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Chief Counsel of the Corps will keep you informed

on these proceedings. (Emphasis added.]
(Letter dated January 28, 1982, from the Deputy Secre-
tary of Defense to the Honorable Carl M. Levin). (Id. at

1151-1152) Having declared the administrative debarment proceedings void, the court itself reviewed the allegations against Kiewit and concluded that Kiewit was "presently responsible” and that accordingly Kiewit should not be debarred.

On April 23, 1982, the defendants filed a notice of appeal to the U.S. Court of Appeals for the District of Columbia Circuit. (No. 821461)

On August 9, 1982, the defendants filed their brief in the court of appeals. The brief focused not on the lower court's ruling with respect to the Barber's Point contract, but on the lower court's decision to cancel the administrative debarment proceedings and pass upon the merits of those proceedings. By so doing, said the defendants, Judge Richey improperly interfered with the administrative process and violated the exhaustion of remedies doctrine. Moreover, said the defendants, Judge Richey's findings and conclusions regarding Congressional interference were not supported by the record or by judicial precedents. The defendants argued that the lower court misinterpreted the holding in Pillsbury v. FTC, supra, where the court found that during a Congressional hearing the chairman of the Federal Trade Commission “ 'met a barrage of questioning ... challenging his view of the case pending before him, 354 F.2d at 955.” [Brief for Appellants, August 9, 1982, at 25] By contrast, said the defendants, Senator Levin's inquiries were never directed to the merits of Kiewit's debarment, but rather to the procedures and standards used in the debarment process. Furthermore, while the Pillsbury case involved direct contact between Members of Congress and the actual administrative decisionmakers, "nothing in the record in this case establishes any contact between Senator Levin and the decision-maker, Brigadier General Holdaway." [Id. at 30]

On August 13, 1982, the Senate Legal Counsel, on behalf of the Senate Committee on Governmental Affairs ("Committee"), filed an amicus curiae brief. The Committee took the position that there was no need for the lower court to consider the question of Congressional interference, “because the district court should have permitted the Army to complete its administrative proceeding.” (Brief for Amicus Curiae United States Senate Committee on Governmental Affairs, August 13, 1982, at 16] However, said the Committee, even if the court of appeals should find it necessary to review Senator Levin's actions, the court would find “no evidence ... that Senator Levin either intended to affect, or actually affected, any substantive decision by the Army in an adjudicatory proceeding." (Id.) The Committee explained:

[T]he district court's holding that the debarment proceeding was "unlawful ab initio" appears to rest chiefly on Senator Levin's communication to the Secretary of the Army on January 12, 1982, after the commencement of the

debarment proceedings. The Senator had heard that the Assistant Judge Advocate General was considering a settlement by which the riverbank contractors would be permitted to bid on, and to receive contracts for, government work outside the geographical area of their bid-rigging conspiracy. In a letter to Secretary Marsh on January 12, 1982, Senator Levin asked: "If so, would not that participation on Corps projects in other areas of the country jeopardize the integrity of the procurement process and run contrary to the Government's interest.” The Secretary did not respond to this question in his letter of January 25, 1982, and the Senator did not pursue it when he met with Army officials later that day. Even so, the court concluded that "[t]hese ex parte Congressional communications about the merits of a specific debarment proceeding violate ... due process .

(App. --). Amicus agrees that the determination whether to debar a contractor is, essentially, an adjudicatory decision. As a consequence, members of Congress do not enjoy the latitude they have in presenting their views to agencies "engaged in informal, general policy rulemaking . . Sierra Club v. Costle, 657 F.2d 298, 409 (D.C. Cir. 1981). Nevertheless, Senator Levin's question to the Secretary of the Army was a legitimate inquiry about an issue of general policy and did not detract from the fairness of the pending debarment proceeding.

First, Senator Levin communicated to the Secretary of the Army, not the Assistant Judge Advocate General for Civil Law. In his July 31, 1981 letter to the Secretary of Defense, Senator Levin had asked for a description of the chain of command in debarment proceedings (App. --). Secretary March, in his response of September 23, 1981, had provided an information paper which stated that it is "the Assistant Judge Advocate General who, pursuant to the Defense Acquisition Regulations, has the final decision-making responsibility on behalf of the Secretary of the Army” (App. --). By communicating with the Secretary of the Army Senator Levin ensured that he would not skew the impartiality of the officer with final adjudicatory responsibility. See Koniag, Inc. v. Andrus, 580 F.2d 601, (D.C. Cir.), cert. denied, 439 U.S. 1052 (1978) ("we think the Pillsbury decision is not controlling here because none of the persons called before the subcommittee was a decisionmaker in these cases.")

