound to follow the law and that measures short of what the law requires to recover government documents can not be substituted as ‘good enough’.”

Read the opinion here.

USAID Adopts CoA Institute’s Proposals in New FOIA Regulations

The U.S. Agency for International Development (“USAID”) finalized new Freedom of Information Act (“FOIA”) regulations today, accepting two revisions proposed by Cause of Action Institute (“CoA Institute”) in a comment submitted in October 2016.

CoA Institute had made two recommendations in response to USAID’s proposed rulemaking.  First, we urged the agency to remove outdated “organized and operated” language from its definition of a “representative of the news media.”  Such language was used in the past to deny fee waivers to organizations like CoA Institute that investigate potential agency wrongdoing.  For example, we had to take the Federal Trade Commission all the way to the D.C. Circuit to get the agency to acknowledge that the agency’s FOIA fee regulations were outdated and that it was improperly denying us a fee reduction.

In deciding the case, the D.C. Circuit issued a landmark decision clarifying proper fee category definitions and the application of fees in FOIA cases.  CoA Institute cited this case to USAID in its comment and the agency took heed of the current case law, removing the outdated language from its regulations.

CoA Institute also recommended revising the procedures for conducting consultations.  Consultation takes place whenever USAID locates records that might have originated with or implicate the equities of another government entity.  The process is supposed to ensure that exempt material is properly redacted from records prior to disclosure.  We were concerned that USAID had failed to set parameters for determining when consultation were appropriate.  We also asked USAID to adopt a requirement to notify requesters whenever their requests are subject to consultation and to tell requesters which agency is being consulted.

USAID responded favorably to these recommendations.  It adopted our proposed limitation of consultation to instances where another agency or component has a “substantial interest” in responsive records.  Further, the agency accepted our proposed notification requirement.  The agency failed, however, to adopt our definition of “substantial interest.”  This failure leaves room for future improvement in USAID’s FOIA regulations, as it is unclear how USAID will interpret this term.

CoA Institute’s successful comment is just another small step in our efforts to provide effective and transparent oversight of the administrative state.

SiriusXM’s Kent Klein interviews CoAI Assistant VP Henry Kerner on Obama admin Hatch Act violations


CoA Institute Investigates Red Tape Limiting Access to Zika Testing

Washington D.C. – Cause of Action Institute (“CoA Institute”) today sent a Freedom of Information Act (“FOIA”) request to the Food and Drug Administration (“FDA”) to examine its role in regulating laboratory developed tests (“LDTs”), including tests for the Zika virus. This investigation comes on the heels of the FDA’s post-election decision to indefinitely postpone guidance documents the FDA had issued in an attempt to regulate LDTs. 

This year, the FDA took steps to enforce its guidance against labs that had developed Zika tests. The FDA’s actions would further limit patients’ access to testing for the Zika virus, which can cause serious birth defects. The FDA and the Centers for Disease Control and Prevention (“CDC”) have already put in place a policy limiting the availability of Zika tests to only pregnant women and individuals who were exposed to Zika and are experiencing symptoms. In other words, unless pregnant, an asymptomatic person who has traveled to a country with known Zika transmission prohibited from being tested for the virus. This policy prevents couples who are trying to conceive from information that would help them make personal healthcare and family planning decisions. 

CoA Institute Vice President John Vecchione: “The FDA needs to explain its actions. After 40 years of allowing laboratories to innovate freely and offer patients a variety of tests that often meet unique healthcare needs, it is troubling that the FDA has chosen to crack down just as the Zika virus started to spread. Couples exposed to Zika who are trying to conceive should not have to face bureaucratic hurdles to obtain testing. Instead, they and their doctor should have access to testing services that meet their unique needs. Such decisions cannot be made at a bureaucracy’s pace.” 

Due to the rapid onset and spread of the Zika virus, there is still no test that has undergone the FDA approval process for in vitro laboratory developed tests (meaning laboratory tests performed in a test tube, culture dish, or elsewhere outside a living organism). Rather, the Zika tests currently available for use were all approved by the FDA pursuant to an “Emergency Use Authorization,” which comes with strict limitations.

Clinical laboratories that perform testing services were historically regulated solely by the Centers for Medicare and Medicaid Services. However, beginning in 2014, the FDA asserted that it, too, has regulatory authority over laboratory developed tests. The FDA has authority to regulate manufactured drugs and “medical devices” pursuant to the Federal Food, Drug, and Cosmetic Act. In 2014, the FDA issued draft guidance documents that assert sweeping authority to treat laboratory developed tests as “medical devices.” Accordingly, the FDA asserted authority to regulate LDTs as “medical devices” under this updated guidance.   

In addition to a CDC-developed test, private laboratory companies have developed Zika tests and obtained approval to administer the tests pursuant to the Emergency Use Authorization. However, even these tests developed by private companies are subject to the CDC’s policy limiting the test to pregnant women or symptomatic individuals who were exposed to Zika.     

CoA Institute is interested in learning more about the FDA’s attempts to regulate these tests and the impacts such regulation may have on the ability of patients and doctors to access testing services.

