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Letter to Attorney General Holder and Administrator Perciaspe - Proliferation of Settlement Abuses


Location: Washington, DC

U.S. Senator John McCain (R-AZ), Ranking Member of the Senate's Permanent Subcommittee on Investigations, today condemned the proliferation of settlement abuses orchestrated by President Obama's administration. To expose this practice, Senator McCain sent two letters to separate Obama administration officials.

In the first letter, sent to the Department of Justice, Senator McCain expressed concern that the civil rights division under Assistant Attorney General Thomas Perez has circumvented the regular rulemaking process and congressional authority by redefining long-standing legal precedent through a settlement agreement with a single university.

In that letter, Senator McCain wrote, "Without congressional authorization or even any formal agency rulemaking, Assistant Attorney General Thomas Perez and a group of lawyers in DOJ's Civil Rights Division have single-handedly redefined the meaning of sexual harassment at all universities and colleges across the country that receive public funding."

In the second letter, sent to the Environmental Protection Agency, Senator McCain stated that the agency's practice of settling lawsuits filed by ideologically-aligned environmentalist groups so as to create nation-wide policies similarly avoids congressional oversight and public accountability.

In that letter, Senator McCain wrote, "Through this "sue and settle' regimen, the EPA is able to implement nationwide rule changes without going through the regular process, while, at the same time, rewarding its advocates in the environmentalist movement."

The letters are below.

June 26, 2013

The Honorable Eric Holder

Attorney General of the United States

U.S. Department of Justice

950 Pennsylvania Avenue, N.W.

Washington, D.C. 20530

Dear Attorney General Holder:

I am writing to request more information on the settlement reached between the Department of Justice (DOJ) and the University of Montana-Missoula with regard to the enforcement and application of Title IX of the Education Amendments of 1972 ("Title IX"). Without congressional authorization or even any formal agency rulemaking, Assistant Attorney General Thomas Perez and a group of lawyers in DOJ's Civil Rights Division have single-handedly redefined the meaning of sexual harassment at all universities and colleges across the country that receive public funding.

Given that the interpretation of Title IX has such a widespread impact on the well-being of young students, it is troublesome that significant changes to nationwide sexual harassment policy were unilaterally dictated by DOJ -- through a settlement -- rather than through congressional or regulatory action. In short, Assistant Attorney General Perez and DOJ have used a settlement to effectively change the law, avoiding public accountability for their actions.

The Civil Rights Division, led by Assistant Attorney General Perez, ignored years of Supreme Court jurisprudence regarding Title IX when it decided to unilaterally make its new standard. Whereas the Supreme Court held in Davis v. Monroe County Board of Education that sexual harassment must be "so severe, pervasive, and objectively offensive that it effectively bars the victim's access to an educational opportunity or benefit," Assistant Attorney General Perez on his own volition, unauthorized and unchecked by Congress, has issued a much broader definition that may compromise the constitutional rights of students and teachers.

According to the Civil Rights Division's Letter of Findings, DOJ now defines sexual harassment as "any unwelcome conduct of a sexual nature." DOJ also requires that universities immediately take actions against students accused of harassment before the completion of any investigation. DOJ's new interpretation of sexual harassment and its suggested disciplinary procedures are direct hindrances to students' and teachers' First Amendment rights as well as their right to due process.

On June 6th Professors Ann Green and Donna Potts, members of the Committee on Women in the Academic Profession of the American Association of University Professors (AAUP), wrote a letter to Mr. Perez expressing deep concerns about the broadness of DOJ's new interpretation of sexual harassment. The letter asserted that the new definition "eliminates the critical standard of "reasonable speech,' and, in doing so, may pose a threat to academic freedom in the classroom."

Given that the new Title IX sexual harassment standards and suggested disciplinary procedures raise great concerns about the security of constitutional rights, please provide the following information by July 17, 2013.

1. From what source does DOJ claim its authority to revise Court-approved Title IX jurisprudence through the settlement with the University of Montana rather than by judicial, regulatory, or legislative means?

2. How do you specifically define "unwelcome conduct of a sexual nature"? Having promulgated a new regulatory standard regarding the definition of sexual harassment, how does DOJ plan to ensure consistent application of that standard to avoid undesirable outcomes, including vexatious litigation?

3. To what extent does the broad nature of the new and judicially untested "unwelcome conduct of a sexual nature" standard, increase the risk of a wrongful conviction?

