DHS inspector general’s lawsuit takes aim at oversight of the IGs

Joseph Cuffari, the inspector general for the Department of Homeland Security, is suing the Council of Inspectors General on Integrity and Efficiency over what his lawyers call “baseless inquiries” into his conduct.

The unusual lawsuit pits Cuffari and some of his top aides against his fellow inspectors general in a complaint that challenges the authority and structure of the council’s Integrity Committee. He has enlisted a legal team from an advocacy group that said it views the “administrative state” as “a threat to the Constitution.”

And court documents show the Integrity Committee has been probing Cuffari’s actions around the deleted Secret Service texts from the Jan. 6, 2021 Capitol riot.

In addition to Cuffari, the plaintiffs are Kristen Fredricks, chief of staff to Cuffari and acting deputy IG for external affairs; James Read, chief counsel to Cuffari; and Joseph Gangloff, a former deputy director for the Office of Government Ethics. Gangloff is not among Cuffari’s aides, but he has faced inquiries from the Integrity Committee over his actions when he was chief counsel in the Social Security Administration’s OIG.

The complaint, filed last week in the U.S. District Court for the Eastern District of Virginia, alleges a “campaign of distraction and harassment” against Cuffari since he assumed the DHS IG position in July 2019. The lawsuit alleges many of the complaints investigated by the CIGIE’s Integrity Committee stem from Cuffari’s efforts to reform a DHS OIG that was rife with problems prior to his tenure.

“The incessant complaints to the IC and IC’s never-ending investigations of these obviously meritless grievances caused substantial interference with IG Cuffari’s official duties,” the lawsuit states.

Cuffari and his fellow plaintiffs declined to comment through their lawyers.

The defendants in the suit include Kevin Winters, Amtrak’s inspector general who also serves as chairman of the Integrity Committee, and Robert Storch, the Defense Department’s inspector general who serves as vice chairman of the committee. They also include other IGs who serve as members of the Integrity Committee.

“CIGIE is aware of the complaint, and we look forward to working with the Department of Justice on this matter,” CIGIE spokesman Doug Holt wrote in an email to Federal News Network.

The lawsuit aims to cut off any current or future inquiries by the Integrity Committee into Cuffari’s or his aides’ actions. The complaint also challenges the lawfulness of the CIGIE Integrity Committee itself, alleging it is an “unconstitutionally structured entity.”

The National Civil Liberties Association is representing Cuffari and his fellow plaintiffs. The NCLA said its litigation and advocacy “strive to tame the unlawful power of state and federal agencies and to foster a new civil liberties movement that will help restore Americans’ fundamental rights.”

Cuffari’s complaint shows he has previously pushed back against CIGIE and the Integrity Committee’s attempts to probe his actions.

In an Oct. 27, 2020 letter to Winters provided as an attachment to the lawsuit, Cuffari argues he himself is a “whistleblower” who made “protected disclosures” to Congress and the Integrity Committee regarding “serious misconduct” by DHS OIG senior officials.

In the letter, Cuffari argued the Integrity Committee’s actions to investigate complaints against him represented “retaliation and bias.” Cuffari also contended Winters should recuse himself from future Integrity Committee matters regarding him and his top aides.

Liz Hempowicz, the vice president of policy and government affairs at the Project on Government Oversight, noted Cuffari has also run afoul of Congressional overseers. POGO has called on President Joe Biden to fire Cuffari.

Hempowicz pointed to concerns from lawmakers over Cuffari’s response to reports that he diminished and delayed reports of sexual assault, domestic violence and other misconduct by DHS law enforcement officials.

House Democrats have also accused Cuffari of obstructing investigations into the missing Secret Service texts from the Jan. 6 Capitol riot after he refused to comply with requests for internal documents and sit-down interviews.

“He is an Inspector General who feels like his work is completely above reproach, that no one is authorized to ask questions about how he’s approaching his job or to judge if he’s doing it effectively,” Hempowicz said. “It’s baffling to see from somebody whose main job is oversight and accountability to be so resistant to it for yourself.”

Secret Service texts under inquiry

The lawsuit sheds some light on the scale and scope of complaints against Cuffari since he assumed the IG position in July 2019.

Cuffari and his aides have received 63 requests for information from the Integrity Committee dating back to September 2019, according to the complaint. Some have been closed with no action or any adverse findings against Cuffari, but 13 remain pending, along with 18 “supplemental inquiries” recently added, according to the complaint.

Meanwhile, the Integrity Committee is actively probing Cuffari for his actions surrounding the missing Secret Service texts from the day of the Capitol riot.

House Democrats have excoriated Cuffari and his senior staff over their handling of the matter, alleging that DHS IG officials knew about the missing text messages and abandoned efforts to recover them nearly a year before they first informed Congress they were erased.

The lawsuit states the Integrity Committee sent a request for information to Fredricks regarding the Secret Service texts as recently as April 3, according to the lawsuit.

“A week after her testimony as a witness in a complaint against IG Cuffari, the IC notified Ms. Fredricks that she was now the subject of yet another complaint,” the complaint states. “The new investigation concerned alleged deletions of the U.S. Secret Service text messages which referenced the events of January 6, 2021. Mr. Cuffari was also a subject of this complaint.”

John Vecchione, senior litigation counsel at NCLA, said the lawsuit was not prompted by the Secret Service probe.

“The real thing driving this is that it’s a relentless drumbeat of different allegations all over the place,” Vecchio said.

‘Super IG’ claim

The 173-page complaint contends the CIGIE Integrity Committee operates as a “Super IG” with little oversight. It claims the IC violates the Constitution’s appointments clause and represents an “unconstitutional delegation of federal power to a private entity” due to the presence of IGs from organizations like Amtrak, among other counts.

Dan Meyer, national security partner at Tully Rinckey’s Washington, DC office and a former official at the DoD OIG, said the Integrity Committee has had a far different reputation prior to Cuffari’s lawsuit.

“The idea was that the Integrity Committee would be the neutral body that could review these complaints,” Meyer said. “The problem is that the Integrity Committee, far from what Cuffari and his team are saying, has a reputation for not doing anything.”

The Integrity Committee was established by the Inspector General Reform Act of 2008 to review and refer allegations of wrongdoing made against IGs and their staffs.

The committee opened 80 cases and closed 67 in fiscal 2022, and the majority were closed without external referral, according to its latest annual report.

It notes “case complexity and staff availability” have posed challenges to the committee meeting deadlines of an initial 30-day review period for complaints, as well as a subsequent 150-day investigation period, if merited. The committee was supported by four full-time employees in fiscal 2022, and one of those employees returned to their home agency in November, the report notes.

The Integrity Committee completed just two investigations in fiscal 2022, according to the report, while 10 investigations are currently pending.

POGO, which has pushed for reforms to the Integrity Committee in its mission to provide oversight of IGs, recently applauded the committee’s recent shift to be more transparent about its activities.

But Hempowicz said Cuffari’s case “threatens to upend independent oversight” of IGs.

“If he is successful and Joseph Cuffari is able to create this ethos in this world where inspectors general are completely above any kind of oversight from within the executive branch or from the legislative branch, then we’re in real trouble,” she said.

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