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07/13/2017

CoAI to President Trump: Appoint Commissioners to FTC

Letter urges swift action to break deadlock, free U.S. businesses from unwarranted, abusive enforcement actions

Washington, D.C. – Cause of Action Institute (“CoA Institute”) sent a letter to President Trump, imploring him to move quickly to appoint one or more commissioners to fill current vacancies at the Federal Trade Commission (“FTC”). The letter suggests that just one additional commissioner could break deadlock to halt the agency’s pattern and practice of regulatory overreach and rein in recent unconstitutional enforcement actions that harm the economy and the rule of law.

The letter states that although the FTC’s acting chair, Maureen Ohlhausen, “has done a commendable job of addressing the excesses and lawlessness that plagued the agency, the acting chair cannot fully right the ship unless and until you appoint one or more commissioners who share her commitment to advancing economic liberty and believe that responsible businesses should have the freedom to succeed, unfettered by rogue regulators chasing chimerical harms.”

The letter states:

“The acting chair’s ability to promote competition and protect the free market and consumers from overregulation and overreach is hamstrung by the current gridlock on the Commission. Although Congress intended for the Commission to be an independent, bipartisan, five-member administrative body, there are currently only two commissioners: Acting Chair Ohlhausen, a Republican, and Commissioner Terrell McSweeney, a Democrat.

“Because a majority of commissioners must vote to approve most Commission actions, and because only one of the two current commissioners shares the administration’s commitment to cutting bureaucratic red tape to grow the economy, the Commission is hopelessly deadlocked on important policy issues affecting the entire private economy, such as the FTC’s controversial efforts to regulate data security, technology, and privacy for all U.S. businesses citing its authority under Section 5 of the FTC Act to prohibit ‘unfair’ or ‘deceptive’ business practices.”

The letter highlights several controversial “midnight” enforcement actions initiated just before the Trump administration began, that were undertaken in the absence of proven consumer harm. For instance, as the acting chair explained in her dissent from one such “midnight” enforcement action:

“[I]n the Commission’s 2-1 decision to sue Qualcomm, I face an extraordinary situation: an enforcement action based on a flawed legal theory (including a standalone Section 5 count) that lacks economic and evidentiary support, that was brought on the eve of a new presidential administration, and that, by its mere issuance, will undermine U.S. intellectual property rights in Asia and worldwide. These extreme circumstances compel me to voice my objections.”

The letter concludes, “[T]he acting chair should not be the lone (and thus powerless) voice of reason and sound economic policy on the Commission. For these reasons, we respectfully ask that you expeditiously appoint one or more Commissioners to the FTC at your earliest convenience to assist the Acting Chair in furtherance of this Administration’s efforts to reduce regulatory burdens and improve Americans’ liberty to create.”

The letter was signed by John J. Vecchione, president and CEO of CoA Institute. The full letter is available here

For information regarding this press release, please contact Zachary Kurz, Director of Communications: zachary.kurz@causeofaction.org

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07/13/2017

CoAI Seeks Supreme Court Review of Job-Killing Fishing Regulation

High Court may be last hope to halt regulation that will put 60 percent of New England ground fishermen out of business

Washington, D.C. – Cause of Action Institute (“CoA Institute”) has filed a petition for writ of certiorari urging the U.S. Supreme Court to review the legal arguments of our clients, groundfisherman David Goethel and a group of Northeast fishermen, who sued the U.S. Department of Commerce after the agency shifted the costs for at-sea monitors onto industry. At more than $700 per day at sea, these costs are more than double what many small-boat fishermen take home from an average day of fishing.

Both the U.S. District Court for New Hampshire and the First Circuit Court of Appeals dismissed the case, ruling that the fishermen’s suit was untimely based on when the rule was first disseminated, even though the regulatory costs were not shifted to industry until several years later.

CoA Institute Vice President Julie Smith: “Our clients deserve an opportunity to be heard on the merits. Fishermen who have done nothing wrong should not be put out of business by an unlawful regulation.”