The full FOIA is available here


New Law Set to Clarify and Strengthen Authority of IGs to Access Agency Records

This month, the U.S. Senate voted by unanimous consent to pass the Inspector General Empowerment Act of 2016, which originated in the House of Representatives and was sponsored by Representative Jason Chaffetz (R-UT), Chairman of the Committee on Oversight and Government Reform, and Senator Chuck Grassley (R-IA).  The bill now heads to the President’s desk, where it should be signed into law.

The IG Empowerment Act is an important step in strengthening the power and independence of the official “watchdogs” of the administrative state.  The main thrust of the legislation is to reinforce the power of IGs to access any agency records necessary for their oversight efforts.  This is seen as necessary to bypass the roadblocks to accessing records set up by many agencies—including the Department of Justice, Peace Corps, Department of Commerce, Treasury, and EPA—over the past six years.  The Obama Administration’s efforts to prevent IGs from carrying out their statutory duty to combat waste and fraud found their apogee in a July 2015 memorandum circulated by DOJ’s Office of Legal Counsel, which was strongly condemned by the IG community.  That legal opinion is now superseded by statute.

The recently passed bill also modifies the operation and reporting obligations of the Council of the Inspectors General on Integrity and Efficiency—or CIGIE—the independent entity within the government composed of all the IGs.  Additionally, the IG Empowerment Act clarifies when agencies and whistleblowers are authorized to disclosure sensitive information to their IG.

According to a recent congressional report, the obstructions faced by IGs, and the more than 15,000 recommendations that have been unimplemented by their agencies, have cost taxpayers $87 billion in lost savings.  While the IG Empowerment Act will likely improve the effectiveness and integrity of the Executive Branch, and save taxpayers a great deal of money, there is still room for improvement.  For example, the new bill fails to address the lack of subpoena power needed to compel testimony from federal employees and contractors, especially in instances where an agency refuses to cooperate with an IG’s ongoing investigation.

Congress should also take further steps to resolve the perineal problem of IG vacancies.  While the new bill requires the Comptroller General, who leads the Government Accountability Office, to examine the effect of these long-vacant posts, additional pressure could be placed on the White House to nominate new IGs and the Senate to confirm them.  For example, the Department of Commerce just received a new IG, and President Obama also announced the nomination of the first-ever IG for the National Security Agency, but too many empty spots remain.  According to CIGIE, nine presidentially-appointed, Senate-confirmed IG positions are empty.  The Project on Government Oversight calculates that the Department of Interior IG position has been vacant for over 2,800 days.  This is unacceptable.

Organizations like Cause of Action Institute remain committed to public oversight, but their tools are limited.  IGs are in a unique position to work with non-governmental actors and Congress alike to hold the Executive Branch accountable.  Efforts to strengthen the position and authority of IGs should therefore be seen as bolstering open and transparent government.  The IG Empowerment Act is one such effort.  In the its new session under President Trump, Congress ought to consider additional ones.

Is Sec. Perez Campaigning on the Taxpayer’s Dime?

Washington D.C. – Cause of Action Institute (“CoA Institute”) today sent a Freedom of Information Act (“FOIA”) request to the U.S. Department of Labor investigating whether recent outreach by Secretary Tom Perez to voting members of the Democratic National Committee (“DNC”) regarding his political future could be in violation of the Hatch Act. The Hatch Act explicitly prohibits federal employees from using their official authority for the purpose of affecting the results of an election.

Secretary Perez reportedly emailed DNC party chairs Wednesday morning and asked them to join him on a conference call this afternoon. During that call Sec. Perez announced his candidacy for DNC Chairman. Such outreach raises the possibility that Perez may be attempting to advance his political campaign while serving in his current government role.

Following the conference call, CoA Institute requested all communications surrounding this outreach to better understand whether Sec. Perez has used taxpayer resources, such as government issued computers, office space, mobile devices, staff, or email systems to promote his campaign.

CoA Institute Assistant Vice President Henry Kerner: “The law is clear: public officials paid by taxpayers cannot use their position to engage in political activities. The Obama administration’s unprecedented history of Hatch Act violations threatens to undermine this important protection. Americans have a right to know if Sec. Perez used taxpayer-funded resources to further his own political campaign.”

There have been three previous high-profile Hatch Act violations during the Obama administration. Just a few months ago in July of this year, Department of Housing and Urban Development Secretary Julian Castro was found to have violated the Hatch Act when he openly endorsed Hillary Clinton’s candidacy for president during a Yahoo News interview. Before that, in 2012, Secretary of Health and Human Services Kathleen Sebelius was also found to have violated the Hatch Act when she delivered the keynote speech at a gala calling on attendees to reelect President Obama. And prior to that, Secretary Perez’s predecessor at the Labor Department, Hilda Solis, resigned after word came out that she had solicited campaign contributions from a subordinate employee.

These were historic violations, as no Cabinet secretary in any prior administration had been found in violation of the Hatch Act since its enactment under Franklin Delano Roosevelt. Yet, neither Ms. Sebelius nor Mr. Castro suffered any consequences for these violations.

The full FOIA can be found here