Second, the question to the Secretary concerned an issue of general policy, which in a related form, was the subject of legislative consideration. Senator Levin asked whether a geographically limited debarment would run counter to the government's interest. This presented an issue similar to the question whether a debarment by one agency should be applicable throughout the government. The issue underlying both questions is the scope of the debarment remedy. When Senator Levin propounded his question to the Secretary, the Senator had already sponsored an amendment to the Defense Authorization Act, and had recommended, through the report of the Subcommittee on Oversight of Government Management, administrative rules to provide for government-wide debarment. Given the similarity of the issues presented, Senator Levin did not ask the Secretary to "take into account 'considerations that Congress could not have intended to make relevant.'D.C. Federation of Civic Associations v. Volpe, 459 F.2d 1231, 1247 (D.C. Cir. 1971), cert. denied, 405 U.S. 1030 (1972).

Finally, the manner in which the Senator posed his question is significant. He did not "subject an administrator to a searching examination as to how and why he reached his decision ... and . . . criticize him for reaching the 'wrong' decision .The Pillsbury Company v. Federal Trade Commission, supra p. 17, 354 F.2d at 964. Neither did he threaten to, or have the ability to, withhold congressional appropriations, see D.C. Federation of Civic Associations v. Volpe, supra p. 22, 459 F.2d at 1245–46, or threaten any person's job, see Texas Medical Association v. Mathews, 408 F. Supp. 303, 309 (W.D. Texas 1976). His question was about "the Government's interest," and the Secretary chose not to respond. While "[w]ith regard to judicial decisionmaking, whether by court or agency, the appearance of bias or pressure may be no less objectionable than the reality," D.C. Federation of Civic Associations v. Volpe, supra p. 22, 459 F.2d at 1246-47, the Senator's mildly phrased inquiry in no way compromised even the appearance of the Secretary's impartiality. It certainly did not impinge on the impartiality, actual or perceived, of the Assistant Judge Advocate General for Civil Law. (Id. at

19-23] On October 4, 1982, Kiewit filed its appellate brief. In its brief, Kiewit rejected the notion that Judge Richey should not have decided the merits of the debarment. According to Kiewit, the debarment proceedings had been rendered "fundamentally defective" by Senator Levin's improper interference, and since there was “no practical way to cure the taint” Judge Richey had acted correctly in deciding the case himself.

Turning to the question of Congressional interference, Kiewit termed “preposterous” the argument that Senator Levin's communications were inoffensive. Senator Levin's “multiple, strident communications" clearly constituted a campaign to build pressure for its debarment, said Kiewit. As for the argument that Senator Levin had never contacted the actual administrative official charged with deciding the debarment case, Kiewit argued that the decisionmaker in this case (General Holdaway) was not an independent adjudicator, but rather a direct subordinate of those upon whom the congressional pressure was applied. Thus, according to Kiewit, the idea that General Holdaway was insulated from Senator Levin's communications was “far-fetched.”

On February 2, 1983, the case was argued before circuit judges Mikva, Bazelon, and Edwards.

Status—The case is pending in the U.S. Court of Appeals for the District of Columbia Circuit.

The complete text of the February 26, 1982 opinion of the district court is printed in the “Decisions” section of Court Proceedings and Actions of Vital Interest to the Congress, September 1, 1982. Municipal Electric Utilities Association of New York State C.

Reagan

Civil Action No. 83-0595 (D.D.C.) On March 1, 1983, the Municipal Electric Utilities Association of New York State ("MEUA") filed a complaint for declaratory and injunctive relief in the U.S. District Court for the District of Columbia against President Ronald Reagan, U.S. Senators Daniel Patrick Moynihan and Alfonse M. D'Amato of New York, U.S. Representatives Barber B. Conable, Jr., Jack F. Kemp, John J. LaFalce, and Henry J. Nowak of New York, the Federal Energy Regulatory Commission (“FERC”), the Chairman and four FERC Commissioners, and the legal assistant to the FERC Chairman. (Civil Action No. 83-0595] The complaint sought to: (1) prevent FERC “from using any decision other than the decision issued in Municipal Electric Utilities Association of New York State v. Power Authority of the State of New York, Op. No. 151, 21 FERC | 61,021 (1982) ("MEUA v. PÁSNY'); (2) prevent FERC from denying rehearing in MEUA v. PASNY; and (3) prevent the individual defendants "from making future ex parte contacts relating to MEUA v. PASNY. [Complaint for Declaratory and Injunctive Relief, March 1, 1983, 13]