The petition states:

“The First Circuit, in defiance of this Court’s precedents, refused to reach the merits of the fishermen’s challenge, holding that even though the fishermen would certainly face enforcement action for failure to comply with the Government’s unlawful monitoring requirement, they missed any opportunity to seek preenforcement review of that regulation. By requiring Petitioners to, quite literally, ‘bet the boat,’ the First Circuit has committed clear error in ignoring this Court’s precedents on pre-enforcement review…

“Here, the Government waited five years before deciding to implement the industry-funding requirement for the groundfish At-Sea Monitoring Program. Petitioners promptly filed suit, but, so far, have been denied a decision on the merits of their case. This Court should grant review to settle these . . . important questions of law and vindicate its own precedents, which will give the New England fishing industry a second chance at life.”

David Goethel: “After 30 years of fishing, I can’t afford to fish any longer if I’m forced to pay for at-sea monitors. These regulatory costs will devastate small boat fishermen like myself. The Supreme Court may be our last hope to save an industry that for centuries has provided a living for fishermen in New England.”

Northeast Fishery Sector 13 Manager John Haran: “The fishermen in my sector can’t sustain this industry funding requirement and many will be put out of business if this mandate remains in place. The livelihoods of generations of proud fishermen in New England are at stake.”

Case Background:

In November 2015, the Department of Commerce finally announced the date by which sector fishermen, who fish for cod, flounder and certain other ground fish, must not only carry third-party contractors known as “at-sea monitors” on their vessels during fishing trips, but also pay out-of-pocket for the cost of those monitors.  CoA Institute’s clients filed suit to challenge this “industry funding” requirement, which will devastate the Northeast fishing industry, at the price of many jobs and family livelihoods.

In July 2016, the U.S. District Court for the District of New Hampshire dismissed the lawsuit. CoA Institute appealed the decision and in April 2017, the First Circuit Court of Appeals upheld the District Court’s ruling, but without addressing the merits of the case. The Circuit Court held that the fishermen’s suit was untimely, and must have been filed within thirty days of the original agency rule that mandated industry-funding, despite the fact that the requirement never enforced for nearly half a decade.  Interestingly, while the First Circuit did not address the merits of the case, it did emphasize the devastating economic impacts of the regulation and, in a rare move, urged congressional action to clarify the law regarding who should pay for the at-sea monitors.

To learn more, visit the Cause of Action Institute website.

For information regarding this press release, please contact Zachary Kurz, Director of Communications: zachary.kurz@causeofaction.org

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07/6/2017

Is NOAA deleting records? CoA Institute sues for important communications about fisheries regulation

In passing the Freedom of Information Act (“FOIA”) and the Federal Records Act, Congress intended for internal agency communications to be logged and, in many cases, retrievable under the FOIA.  Attempts by agencies and officials to evade such transparency violate the core principles of government accountability and recently resulted in a highly publicized scandal that enveloped Secretary Hillary Clinton’s campaign for president.

So in the wake of the Clinton e-mail scandal, have agencies learned their lesson?  For the National Oceanic and Atmospheric Administration (“NOAA”), this doesn’t appear to be the case.  Cause of Action Institute (“CoA Institute”) recently submitted multiple FOIA requests for NOAA’s records retention policies and internal communications from the time period surrounding the recent New England Fishery Management Council (“NEFMC”) meetings.  In addition to asking for emails, CoA Institute also requested Google Chat/Google Hangout (“GChat”) records.

Anyone who regularly uses G-Mail is familiar with GChat and its “off the record” feature, which disables message logging.  Unfortunately, a 2012 NOAA memo indicates that NOAA enabled the “off the record” feature agency-wide.  There’s no indication that NOAA is using any other method to log these communications.  This likely violates the Federal Records Act and frustrates public efforts to file FOIA requests seeking to better understand government decision-making.

CoA Institute is interested in the communications between NOAA officials during the recent NEFMC meetings.  These meetings were important because, at their conclusion, the NEFMC voted to adopt an amendment that would extend coverage of “at-sea monitors” on the fishing industry.  This could have devastating effects on the ability of small-boat fishermen to continue to pursue their livelihoods.  This amendment now goes to the Secretary of Commerce for his approval, and it is critical that the public understand the thought process used by NOAA to get this result, which would be revealed by reading its internal communications.

