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Roll Call: Epstein: Culture Must Protect Fed Whistle-Blowers

May 22, 2012 by

Epstein: Culture Must Protect Fed Whistle-Blowers

By Dan Epstein
Special to Roll Call

Hollywood glorifies them, the media lauds them as heroes, and Members of Congress wave bills around asserting to protect them, but are federal whistle-blowers being retaliated against by their own agencies?

The recent General Service Administration and Secret Service scandals have shone a light on the lack of protection for whistle-blowers, despite laws in place that should safeguard them. GSA employees are afraid of retaliation, according to Inspector General Brian Miller. Administrator Jeff Neely threatened that his employees would be “squashed like a bug” if they spoke out against spending abuses.

Yet some insiders are choosing to brave the storm and stand up to the government to expose fraud and waste. The Senate Homeland Security and Governmental Affairs Committee received calls from agency insiders providing tips for the panel’s probe of the misbehavior of Secret Service agents in Colombia. Numerous federal agency insiders are contacting government watchdogs with information concerning waste, fraud and mismanagement. Are these signs that something is truly rotten in Washington, D.C., or only symbolic of a vain hunt for government carrion?

In the current administration, whistle-blowers should know the policies and procedures in place that offer them protection. As virtually his first act in office, President Barack Obama issued an ethics pledge to all executive branch appointees mandating that, “the head of every executive agency shall, in consultation with the Director of the Office of Government Ethics, establish such rules or procedures … as are necessary or appropriate to ensure that every appointee in the agency signs the pledge upon assuming the appointed office.”

Because of the president’s stated commitment to ethics, Cause of Action asked the Office of Government Ethics to disclose whether the GSA violated the Standards of Ethical Conduct for Employees of the Executive Branch.

Neely’s Las Vegas boondoggle was clearly wasteful, but it may also signify something deeply unethical about federal employee conduct.

A system of accountability is only as effective as the employees charged with its use. Cause of Action continues to await disclosure by the Office of Government Ethics of any documents that may reveal violations of ethics rules by the GSA as well as disclosure by the Office of Special Counsel of complaints made against the GSA by current or former employees who were silenced or retaliated against for blowing the whistle.

The president entered office promising to “strengthen whistle-blower laws to protect federal workers who expose waste, fraud and abuse of authority in government.”

Although little-known even on Capitol Hill, the Council of Inspectors General on Integrity and Efficiency exists to oversee and evaluate federal agencies in their accountability, including their maintenance of procedures designed to protect federal whistle-blowers. Jeffrey Zients, chairman of the council and acting director of the Office of Management and Budget, has been asked to conduct an agency-wide audit, evaluation and investigation to assess the state of whistle-blower protection within the federal government and respond to those violations of ethical rules and whistle-blower laws that have occurred.

Effective government cannot take place if whistle-blowers are threatened into silence. With the recent scandals that have come to light, it is time to determine whether agencies are committed to protecting whistle-blowers. If the government fails to defend those employees who blow the whistle on waste or fraud, then the government effectively endorses a culture of reckless spending and unaccountability.

As economic growth has slowed in an already economically embattled America, now is the key time to commit to government efficiency. As several Members of Congress recently pointed out, “Cutting the fat and tightening the belt are things that all American families do. It’s wrong if the federal government refuses to do the same.”

Investigating and exposing waste in the government not only has the salutary effect of increasing accountability, but it has a concomitant influence on the government’s culture of spending. While requests were made to 32 federal agencies for records on spending on commemorative coins and awards, one might label gift spending as negligible compared to, say, Department of Defense contracts yielding illegal kickbacks. Conceded, but spending taxpayer dollars on commemorative items reveals just how numb our tax-dollar-funded federal employees have become to the idea of self-stewardship.

Callousness toward wasteful spending and a corresponding vitriol toward whistle-blowers has become epidemic in Washington. A first step to curing Washington of its culture of waste is to treat the illness by promoting and maintaining a culture that protects whistle-blowers. Only then will the president’s ethics pledge avoid what taxpayer-funded commemorative coins have turned out to be: of empty value.


