Archives for May 2016

Supreme Court Ruling Protects Property Rights

Today, the United States Supreme Court issued an 8-0 opinion in U.S. Army Corps of Engineers v. Hawkes Company protecting landowners’ right to meaningfully challenge government overreach and arbitrary deprivation of private property rights.  The Court rejected the Corps’ argument that a federal court was not allowed to weigh in on the agency’s assertion of jurisdiction to regulate the Hawkes Company’s use of its own land to mine peat unless the company first spent hundreds of thousands of dollars to complete a time-consuming, complicated government permitting process. Cause of Action (CoA) Institute filed an amicus brief in support of the Hawkes Company, which was represented by the Pacific Legal Foundation.   The Court held that an approved Jurisdictional Determination (approved JD)—a federal agency determination that private property contains “waters of the United States” subject to the Clean Water Act (CWA) and the Environmental Protection Agency (EPA) “Waters of the United States” (WOTUS) regulation— is judicially reviewable under the federal Administrative Procedure Act (APA).

In its amicus brief, CoA Institute argued that the Corps approved JD deprived Hawkes of a property interest protected by the Fifth Amendment to the federal Constitution because it reduced the value of its land by preventing Hawkes from mining peat on it without fear of an EPA enforcement action.  Coupled with substantial criminal and civil penalties for CWA violations, a due process violation would result if immediate APA review of the Corps-approved JD is unavailable.

Justices Kennedy, Thomas, and Alito appear to share CoA Institute’s due process concerns and agree that the Constitution requires immediate judicial review of the federal government’s assertion of jurisdiction to regulate private property under the CWA.  In a concurring opinion joined by Justices Thomas and Alito, Justice Kennedy said that “the Court is right to construe a JD as binding in light of the fact that in many instances it will have a significant bearing on whether the Clean Water Act comports with due process.”  Justice Kennedy wrote that the CWA, “especially without the JD procedure were the Government permitted to foreclose it, continues to raise troubling questions regarding the Government’s power to cast doubt on the full use and enjoyment of private property throughout the Nation.”  CoA Institute applauds this unanimous Supreme Court decision protecting landowner property and due process rights.

ICYMI: Judge Lechner interview on Clinton email deception (WSJ Opinion Journal)

In Case You Missed It…



Opinion journal

OJ judge interview


Opinion Journal’s Mary Kissel and Cause of Action Institute President and CEO Alfred J. Lechner, Jr., a former federal judge,
discuss the State Department’ IG report on Hillary Clinton’s email deceptions.


IG Report on Clinton Email Consistent with CoA Complaint

Washington, DC – Cause of Action (CoA) Institute President and CEO and former Federal Judge Alfred J. Lechner, Jr. today released the following statement following the release of a State Department Office of Inspector General (IG) report that found Hillary Clinton failed to comply with the Federal Records Act during her tenure as Secretary of State. The report found that Mrs. Clinton has not provided all of her emails to the State Department, which contradicts previous statements before the courts.

CoA Institute President & CEO Alfred J. Lechner, Jr.: “News reports today that the Department of State Office of Inspector General has determined that former Secretary of State Hillary Clinton did not use the ‘appropriate method’ for preserving her emails support Cause of Action Institute’s work to hold the State Department accountable for its violations of the Federal Records Act. The Inspector General found that the emails Mrs. Clinton belatedly returned to the State Department are an ‘incomplete’ set. Cause of Action Institute will continue to seek to compel Secretary Kerry and the National Archives and Records Management Administration to perform their statutory duties to recover all of Mrs. Clinton’s email records.”

The report states:

“Secretary Clinton should have preserved any Federal records she created and received on her personal account by printing and filing those records with the related files in the Office of the Secretary. At a minimum, Secretary Clinton should have surrendered all emails dealing with Department business before leaving government service and, because she did not do so, she did not comply with the Department’s policies that were implemented in accordance with the Federal Records Act.”

On July 8, 2015, Cause of Action Institute filed a complaint in federal court in Washington, DC to compel Secretary of State John Kerry and Archivist of the United States David Ferriero to initiate action through the Attorney General to recover all of the records Mrs. Clinton unlawfully alienated from the State Department.  The defendants in that suit argued the case was moot because the State Department received 55,000 pages of emails from Mrs. Clinton.  The district court agreed with defendants and dismissed the suit.  The case is currently on appeal in the U.S. Court of Appeals for the District of Columbia Circuit.

Today’s revelations support the position of Cause of Action Institute, as the State Department Office of Inspector General has concluded that not only did Mrs. Clinton fail to comply with the law, but that the State Department has not recovered all of the records.

Cause of Action Institute Files Complaint Against IRS for Destroying Records

Washington, DC – The Cause of Action Institute (CoA Institute) today filed a legal complaint against the Internal Revenue Service (IRS) and its commissioner, John Koskinen, for refusing to capture and preserve electronic communications of employees that deal with official business, as required by the law.