4. Could the following scenarios constitute "unwelcome conduct of a sexual nature" and demonstrate reasonable grounds for filing a sexual harassment complaint under the new definition:

a. A professor assigning a book or showing a movie that contains content of a sexual nature.

b. A student who makes a joke of a sexual nature to a friend and is overheard by another student.

c. A student asking another student on a date.

d. A student listening to music that contains content of a sexual nature overheard by others.

e. A student giving another student a Valentine's Day card.

f. A student or professor using masculine terms for generic pronouns (e.g., "Each student must bring his own laptop to the exam.")

5. What safe harbors are available to students and teachers so that they can be assured that innocent behavior is not investigated and punished?

Thank you for your attention to this important matter.


John McCain

Ranking Minority Member

Permanent Subcommittee on Investigations

June 26, 2013

The Honorable Bob Perciasepe

Acting Administrator, Environmental Protection Agency

1200 Pennsylvania Ave NW

Washington, DC 20460

Dear Acting Administrator Perciasepe,

I am writing to request updated information on litigation against the Environmental Protection Agency (EPA) and the associated costs of attorneys' fees awarded pursuant to the Equal Access to Justice Act (EAJA). Recent media reports have described a worrying trend of the EPA and environmental groups generating new "regulations" through settlement agreements. Those settlement agreements obtain the desired policy goals of environmental groups and ultimately give money to those groups through the EAJA.

In August 2011, the Government Accountability Office (GAO) released a report that documented the number of environmental cases against the EPA from fiscal year 1995 to fiscal year 2010. It showed the cost of defending the EPA in court from 1998 through 2010 was $43 million. In addition, from 2003 to 2010, the Treasury Department paid $14.2 million in attorneys' fees to plaintiffs in environmental cases against the EPA. Furthermore, the GAO could not report on the amount spent on the EPA's own attorney fees since the EPA does not track its attorneys' time by case.

Given that successful cases against the EPA are subject to reimbursement for attorneys' fees, the report found that environmental groups profited the most from litigation against the agency. The justification for granting attorneys' fees in these cases is that the suits force the EPA to produce better regulations, but in many cases the EPA was already planning to take the steps sought by the plaintiffs. According to former EPA official Jeffrey Holmstead, the suits "involve things the EPA wants to do anyway." Additionally, the EPA's publicly-distributed "Citizen Guide" openly encourages lawsuits against the agency and underscores the opportunity for citizens to collect attorneys' fees for successful cases against the EPA, suggesting the suits are not wholly adversarial.

Some watchdog organizations have expressed concern that EPA officials are using these "sue and settle" suits to effect policy changes behind closed doors to avoid public participation and scrutiny. Holmstead notes that, "by inviting a lawsuit and then signing a consent decree, the agency gets legal cover from political heat." Major changes in policy can then be effected without legislation or even judicially reviewable agency action. Just six of the recent policies adopted in this manner will incur annual regulatory costs of up to $124 billion, far too high of a cost to be incurred without input from elected officials or the public.

Through this "sue and settle" regimen, the EPA is able to implement nationwide rule changes without going through the regular process, while, at the same time, rewarding its advocates in the environmentalist movement. Therefore, I request the following information:

1. Please provide a summary on each case filed against the EPA from 2009 to present including reference to which statute was the source of the underlying complaint, any attorneys' fees awarded, whom the attorney's fees were awarded to, and the current status of the case.

2. Please provide for each case from 2009 to the present, the date of filing and date of final disposition. Please also provide the duration to date of any ongoing cases.

3. In cases that were settled between 2009 and the present, how many officials with the authority to recommend settlement of the litigation previously held a position with the plaintiff before working at the EPA?

4. How does the EPA track the time the agency's attorneys spend on each case?

5. How many cases were settled and how many cases went to trial from 2009 to the present? Please specify which cases were settled before trial.

6. Between 1995 and 2010, Earthjustice received $4,655,425 in attorney's fees from suits against the EPA; the Sierra Club $966,687; and the Natural Resources Defense Council $242,004. Of suits against the EPA by the aforementioned groups, how many ultimately resulted in a regulatory change through settlement agreement?

Please provide your responses by July 17, 2013. Thank you for your cooperation and attention to this important matter.


John McCain

Ranking Member

Permanent Subcommittee on Investigations

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