NOAA’s response to CoA Institute’s FOIA request was unusual.  First, it declared the request was non-billable, meaning CoA Institute would not need to pay fees for compiling the information.  This is appropriate given both the public interest in these records and CoA Institute’s status as a news media requester organization.  NOAA later rescinded its non-billable determination and demanded CoA Institute submit more information relevant to the fee waiver request.  CoA Institute did so, but, to date, NOAA has not responded.  In our letter, we express concern with how NOAA is handling this request:

If NOAA is concerned that records responsive to this request will cast the agency in an unflattering light or reveal that its recordkeeping practices are in violation of law, it cannot weaponize fee waivers to prevent disclosure. To do so would not only be a violation of the law, but it would strike a grave blow to transparency.

With today’s lawsuit, NOAA has no choice but to produce the requested records.  If the agency is unable to locate any GChat records because they were improperly deleted, NOAA must publicly admit this, immediately take steps to recover the records, and change its policies for future record retention to comply with the law.

Eric Bolinder is Counsel at Cause of Action Institute.

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07/6/2017

The White House Should Follow Arizona Governor Ducey’s Lead and Implement an Online Portal Where Americans Can Suggest Regulations to Eliminate

On January 9, 2017, Arizona Governor Doug Ducey announced a new program designed to reduce outdated and burdensome regulations and to promote economic growth and job creation. His goal is to eliminate 500 regulations by the end of 2017.  To achieve this goal, Governor Ducey created a website—RedTape.AZ.Gov—where Arizonans can “crowdsource” recommendations on which regulations should be eliminated and submit those recommendations directly to the governor’s office.[1]  The website provides an easy, streamlined way for citizens to assist in the regulatory reform of their state.  This approach recognizes and honors what F.A. Hayek called the knowledge problem, that is, that the information necessary to make informed and efficient decisions is decentralized and that the top-down model is doomed by its arrogance.

President Trump’s White House should follow suit if it is serious about reducing the strain old regulations put on the country. President Trump issued Executive Order 13,777 on February 24, 2017, which requires that agencies designate a Regulatory Reform Officer (RRO) to implement a regulatory-reform agenda that implements, inter alia, Executive Order 13,771, which requires agencies to remove two regulations for each new one they issue.[2]  Neither of those orders contain a way for ordinary Americans to provide transparent input into this important process.  Several agencies have decided to open public-comment periods so that stakeholders and the public can provide input, but this approach leaves the comments scattered by agency and makes it difficult to aggregate.[3]  In addition, not every agency has decided to offer a public-comment period, leaving ordinary Americans without a voice.

The White House subsequently issued Executive Order 13,781 on March 13, 2017.[4]  This order created a website that allowed the public to submit comments on ways to optimize and reorganize the federal government.  While Executive Order 13,781 is a step in the right direction, it contains two fatal flaws.  First, the comment period closed on June 12, 2017 when it should be kept open permanently.  Second, the White House said it received over 100,000 comments during the comment period, but those comments are not available to the public.[5]  Cause of Action Institute submitted a FOIA request to the Office of Management and Budget, which administered the website, seeking access to those comments.[6]  Even though that request is still pending, the White House can take immediate steps to launch an improved website.

To foster and promote transparent regulatory reform, Cause of Action Institute recommends the White House launch a new website devoted to receiving recommendations from the public.  The recommendations could then automatically be forwarded to each agency’s RRO.  To ensure a transparent comment process, the recommendations should be accessible to the public and easily searchable by agency, topic, regulation identifier number, and other filters.  The website could foster public discourse by allowing the public to upvote or downvote comments, respond to specific comments, and suggest related regulations to comment on.  Finally, the website should not have a deadline for submissions but instead permanently allow Americans to make recommendations to reform the administrative state.  By providing a central, permanent website for submitting and reviewing recommendations, the White House can achieve its regulatory reform agenda more efficiently and promote accountability while ensuring that all Americans have a voice in the process.

Travis Millsaps is counsel at Cause of Action Institute.

[1] Press Release, Gov. Doug Ducey, Governor Ducey Announces RedTape.AZ.Gov (January 9, 2017), https://azgovernor.gov/governor/news/2017/01/governor-ducey-announces-redtapeazgov.