In sum, the complaint alleged that there had been ex parte contacts by Members of Congress and the President with "decision makers" at FERC in violation of the Administrative Procedures Act (“APA”), 5 U.S.C. § 557(d)(1), and the Fifth Amendment to the U.S. Constitution. According to the complaint, on October 13, 1982, the FERC Commissioners approved an order in the MEUA v. PASNY administrative proceeding, apparently favoring the plaintiffs. (The administrative proceeding involved a dispute as to whether PASNY was providing a proper percentage of power generated at a hydroelectric project to preference customers, represented by MEUA.) On November 30, 1982, FERC granted a rehearing in the case, the complaint stated, but took no further formal action subsequent to that date. On December 27, 1982, the complaint continued, Representatives Kemp and Conable wrote President Reagan urging a reversal of the October 13, 1982 decision in MEUA v. PASNY. A copy of the letter, the complaint said, was sent to the FERC Chairman who later responded to the Members, noting that he would “personally . . . review the Commission's action on rehearing.” (Id., 1 33] The complaint stated that all the Congressional defendants also participated in a press conference on February 16, 1983, called to express opposition to the Commission's initial decision in the MEUA v. PASNY case. At the press conference, the letter of the FERC Chairman to Representatives Kemp and Conable was released, the complaint said.

The complaint asserted that none of the relevant letters were served on the parties in MEUA v. PASNY (Id., 1 35), nor did they

appear on the docket sheet (Id., 1 36), or in the public files (Id., 1 37). Therefore, the complaint stated, the actions of the Congressional defendants constituted "political interference in an adjudicatory proceeding before an administrative agency” in violation of the APA, and deprived MEUA and the other parties in the administrative proceeding of due process of law as guaranteed by the Fifth Amendment. [Id., 1 39]

In addition to asking the court to declare the alleged ex parte communications and political interference unlawful, the plaintiffs sought: (1) an injunction preventing further interference; and (2) an expeditious denial of the petitions for rehearing in MEUA v. PASNY and the institution of the October 13, 1982 FERC order.

Status-The case is pending in the U.S. Court for the District of Columbia.

XIII. Balancing the Right To Petition and Communicate with

Congress With the Law of Defamation Smith v. McDonald

Civil Action No. C-81-475-G (M.D.N.C.) On July 24, 1981, David I. Smith, a North Carolina attorney, filed a libel action in the North Carolina General Court of Justice, Superior Division of Alamance County [No. 81 CvS 1088] against Robert McDonald. The plaintiff alleged that, subsequent to the 1980 Presidential election, he, individually and through numerous friends and associates, applied for the position of United States Attorney for the Middle District of North Carolina. According to the complaint, the plaintiff was being "seriously considered” for the position prior to the defendant sending two letters to Ronald Reagan (on December 1, 1980 and February 13, 1981) which, inter alia, accused Mr. Smith of: violating the civil rights of and unlawfully imprisoning various individuals while he was a Superior Court judge; criminal contempt; fraud, extortion, blackmail, and perjury; professional malfeasance; and numerous ethical violations. Copies of either or both of these libelous letters, the complaint asserted, were additionally provided to Presidential Counselor Edwin Meese, FBI Director William Webster, and the offices of several Members of the United States Congress, including Senator Jesse Helms and Representatives Jack Kemp, Barry Goldwater Jr., and W. E. Johnston. For this defamation the complaint sought $500,000 in compensatory damages and the same amount in punitive damages.

On August 25, 1981, the defendant filed a petition for removal of the action from the state court to the U.S. District Court for the Middle District of North Carolina. (No. C-81-475-G] The defendant contended that, as of the date the complaint was filed, he was a citizen of the state of Virginia, and the suit was therefore between citizens of different states. Accordingly, he argued, by virtue of 28 U.S.C. § 1332, the U.S. District Court had original jurisdiction over the case.

On September 24, 1981, the defendant filed a motion to dismiss the action and an accompanying memorandum which asserted that the complaint on its face affirmatively established that the libelous publication, if any, by the defendant occurred during the course of

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