Filed Under: News, Media Tagged With:

Media Advisory: Whistleblower Conference – Dan Epstein Joins Panel Discussion

May 18, 2012 by

FOR IMMEDIATE RELEASE                                                         CONTACT:

Friday, May 18, 2012                                                  Mary Beth Hutchins,  202-507-5887

 

*MEDIA ADVISORY*

CAUSE OF ACTION’S DAN EPSTEIN TO PRESENT AT WHISTLEBLOWER SUMMIT

WHAT: A panel discussion on issues affecting whistleblowers as part of the annual Whistleblower Summit: Civil & Human Rights Conference.

WHEN:       Monday, May 21, 2012,  12:30pm—1:30pm ET

 WHO: Dan Epstein, executive director, Cause of Action will offer insight into the best litigation options for whistleblowers under current law. Cause of Action is a non-partisan organization that uses public advocacy and legal reform tools to ensure greater transparency in government, protect taxpayer interests and promote economic freedom. He will be joining other panel experts from various nonprofits and NGO’s.

 WHERE:    Senate Judiciary Committee Hearing Room

226 Dirksen Senate Office Building

Washington, DC 20510

 

MORE INFORMATION: The Summit is hosted by Make it Safe Coalition (MISC), an assortment of various public interest/advocacy groups including the Government Accountability Project, the International Association of Whistleblowers, the American Federation of Government Employees, Federal Law Enforcement Officers Association, the Project On Government Oversight, the No FEAR Coalition, the Union of Concerned Scientists, the United Food and Commercial Workers International Union, Voices for Corporate Responsibility, and International Brotherhood of Teamsters; which focus on significant areas of public concern and individual rights, such as First Amendment, federal workforce, medical safety, national security, judicial reform, etc. See http://www.acorn8.com for more information on the conference.

Filed Under: Press Release

Big Government: FOIA Shows Link Between ACORN and NLRB

April 23, 2012 by

FOIA Shows Link Between ACORN and NLRB

“Cause of Action, a nonpartisan group that seeks more transparency in government, recently discovered e-mails through the Freedom of Information Act (FOIA) that show linkages between top National Labor Relations Board (NLRB) executives and ACORN, the liberal community organizing group Andrew Breitbart helped expose and eventually put out of business.

As the NLRB was attempting to block Boeing from relocating to the right-to-work state of South Carolina in the spring of 2011, Acting NLRB Counsel Late Solomon forwarded an e-mail to NLRB Director of Public Affairs Nancy Cleeland in which ACORN founder Wade Rathke expressed support for the NLRB’s attempts to block Boeing from relocating to the right-to-work state of South Carolina in the spring of 2011, according to information brought to light by the transparency group, Cause of Action.”

 

See the full post here.

Filed Under: News Tagged With: , ,

“Friends like these” NLRB email suggests ACORN, Union ties to the Board

April 20, 2012 by

An email produced via FOIA to Cause of Action in documents regarding the Boeing case before the National Labor Relations Board (NLRB) suggests a close relationship among union leaders, ACORN, and the NLRB.

In an email dated Wednesday, April 27, 2011, in response to Acting Counsel Lafe Solomon’s forwarding of email support from Wade Rathke and a union attorney, Nancy Cleeland, Director of Public Affairs at the NLRB declares: “Friends like these…”

Read the email trail for yourself and let us know what you think: NLRB-FOIA-U00004019

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Filed Under: Blog Tagged With: , ,

Coin for Coins: Cause of Action Demands Agencies Reveal Wasteful Spending on Commemorative Items

April 11, 2012 by

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Filed Under: Press Release Tagged With:

The Legal Eagle Eye: Social Media Membership’s Standing in Court

April 3, 2012 by

Cause of Action has a team of legal experts that are always looking ahead to what legal questions may be coming down the line involving public-interest organizations. In an effort to offer our expertise to any that may find it useful, we have started issuing First Impression Memos, an in-depth analysis of relevant legal questions that we may see popping up in court in the near future.

