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lion was awarded four months after the conviction of the
Another one. The reason that the Army Corps gave for
Now we have had hearings on fraud that is perpetuated against Government agencies, not just against DOD. Our hearings in the Subcommittee on Governmental Affairs that Senator Cohen ... chairs, goes much beyond, but we came up with examples both where DOD does not give presumptive validity to other agencies disbarring. Now this case comes to my attention which I frankly find to be unbelievable.
Mr. CARLUCCI. I find it to be unbelievable as well. I certainly would like to look into that. (Id. at 1144] Following the hearing, said Judge Richey, the Corps recieved a number of inquiries from DOD and the Army regarding the Corps' decision to continue to do business with Kiewit and the 15 other convicted firms. The court also found that three days after the hearing Senator Levin submitted to the Army written questions concerning the Corps' dealings with the aforementioned firms. The court then reviewed the case law on Congressional interference with the administrative process and concluded that Senator Levin's actions were the basis of the defendants' improper actions:
In Schlesinger v. United States, [390 F. 2d 702 (Ct. Cl. 1980)] supra, the Court of Claims described the factual circumstances as follows:
Although the Congressional communication
F. 2d at 708).
Such abdication of responsibility we have
This principle should have even more application to the even more drastic sanction of blacklisting, which is basically one of the practical results in the case at bar.
In The Pillsbury Co. v. FTC, 354 F.2d 952 (5th Cir. 1966), a Federal Trade Commission order was reversed and set aside, because Congressional intervention in the form of questioning (at a legislative hearing) of the correctness of the agency's approach deprived the corporation involved of due process. The Court said:
There are those who “take a rather dim view of (such] committee pronouncements as to what agency policy should be, save when this is incident to proposals for amendatory legislation.” Friendly, The Federal Administrative Agencies 169 (Harvard University Press 1962). Although such investigatory methods raise serious policy questions as to the de facto "independence" of the federal regulatory agencies, it seems doubtful that they raise any constitutional issues. However, when such an investigation focuses directly and substantially upon the mental decisional processes of a Commission in a case which is pending before it, Congress is no longer intervening in the agency's legislative function, but rather, in its judicial function. At this latter point, we become concerned with the right of private litigants to a fair trial and, equally important, with their right to the appearance of impartiality, which cannot be maintained unless those who exercise the judicial function are free from powerful external influences. See In re Murchison, 349 U.S. 133, 136, 75 S.Ct. 623 (625), 99 L.Ed. 942 (1955); United States ex rel. Accardi v. Shaughnessy, 347 U.S. 260, 267-68, 74 S.Ct. 499 (503), 98 L.Ed. 681 (1954). “A first principle of Anglo-American Jurisprudence, * * * basic to the conception of due process in the procedural sense' is that the ends do not justify the means. Douglas, We The Judges 354 (Doubleday 1956).
To subject an administrator to a searching examination as to how and why he reached his decision in a case still pending before him, and to criticize him for reaching the "wrong" decision, as the Senate subcommittee did in this case, sacrifices the appearance of impartiality—the sine qua non of American judicial justice-in favor of some short-run notions regarding the Congressional intent underlying an amendment to a statute, unfettered administration of which was committed by Congress to the Federal Trade Commission (See 15 U.S.C.A. 21).
It may be argued that such officials as members of the Federal Trade Commission are sufficiently aware of the realities of governmental, not to say
“political,” life as to be able to withstand such
964.) Also, D. C. Federation v. Volpe, 459 F.2d 1231 (D.C. Cir. 1971).
In Texas Medical Association v. Matthews, 408 F. Supp. 303 (W.D. Texas 1976), the Court set aside agency action which it found was based, in part, on pressures emanating from Congressional sources. The Court said:
The controlling principle of law thus enunciated in D.C. Federation v. Volpe is that agency action is invalid if based, even in part, on pressures emanating from Congressional sources. Through an array of administrative law precepts reviewing courts are properly constrained from substituting their own judgment for that of the administrative agency. But those precepts presuppose that the judgment being thus protected is the agency's own legitimate judgment. Where pressures from Congressional sources have, in the words of D. C. Federation v. Volpe, "intruded into the calculus of considerations on which the Secretary's decision was based,” then the resulting judgement is unlawful ab initio and not entitled to the sanctuary accorded untainted agency judgments. [408 F.