[2] See Exec. Order No. 13,777, 82 Fed. Reg. 12285 (Mar. 1, 2017), https://www.whitehouse.gov/the-press-office/2017/02/24/presidential-executive-order-enforcing-regulatory-reform-agenda; Exec. Order No. 13,771, 82 Fed. Reg. 9339 (Feb. 3, 2017), https://www.whitehouse.gov/the-press-office/2017/01/30/presidential-executive-order-reducing-regulation-and-controlling.

[3] See Evaluation of Existing Regulations, 82 Fed. Reg. 17793 (proposed April 13, 2017), available at https://www.regulations.gov/document?D=EPA-HQ-OA-2017-0190-0042.

[4] See Exec. Order No. 13,781, 82 Fed. Reg. 13959 (Mar. 16, 2017), https://www.whitehouse.gov/the-press-office/2017/03/13/presidential-executive-order-comprehensive-plan-reorganizing-executive.

[5] See Reorganizing the Executive Branch, The White House, https://www.whitehouse.gov/reorganizing-the-executive-branch (last visited June 29, 2017).

[6] Press Release, Cause of Action Institute, White House Should Release 100K Public Comments on Reforming Government (June 19, 2017), https://causeofaction.org/white-house-release-100k-public-comments-reforming-government/.

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07/6/2017

CoAI Sues NOAA for G-Chat Records Surrounding Controversial Amendment to Expand Industry-Funded At-Sea Monitoring

Unlawful agency directive appears to greenlight concealed communications on internal messaging platform

Washington D.C. –Cause of Action Institute (“CoA Institute”) today filed a lawsuit against the National Oceanic and Atmospheric Administration (“NOAA”) for Google Chat or Hangouts communications from the New England Fishery Management Council’s (“NEFMC”) April 2017 meeting. The suit also seeks internal guidance on retention of Google Chat records on the agency’s internal messaging platform. NOAA failed to respond to two Freedom of Information Act (“FOIA”) requests submitted in May for these records.

The records sought by CoA Institute include guidance from NOAA’s Office of General Counsel for the retention of instant messages through the “Google Chat” or “Google Hangouts” feature of NOAA’s internal Unified Messaging System. According to a March 2012 NOAA handbook, employees were instructed that these messages “will be considered ‘off the record’ and will not be recorded in anyway.”

CoA Institute Vice President Julie Smith: “NOAA appears to have created an internal messaging platform to hide records from public disclosure. Any directive to make certain communications be considered ‘off-the-record’ clearly violates transparency laws.  Americans have a right to know how decisions are made that could jeopardize their livelihoods.”

The lawsuit also seeks all communications sent or received by employees of NOAA’s NEFMC who attended the April 18–20, 2017 meeting. During this meeting, the NEFMC approved a controversial amendment to expand the use of industry-funded at-sea monitors to the herring fishery and to prepare for its further expansion through all regional fisheries.

CoA Institute submitted a regulatory comment opposing the so-called Industry-Funded Monitoring Omnibus Amendment due to negative economic impacts that threaten the livelihoods of countless small-business fishermen. The cost for a monitor under the amendment would cost fishermen more than $700 per day at sea.  That would exceed the revenue a fisherman typically lands from his daily catch. The Secretary of Commerce has since commenced a review of the rule for compliance with federal law.

The full complaint is available here.
The two earlier FOIA requests are available here and here.

For information regarding this press release, please contact Zachary Kurz, Director of Communications: zachary.kurz@causeofaction.org

 

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06/30/2017

LabMD and the FTC–Rough Day for the Government

On January 21, 2017 LabMD v. FTC, a case where we here at Cause of Action Institute weighed in with a friend of the Court brief on behalf of affected medical professionals [see brief here], was argued.  You should listen to it here.

CoA Institute also represented LabMD in the FTC proceedings and in collateral federal court actions seeking to halt the FTC’s administrative prosecution in the U.S. District Court for the Northern District of Georgia and in the U.S. Court of Appeals for the Eleventh Circuit. The arguments made here, and seemingly grasped by the 11th Circuit at oral argument, have been made by CoA Institute for quite some time.  This case was heard before three experienced jurists Gerald B. Tjoflat, Charles R. Wilson and Senior U.S District Court Judge Eduardo C. Robreno. (Interestingly, Judge Robreno is within the Third Circuit but sat on the 11th here).