This month’s First Impression Memo is for anyone that has ever “liked” a page on Facebook, anyone that runs an organization’s Twitter account, or anyone that is simply curious about the future impact of social media activity in a court of law (this may mean you, if your organization jumped on the Pinterest bandwagon in the past few months!).

We posed the question: Can an organization sue on behalf of one of its social media fans or group members?

Here is what Cause of Action’s legal eagles found.


The Legal Eagle Eye: A First Impression Memo on Associational Standing Grounded in Injuries to Facebook Members

By Cause of Action Staff

The Question Presented: Is it possible for a public-interest organization to litigate issues as a plaintiff by asserting associational standing to sue based on alleged injuries to Facebook and other social-media followers or members, thereby enabling or compelling federal courts, consistent with constitutionally mandated Article III and prudential standing requirements, to reach the merits of the public-interest organization’s claims?

 

The Short Answer:  Probably not.  Although courts use a functional indicia-of-membership analysis, as opposed to a bright-line test, to determine whether a putative “association” has individual members that have suffered sufficient injury to have standing to sue in their own right, merely belonging to an organization’s Facebook page, following the organization on Twitter, commenting on a Facebook Wall, or the like will almost certainly not be sufficient, standing alone, to make someone a “member” on whose behalf an organization may sue.  Further, the Supreme Court has repeatedly made clear that at least one identified member of an organization must have suffered a constitutionally sufficient injury before the organization can sue in federal court on that member’s behalf.

 

The Long Answer:  An association has standing to represent the interests of its members when (i) the individual member would have standing to sue in their own right; (ii) the interests the association seeks to protect are “germane” to its purpose; and (iii) the nature of the claim and the relief sought are such that the presence of the individual members is not required.[1]  In 2009, in Summers v. Earth Island Institute,[2] the Supreme Court reaffirmed the well-established proposition that the law of organizational standing requires plaintiff organizations to make specific allegations establishing that at least one identified member has suffered or would suffer harm—meaning that at least one member that has alleged a constitutionally sufficient injury must be specifically named (in light of Iqbal and Twombly, he, she, or it would likely have to, as a practical matter, submit an affidavit as well)—unless all of the members suffer the same harm.[3]  By implication, then, the person or entity that has allegedly suffered a constitutionally sufficient injury must be a member of the association.

 

Courts use an indicia-of-membership test, first announced in Hunt,[4] supra, to determine whether an organization is a “membership association” and, if so, whether a person or entity is a “member” of that membership association.[5]  Though there is some divergence of authority regarding the analysis required by the indicia-of-membership test and how much weight to accord to that prong of the Hunt analysis for associational standing,[6] it is clear that it requires is a functional rather than formal analysis.  In Friends of the Earth v. Chevron Chemical Co.,[7] for example, the Fifth Circuit concluded, inter alia, that “an organization’s form under state law does not affect its federal standing,”[8] describing the indicia-of-membership inquiry thus:

 

The next step is to apply the Hunt ‘indicia of membership’ test. The Court in Hunt looked to who elected the governing body of the organization and who financed its activities. The purported members of FOE meet both these elements. Additionally, the members have voluntarily associated themselves with FOE, in contrast to the apple growers who financed the Commission through mandatory assessments. The individuals testified in court that they were members of FOE. FOE has a clearly articulated and understandable membership structure. This suit clearly is within FOE’s central purpose, and thus within the scope of reasons that individuals joined the organization. For all these reasons, FOE has associational standing to represent its members.

 

More recently, a federal district court explained the inquiry this way:

 

Corporate formalities and formal membership structure are not constitutional requirements for associational standing. In determining whether the relationship between  an association and its members is sufficiently close for constitutional standing, courts do not “exalt form over substance.” Thus, the association must demonstrate that the individuals it seeks to represent possess sufficient “indicia of membership.” The purpose of the inquiry is to determine whether the association provides the means by which its members “express their collective views and protect their collective interests.” In Chevron, the Fifth Circuit found associational standing even though a non-profit environmental organization did not have formal membership requirements. The court reasoned that the organization’s members joined voluntarily, testified that they were members, elected the organization’s governing body, and financed the organization’s activities. The court also reasoned that the “practice of considering all those who gave a donation, as well as those who had a donation made in their name, to be members” was a “clearly articulated and understandable membership structure.”[9]

