Archives for November 2016

CoA Institute Investigates Employee Telework Fraud at U.S. Patent Office

Washington D.C. – Cause of Action Institute (CoA Institute) today sent a Freedom of Information Act (FOIA) request seeking records from the U.S. Patent and Trademark Office (USPTO) after details emerged about extensive attendance and telework abuse by agency employees. The FOIA request seeks records to clarify whether disciplinary action has been taken against those who claimed hours they did not work.

The Department of Commerce Office of Inspector General (OIG) released a report in August 2016 that found USPTO telework employees were paid for nearly 300,000 unsupported hours of work over a 15-month period. These hours equate to more than $18 million in wages and benefits fraudulently paid to employees.  

CoA Institute Assistant Vice President Henry Kerner: “Such rampant abuse is particularly concerning given the USPTO’s policies to promote more telework for its employees. Over the last decade, the agency has doubled its number of patent examiners largely through teleworking. The American people deserve to understand whether disciplinary action has been taken to hold employees accountable for telework fraud.”

Teleworking is common in many industries and allows employees to work from home, but requires close oversight to prevent abuse by employees.  The USPTO is particularly susceptible to telework abuse because approximately half of its 12,600 employees work from home full-time without ever reporting to a physical office. The OIG report also found that 415 patent examiners who fraudulently reported hours racked up nearly $8 million in bonuses in less than two years.

CoA Institute today requested all records related to time and attendance abuse at USPTO in order to understand the full extent of the abuse and to identify potential policy changes that could address the problem.

The full FOIA request can be found here.


CoA Institute Influences New DHS FOIA Regulations


The Department of Homeland Security (“DHS”) just finalized new Freedom of Information Act (“FOIA”) regulations.

Last year, Cause of Action Institute (“CoA Institute”) submitted comments to DHS in response to its proposed rule.  We urged the agency to remove the outdated “organized and operated” language from its definition of a representative of the news media.  This language has been used in the past to deny fee waivers to organizations like CoA Institute that are conducting investigations of potential agency wrongdoing.  For example, we had to take the Federal Trade Commission all the way to the D.C. Circuit just to get it to acknowledge that its FOIA fee regulations were outdated and that it was improperly denying us a fee reduction.

In deciding our case, the D.C. Circuit issued a landmark decision clarifying the proper definitions and application of fees in FOIA cases.  CoA Institute cited this case to DHS in its regulatory comments and DHS took heed of the current case law and removed outdated language from its regulations.

This is just another small step in our efforts to provide effective and transparent oversight of the administrative state.

CoA Institute Files Lawsuit to Obtain Communications Surrounding Interior’s Decision to Exclude Atlantic from Oil and Gas Leasing Program

Washington, DC – Today, Cause of Action Institute (CoA Institute) filed a complaint in federal court against the U.S. Department of the Interior (DOI) to find out whether DOI’s decision to withdraw the Atlantic Outer Continental Shelf (OCS) from the 2017-2022 Oil and Gas Leasing Program was politically motivated.  In August, CoA Institute filed a Freedom of Information Act (FOIA) request for related communications, but DOI failed to turn over any responsive records. Meanwhile, DOI is busily finalizing the new Five-Year Program.

When DOI released its Draft Proposed Program (DPP) in January 2015, it included one lease sale in the Atlantic Region. The inclusion of the Atlantic in the DPP enjoyed broad support. Members of the congressional delegations from affected East Coast states, including Senator Tim Kaine of Virginia, supported the inclusion of the Atlantic Planning Areas.

On March 15, 2016, DOI announced its decision to withdraw the Atlantic Planning Areas from the Program. Within months – just after Kaine became the Democratic Vice Presidential running-mate – he also reversed course and said he opposed offshore energy development, citing objections from the Department of Defense (DoD). DOI, meanwhile, has insisted that the withdrawal of the Atlantic Planning Areas was not predominantly attributable to the DoD’s comment on 5% of the proposed area.