Suffice to say it was not a good day for the ham-handed actions of the FTC in this case. The Court focused on the fact there appeared to be no harm to anyone from the action sued upon.  “A tree fell and nobody heard it, that’s the case we have here,” said Judge Tjoflat (if my memory for voices is accurate).  A nice summary of some of the more pungent comments from the bench were listened to, are found in Westlaw, and transcribed here:

“Counsel, let me put it this way. What the aroma that comes out of this case is that Tiversa was shaking down private industry with the help of the FTC, with the threat of going to the FTC. If you don’t cooperate, we will go to the FTC. It may well be how they got some of their clients…

“That’s an aroma, with falsifications to the commission. The administrative law judge just shredded Tiversa’s presentation, just totally annihilated it.”

In this case, the FTC with no consumer complaints, and no evidence of injury, and with no prior standards issued by the FTC for data security, put a company many physicians relied upon completely out of business. This is so even though the medical privacy act embodied by HIPAA was not violated.

The FTC relied on false information from Tiversa. “Oh, Come on!” said Judge Tjoflat responding to the assertion the FTC did not rely on that information to prosecute the matter.   Their own ALJ heard the facts (presented by CoAI) and destroyed the case and the Commission just overruled it; an appeal to Power and not Reason.  Judge Wilson specifically asked how LabMD would know it’s procedures would violate any standard.

The 11th Circuit already stayed the FTC Order with an Order of its own that bodes ill for Government.  Now we have this oral argument where the FTC was completely friendless.

Douglas Meal of Ropes & Gray, who argued the matter for LabMD, deserves kudos for a job well done. as does the rest of the Ropes & Gray team.  I will also note that Patrick Massari and Michael Pepson did a splendid job on the amicus brief which argument was also mentioned by the Court.

John J. Vecchione is President and CEO of Cause of Action Institute.

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06/28/2017

Supreme Court to Hear Case on Obstruction of the Tax Code

The Supreme Court this week announced that it will hear the case of Carlo Marinello, II v. United States next fall.  The Supreme Court granted Mr. Marinello’s petition for a writ of certiorari after considering it in conference on June 26, 2017, the Court’s last day of the summer session.  Cause of Action Institute filed an amicus curiae brief in support of Mr. Marinello’s petition, urging the Supreme Court to hear the case to address the Second Circuit’s expansive reading of a tax statute that could be interpreted to criminalize routine conduct of everyday American taxpayers and business owners.

Mr. Marinello owned a small courier service in New York. In 2012, the United States obtained an indictment against him under 26 U.S.C. 7212(a)’s “omnibus clause” of the criminal tax code, which makes it a felony to “in any other way corruptly…obstruct [] or impede [] or endeavor to obstruct or impede, the due administration” of the tax code.  The government argued that Mr. Marinello could be guilty of corruptly obstructing or impeding the administration of the tax code by performing acts as common as failing to maintain books and records for his small business, failing to provide his accountant with complete information, and discarding business records, all because he did these acts with the goal of not paying taxes.  However, the tax code already outlaws tax evasion, and it requires that the government prove a heightened criminal intent—that the defendant acted “willfully.”  The Sixth Circuit, in order to cabin its expansive language, has held that an individual must have knowledge that his or her conduct is obstructing an ongoing IRS investigation in order to be found guilty under the omnibus provision.  The Second Circuit and other courts of appeals have interpreted the language much more broadly, however, causing a circuit split.

Cause of Action’s amicus curiae brief highlighted the importance of preserving mens rea, or “guilty mind” requirements and the need for our criminal code to clearly inform people about what is, or is not, illegal.  As Judge Jacobs wrote in his dissent from the rest of the judges on the Second Circuit, “if this is the law, nobody is safe.”  Cause of Action hopes that the Supreme Court will cabin the omnibus clause as the Sixth Circuit has done and intends to file a new amicus curiae brief at the merits stage.  You can check out our prior blog post on this case here.

Erica Marshall is counsel at Cause of Action Institute.

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