 

The U.S. District Court for the District of Columbia recently opined that even an organization without formal members can have the “functional equivalent” of members under some circumstances:

 

[A]n organization with no formal members can still have associational standing if it “is the functional equivalent of a traditional membership organization.” Three main characteristics must be present for an entity to meet the test of functional equivalency: (1) it must serve a specialized segment of the community; (2) it must represent individuals that have all the “indicia of membership” including (i) electing the entity’s leadership, (ii) serving in the entity, and (iii) financing the entity’s activities; and (3) its fortunes must be tied closely to those of its constituency.

 

The bottom line is that there is some confusion in the courts regarding the specific analysis but there is a consensus understanding that it is indeed a functional inquiry.

 

It is doubtful there is any case law addressing the specific topic of this memorandum.  It is an issue of first impression.  As explained supra, although there are salient distinctions in the analysis that different jurisdictions use,[10] there are some common elements.  Applying these common elements using analogical reasoning to the issue presented, it is difficult to conceive of a circumstance where a person or entity’s mere Facebook following or membership via Facebook or other social-media-related connections with an organization would be sufficient, standing alone, to allow an organization to use that person or entity’s injury to serve as a basis for Article III and prudential standing.  To be sure, this is a fact-specific analysis, which will vary accordingly based on the characteristics of and relationship between the organization and its putative “members.”  However, absent some other connection between the organization and the putative “member,” mere social-media-related connections, standing alone, will likely be insufficient to confer standing.

 

It is worth noting, however, that a public-interest organization of any stripe could conceivably organize itself in such a way to make it much more likely for a Facebook or other social-media follower or member to be characterized as a “member” of a “membership association” on whose behalf the public-interest organization could litigate matters.  For example, by allowing Facebook followers to vote or donate to the organization or by somehow ensuring that the interests of the Facebook follower and organization are closely aligned, it would make it more likely that a court would conclude that the entity has organizational standing.

###

 


[1] Hunt v. Washington State Apple Advertising Comm’n, 432 U.S. 333, 343 (1977), superseded by statute on other grounds; see, e.g., National Motor Freight Assoc. v. United States, 372 U.S. 246 (1963) (association of motor carriers may represent the interests of its members in challenging an order of the Interstate Commerce Commission).  Associational standing can exist on multiple levels.  E.g., New York State Club Assoc. v New York City, 487 U.S. 1 (1988) (association of associations has standing to bring suit on behalf of its member associations so long as they, in turn, would have standing to bring suit on behalf of their individual members).

[2] 555 U.S. 488 (2009).

[3] Id. at  498-99.  The Summers Court observed in dictum that “[w]ithout individual affidavits, how is the court to assure itself that the Sierra Club, for example, has ‘thousands of members’ who ‘use and enjoy the Sequoia National Forest’?” Id. at 499.  Cf. NAACP v. Alabama ex rel. Patterson, 357 U.S. 449, 459 (1958) (all organization members affected by release of membership lists, thus no need to name specific member).

[4] See Hunt, 432 U.S. at 344-45 (“Moreover, while the apple growers and dealers are not ‘members’ of the Commission in the traditional trade association sense, they possess all of the indicia of membership in an organization. They alone elect the members of the Commission; they alone may serve on the Commission; they alone finance its activities, including the costs of this lawsuit, through assessments levied upon them. In a very real sense, therefore, the Commission represents the State’s growers and dealers and provides the means by which they express their collective views and protect their collective interests.”).

[5] See, e.g., American Legal Foundation v. FCC, 808 F.2d 84, 90 (D.C. Cir. 1987)  (“ALF’s relationship to its ‘supporters’ bears none of the indicia of a traditional membership organization discussed in Hunt. With its broadly defined mission as a ‘media watchdog,’ ALF serves no discrete, stable group of persons with a definable set of common interests. To the contrary, ALF’s constituency of supporters is completely open-ended; ALF could, consistent with this ‘institutional commitment,’ purport to serve all who read newspapers, watch television, or listen to the radio. Furthermore, it does not appear from the record that ALF’s ‘supporters’ play any role in selecting ALF’s leadership, guiding ALF’s activities, or financing those activities. Finally, we can discern no linkage between ALF’s interest in the outcome of this kind of litigation and those of its supporters.”).