Supp. at 306–07.) See also Center on Corporate Responsibility, Inc. v. Shultz, 368 F. Supp. 863 (D.D.C. 1973) (“A showing of political influence renders the Service's ruling null and void. It is outside the law").
The Congressional intervention and Defendants' responsiveness to it are clear on this record. Concern over Congressional criticism is not a proper basis for de facto debarment. Congressional oversight is an important Governmental process, but it may not properly invade administrative determinations such as this, particulary where liberty interests are at stake and due process is required. (Id. at 1155-1157]
Finally, Judge Richey found that Congressional interference with the administrative process continued on through the debarment proceedings themselves, thus rendering those proceedings null and void. In fact, the court found that Congressional intervention actually intensified after the commencement of the formal debarment proceedings. In this regard, the court made the following findings of fact:
On January 12, 1982, subsequent to the institution of this case and the commencement of debarment proceedings by JAG against Kiewit, Senator Levin wrote the Secretary of the Army asking further questions about the river bank contractors, and asking, with specific reference to Kiewit, the following:
I have just received word that at least one of the firms, Peter Kiewit Sons' Company, recently received notice of proposed debarment, from the Office of Judge Advocate General, and that the firm has participated in an administrative hearing concerning the proposed debarment. Why was I not informed of this new development?
(3) With respect to Peter Kiewit Sons' Company,
performing the work on said contracts?
Furthermore, in that same letter, Senator Levin ques-
I also recently received word that the Judge Ad-
Senator Levin also sent a letter to the Deputy Secretary
ment of Defense had not informed him of the proceedings with respect to Kiewit and enclosing a copy of his letter of the same day to Secretary of the Army. (Letter dated January 12, 1982, from Senator Levin to The Honorable Frank C. Carlucci, Deputy Secretary of Defense).
At about the same time as the January 12, 1982, letters from Senator Levin, Mr. Edelman received a telephone call from one of Senator Levin's staff members, who requested that Mr. Edelman meet with Senator Levin. Mr. Edelman thereafter asked the Deputy Judge Advocate General, Major General Overholt, to attend the meeting with him. Subsequently, the Assistant Secretary of the Army for Civil Works, Mr. Gianelli, also asked if he could go to the meeting. (Testimony of Lester Edelman).
The meeting with the Senator took place on January 25, 1982, one week before the hearing on the merits in this matter and while the JAG was considering whether to negotiate with Kiewit (pursuant to this Court's consent order of January 18, 1982). This is indicated in the Secretary of the Army's response to the Senator's August 12, 1982 questions with respect to Kiewit and others, in which the Secretary of the Army stated:
Later today the Assistant Secretary of the Army for Civil Works, Mr. William Gianelli, will be visiting with you to discuss this matter. He
plans to cover the questions raised in your letter. (Letter dated January 25, 1982, from the Secretary of the Army, John 0. Marsh, Jr., to The Honorable Cari M. Levin).
At the meeting, on-going litigation in the United States District Court for the Eastern District of Louisiana, which involves the river bank contractors, including Kiewit, was discussed. Senator Levin or one of his staff inquired whether the Justice Department was giving the JAG adequate support in the proceeding before Judge Duplantier. (Testimony of Lester Edelman).
A letter from Mr. Carlucci to Senator Levin, dated January 28, 1982, describing the meeting, also indicates that the debarment proceedings and the present litigation were discussed:
It is my understanding that Secretary Marsh has responded to your questions and that, in addition, on Monday you met with Assistant Secretary of the Army for Civil Works, William R. Gianelli, Major General Overholt, Assistant Judge Advocate General, and Mr. Lester Edelman, Chief Counsel of the Corps of Engineers for further discussion of this matter. I believe they brought you up-to-date concerning the status of the proceedings and litigation in progress at the present time, and further, that the Judge Advocate General and the