CoA Institute today sued DOI for all communications concerning the Atlantic OCS and the 2017-2022 OCS Oil and Gas Leasing Program between or among DOI and its bureaus, as well as communications about the program between the White House, DoD, and the office of Senator Kaine.

CoA Institute Vice President John Vecchione: “When the Department of the Interior reverses course without explanation on including the Atlantic in the new Five-Year Program, it raises questions about whether the reversal was political.  Although DOI claims its decision was based on opposition from the public, the states, and the military, the available record appears to show otherwise.  Americans deserve to know whether their government is favoring special interest groups rather than making decisions based on the facts.  That’s why CoA Institute is determined to shed light on DOI’s opaque decision to withdraw the Atlantic Planning Areas from the 2017-2022 Program.”

The complaint can be found here
Exhibits can be found here
The August 2016 FOIA request can be found here

If the Government Wants to Monitor Fishermen, the Government Should Pay

CoA Institute files opening brief in appeal of decision to force costs of at-sea monitors on struggling fishermen

Washington D.C. – Cause of Action Institute (CoA Institute) has filed its opening brief in an appeal of the district court’s decision that fishermen should be forced to pay for their own at-sea monitors. CoA Institute is representing New Hampshire fisherman David Goethel and a group of Northeast fishermen in the case against the U.S. Department of Commerce.

In July, the U.S. District Court for the District of New Hampshire dismissed the lawsuit, ruling that fishermen must pay out-of-pocket for the cost of those monitors. Cause of Action Institute is appealing the ruling. The opening brief, filed in the First Circuit Court of Appeals, states:

“The New England and Mid-Atlantic fishing industry is older than the Nation itself.  Today it creates thousands of jobs in countless fishing communities. The industry’s regulators, however, have embarked on a project that threatens its imminent destruction.  They have done so without statutory authority, defying the most elementary limits on federal agency power.  This Court should intervene to protect fishermen from agencies run amok.”

Current government regulations compel fishermen to carry “at-sea monitors” who live with the fishermen at sea, observe their activities, check their compliance with federal regulations, and file reports upon their return to dock.  Fishermen have accepted the presence of monitors for years, and the government has historically paid for them with money appropriated by Congress.

In early 2016, however, the Government claimed to have run out of money.  Its response was to enforce a new requirement — now, the fishermen must pay for the monitors themselves, at an estimated cost of more than $700 per trip.  Most fishermen cannot afford to do so, and will be forced to abandon their livelihoods.

If the Government wants third-party monitors to police fishing activity, the Government must also take responsibility for paying for them. The district court disagreed, holding that the Government’s power to regulate the fishing industry and place monitors includes the much broader power to extract money from regulated parties when congressional appropriations run short.

The brief states:

“Such reasoning represents an unprecedented expansion of agencies’ implied powers, with implications stretching far beyond the agencies involved in this case. Contrary to the district court’s reasoning, the bedrock of administrative law is that federal agencies are limited to congressionally-delegated powers and congressionally-appropriated funds.  If they lack statutory authority or appropriated funds, they have no power to act.  They may not coerce their regulated industries to provide the funding that Congress has declined to grant.  This Court should reaffirm that principle and reverse the district court.”

For more information about the case, visit our website.

The Government Should Not Use Americans’ Confidential Tax Information to Sell ObamaCare

Washington D.C. – Cause of Action Institute (CoA Institute) today sent a Freedom of Information Act (FOIA) request to the Centers for Medicare and Medicaid Services (CMS) and requested two separate Inspector General (IG) investigations after details emerged about the federal government using confidential taxpayer information to market ObamaCare to individuals who have opted out of the program.

CoA Institute Assistant Vice President Henry Kerner: “Information obtained from tax returns should not be used to sell health insurance. The federal government is obligated to protect the confidentiality of tax returns. Instead, the Obama administration appears to be mining Americans’ tax returns to advertise and sell ObamaCare to people who don’t want it.”