CoA Institute President & CEO Alfred J. Lechner, Jr.: “The IRS and Commissioner Koskinen have a legal obligation to preserve official work communications between employees. It appears that federal records are being deleted because the IRS, in a deal with its employee union, refuses to preserve certain types of electronic communications. This lawsuit seeks to ensure that IRS follows the law. No agreement with a union or any other party can supersede Americans right to know how the IRS makes decisions.”

Documents obtained by CoA Institute show that the IRS has a private agreement with its employee union stipulating that the agency will not save the instant message records of its employees. But the IRS cannot allow such an agreement to supersede its statutory obligations to preserve records.  In addition, the IRS is violating the law by regularly deleting all employee text messages as a matter of convenience.

CoA Institute filed its lawsuit with the U.S. District Court for the District of Columbia to force the IRS to comply with its obligations under the Federal Records Act (FRA) to capture and preserve all relevant records.  The complaint seeks an order from the court to require the IRS to establish appropriate guidelines for the preservation of federal employees’ instant message and text message records and to preserve all such records permanently until the establishment of those guidelines.


Failure to preserve instant messages:

On June 30, 2015, the Treasury Inspector General for Tax Administration issued a report on the hard drive failures within the IRS that resulted in the loss of numerous agency records, including the email communications of Lois Lerner, former head of the IRS tax-exempt organizations unit.  That report revealed that the IRS maintained an instant messaging system for employee communications. But as a result of a memorandum of understanding between the IRS and the National Treasury Employees Union, the IRS did not capture, preserve, or retain such instant message records.  When CoA Institute submitted a FOIA request seeking information regarding this policy, the IRS confirmed that it “does not capture or maintain” the instant message records of its employees.

Failure to preserve text messages:

As part of an investigation into how federal agencies process their text message records, CoA Institute submitted a FOIA request to the IRS in November, 2014, asking it to produce the text message records of five high-ranking agency officials.  In response to that request and in follow-up communications, the IRS revealed that, due to “routine system housekeeping” and “spacing constraints,” text messages are retained for only 14 days and are thereafter deleted.

To access Cause of Action Institute’s complaint, click here. The accompanying exhibits may be found here.

Press Call to Discuss Justice Department’s Mortgage Settlements

WASHINGTON – Cause of Action (CoA) Institute has led efforts to investigate the settlements between the Justice department and big banks over their allegedly faulty mortgage practices. Last year, CoA Institute issued multiple public records requests aimed at exploring whether DoJ has the legal authority to enter into these settlements in the first place.

Representative Sean Duffy (R-Wis), Chairman of the House Financial Services Subcommittee on Oversight, recently held a hearing to examine the Department of Justice’s settlements with big banks over these mortgage practices. CoA Institute is also probing whether DoJ has the legal right to encourage banks to steer settlement funds to preferred third-party groups that support various initiatives backed by the Obama administration. To date, the Justice Department has not answered any of these important questions.

Today, CoA Institute President and CEO Alfred J. Lechner, Jr. hosted a press call with Rep. Duffy to discuss the Justice Department’s mortgage settlements with banks. The administration should be held accountable to taxpayers who deserve to know why the money from these settlements is not being returned to the Treasury Department, as the law requires.

The audio file can be found HERE.

Cause of Action Institute Sues to Stop White House Obstruction of the Freedom of Information Act

Prevent Obama administration and federal agencies from delaying production of documents that the White House considers politically sensitive

Washington, DC – Today, Cause of Action Institute (CoA Institute) filed a lawsuit against 11 federal agencies — plus the Office of the White House Counsel (OWHC) and White House Counsel Neil Eggleston — to end the Obama administration’s practice of delaying government responses to Freedom of Information Act (FOIA) requests that the administration considers politically sensitive or embarrassing.

When members of the public request documents from federal agencies, FOIA requires that agencies process the request in accordance with specific deadlines.  Agencies must search for responsive documents and produce them unless the information they contain falls into a specific statutory exception.

The Obama administration, however, has interfered in the FOIA process in ways that violate the statute and hinder its purpose of federal transparency.  Although President Obama came into office with promises of transparency, his administration’s actions have not matched such rhetoric.  Under a non-public 2009 memorandum, federal agencies must consult with OWHC before producing documents that involve “White House equities.”

In practice, White House consultations occur whenever documents are politically sensitive or potentially embarrassing to the administration or otherwise newsworthy. The result of these consultations is that agency FOIA productions are delayed precisely when prompt disclosure is most important.

The consultation process can take months or even years.  No statute authorizes FOIA consultations between agencies and the White House in such circumstances, and delaying FOIA productions based on potential political consequences violates both the letter and the spirit of FOIA.

CoA Institute has filed many FOIA requests that are now being delayed by White House equities consultations with OWHC.  In its lawsuit, CoA Institute asks that the United States District Court for the District of Columbia to release FOIA requests from unnecessary delays caused by the Obama administration’s unwarranted review policy.

Read the complaint here.

Exhibits 1-30

Exhibits 31-65