[6] See Kristen L. Melton, Friends of the Earth, Inc. v. Chevron Chemical Co.: The United States Court of Appeals for the Fifth Circuit Extends Associational Standing to a Nonmembership, Nonprofit Corporation, 72 Tul. L. Rev. 1875,  1886-87 (1998) (“In determining whether to extend associational standing to organizations seeking to represent nonmembers, the United States Courts of Appeals for the Third, Sixth, and Seventh Circuits focus almost exclusively on the second factor of Hunt’s three-factor analysis, the ‘indicia of membership’ test, and fail to apply even that factor rigorously. The District of Columbia Circuit, however, applies all factors and distinguishes between members and others who may associate with an organization, such as general supporters.  Similarly, some district courts examine all three factors and recognize distinctions between members and solicitors, contributors, and customers. Until the noted case, neither the Fifth Circuit nor its district courts had addressed associational standing for a nonmembership corporation.”).

[7] 129 F.3d 826 (1997).

[8] Id. at 828.

[9] Concerned Citizens Around Murphy v. Murphy Oil USA, Inc., 686 F. Supp. 2d 663, 675 (E.D. La. 2010).

[10] Compare Public Interest Research Group v. Magnesium Elektron, 123 F.3d 111, 119 (3d Cir. N.J. 1997) (“MEI argues that PIRG lacks organizational standing because its members do not have standing to sue individually based on the facts of this case. MEI’s counsel also contended at oral argument that PIRG and FOE lacked standing because their charters prohibit them from having members. We do not accept this formalistic argument because it lacks merit. To meet the requirements of organizational standing, PIRG and FOE need only prove that their members possess the “indicia of membership”  [**20]  in their organizations. Hunt, 432 U.S. at 344, 97 S. Ct. at 2442. Thus, in considering PIRG’s standing, we will consider only if PIRG’s members would have standing as individuals to sue MEI.”), with American Legal Found. v. FCC, 808 F.2d 84, 88, 91 (D.C. Cir. 1987) (finding that a nonprofit legal foundation whose charter prohibited the foundation from having members did not have standing to represent the interests of television viewers or supporters), and Health Research Group v. Kennedy, 82 F.R.D. 21, 26 (D.D.C. 1979) (holding that public interest organization, organized as nonprofit corporation under the laws of the District of Columbia, did not have representational standing to sue on behalf of its contributors and supporters, noting that “[a]lthough none of the characteristics of the non-membership association … [are] immutable requirements for representational standing of all non-membership organizations, Hunt clearly reaffirms that a plaintiff cannot gain standing merely on a showing that its interests and expertise are germane to the interests of any third parties who would have standing in their own right … [and] strongly suggests that some very substantial nexus between the organization and the parties it purports to represent will be required where those parties are not actually members”).

 

Note: These memos are intended for public education and are not legal advice.

 

Filed Under: Blog

Dan Epstein on FoxNews.com: Does it take a lawsuit for the White House to be transparent?

March 23, 2012 by

Read the full story here. Fox News

“Dan Epstein writes on FoxNews.com today, “On his very first day in the White House, the president remarked “transparency and the rule of law will be the touchstones of this presidency.” So when Cause of Action asked the Office of Management and Budget(OMB) to release documents that might indicate some coordination between federal agencies and members of Congress on administrative earmarks, in addition to concerns that grant dollars were not being doled out competitively, there should have been no objection.

But the OMB has failed to release these documents. So Cause of Action is taking the White House to court, because taxpayers deserve to know if federal agencies are working behind the scenes with members of Congress to create pet projects with their tax dollars. In an era where transparency is not just touted, but promised, it is incredibly disappointing to be faced with an administration that refuses to cooperate.”

Filed Under: News Tagged With: ,