A fact sheet released by CMS titled “Strengthening the Marketplace by Covering Young Adults” highlights CMS’s plan to boost ObamaCare enrollment by using taxpayer information. According to the fact sheet, “[f]or the first time this fall, we will conduct outreach to individuals and families who paid the fee for being uninsured, or claimed an exemption from that fee, for 2015.”  The law allows for personal tax information to be used only for the limited purpose of determining ObamaCare subsidy eligibility. It does not, however, permit CMS to market subsidies to taxpayers who have already rejected ObamaCare.

The potential disclosure of protected taxpayer information by the IRS raises concerns about whether the information is being appropriately safeguarded. To that end, CoA Institute sent requests for investigation to the Inspectors General of the Department of Justice (DOJ) and the Department of Health & Human Services (HHS).

In its FOIA request, CoA Institute requested all records related to the use of taxpayer information by CMS to contact individuals who paid the penalty for being uninsured in 2015, as well as all records relating to the June 2016 CMS report on how to enroll more young adults.

The FOIA to CMS is available HERE

The HHS IG request for investigation is available HERE

The DOJ IG request for investigation is available HERE

Circuit Court Hears Oral Argument in Cause of Action Institute Federal Records Act Case on Clinton Emails

Today, the Court of Appeals for the D.C. Circuit heard oral arguments in Cause of Action Institute’s lawsuit against Secretary of State John Kerry and Archivist of the United States David Ferriero.  The case originally sought to enforce the officials’ Federal Records Act duties to initiate action through the Attorney General and notify Congress because they were unable to retrieve all of the federal records former Secretary of State Hillary Clinton unlawfully removed from the State Department by setting up a personal email server to conduct official government business.  The district court below 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 oral argument heard today was on the appeal of that decision.

CoA Institute Vice President John Vecchione argued the case, which was consolidated with a similar case filed by Judicial Watch.  The three-judge panel was engaged on the issues and asked probing questions of both sides.

The oral argument can be heard in its entirety here.

CoA Institute Sues Treasury for “Sensitive” Records Concealed from Public Disclosure

Washington D.C. – Cause of Action Institute (CoA Institute) today filed a lawsuit to compel production of records from the U.S. Department of Treasury dealing with the agency’s “sensitive review” policy. These policies often delay open records requests through the Freedom of Information Act (FOIA), particularly when such productions contain politically sensitive or potentially embarrassing information, directly contrary to congressional policy.

To better understand the Treasury Department’s sensitive review procedures, who is involved, and how it is used, CoA Institute submitted a FOIA request to the agency in June 2013 seeking records relating to its FOIA process.

CoA Institute Vice President John Vecchione: “It’s ironic that our FOIA to learn more about sensitive review has itself been held up because of sensitive review. Even after the Department of Treasury agreed through mediation last year to start producing responsive records, it has failed to produce a single document. Agencies have utilized opaque sensitive review processes to delay records requests, adding months and even years to an agency’s response time. The public has a right to information about how agencies obstruct and delay open records requests that may reveal politically embarrassing information.”

According to information obtained from various agency inspectors general, similar sensitive review policies have been used at the Department of Homeland Security, Department of Interior, Department of Commerce, Department of Agriculture, Department of Health and Human Services, Department of Housing and Urban Development, and the Department of Veterans Affairs. At some agencies, sensitive review is applied not only to information the agency’s management considers sensitive, but also to any FOIA request from a representative of the news media, like CoA Institute, or where the request is likely to attract media or political attention.

Sensitive review often is conducted by political appointees—and sometimes by the Office of the White House Counsel—rather than by career FOIA professionals. These appointees sometimes required staff to find and provide information about requesters that FOIA does not require requestors to provide, such as where the requestors live, who they work for, and whether their employer is politically active or part of the news media.

The full complaint can be accessed HERE
All exhibits can be accessed HERE