673 F.2d at 451, and thus presented clear situations of congressional intrusion into an executive branch function. This case, on the other hand, involves a legislative review provision in an appropriations act that would require committee approval of an executive branch reorganization before appropriated funds could be expended. At least to this extent, the present case requires a different analysis of the constitutional interplay between the two branches.

We write separately to underscore our concern that language in the panel's opinion not be read to foreclose careful consideration in subsequent cases of historical experience, practical working relationships, and the deference due Congress when it establishes its own procedures under the Constitution. For example, we note that both the Reorganization Act of 1977, 5 U.S.C. $ 906 (Supp. V 1981), and the Congressional Budget and Impoundment Act of 1974, 31 U.S.C. § 1403 (1976), include provisions permitting either house of Congress to disapprove of proposed executive actions. We are convinced that these and similar statutes cannot simply be invalidated under the reasoning of our prior opinions without detailed examination of how such arrangements operate and what they are designed to accomplish. Cf. Consumer Energy, 673 F.2d at 457-60 (recognizing possible exceptions, including presidential plans for executive branch reorganization, to the court's holding); Atkins v. United States, 214 Ct.Cl. 186, 556 F.2d 1028 (1977) (per curiam) (upholding legislative review provision in Federal Salary Act of 1967), cert. denied, 434 U.S. 1009, 98 S.Ct. 718, 54 L.Ed.2d 751 (1978). Various factors—whether related to the subject area covered by the statute (309) or the particular procedures mandated-remain to be considered in the specific context of future cases. Courts should examine closely the constitutional issues raised by each legislative review provision before invalidating on a pro forma basis all statutes that provide for after-the-fact congressional oversight.

Given that the expedited opinion in the present case was released only one day after oral argument, and was based on briefs that barely addressed potential differences among relevant statutes, such an in-depth examination has not yet occurred. The emergency that gave rise to this panel opinion should neither overwhelm nor pretermit more deliberation in the future before defining and taking sides on so fundamental a consitutional clash between branches of government. We anticipate that this court will move in a measured fashion in its treatment of this explosive and far-reaching controversy between Congress and the executive branch.





Civil Action No. 81-2073


On October 6, 1978, Congress enacted the International Development and Food Assistance Act, which in part called for the establishment of a new personnel system in the Agency for International Development (AID). Pub. Law No. 95-424, 92 Stat. 937 et seq. Section 401 of the Act-commonly referred to as the “Obey Amendment” provides that the President shall submit to Congress regulations establishing a unified personnel system for all employees of AID. 22 U.S.C. $ 2385a(a). The Act further provides that such regulations shall not become effective if, during a 90-day period, either House of Congress adopts a resolution disapproving of the regulations. 22 U.S.C. § 2385a(b). Pursuant to the statutory directive, the President submitted regulations to Congress-known as the "Obey regulations” 2—which became effective on October 1, 1979. In August, 1981, however, AID published in the Federal Reg. ister a final rule amending the Obey regulations.3 46 Fed. Reg. 42841 (1981). These amendments to the Obey regulations are challenged in this action by plaintiff, which is the exclusive bargaining representative for Foreign Service employees in the AID.

Plaintiff attacks the 1981 amendments of the Obey regulations on several grounds. Initially, it is argued that the amendments are invalid because they had not been submitted to Congress in accordance with the legislative veto process provided for in the Obey Amendment. However, as plaintiff now concedes, Congress' attempted retention of veto power over regulations implementing the Obey Amendment is unconstitutional under the decisions of the Court of Appeals for the Circuit in Consumers Union of U.S., Inc. v. FTC, No. 82-1737 (D.C. Cir. October 22, 1982) (en banc), and Consumers Energy Council of America v. FERC, 673 F.2d 425 (D.C. Cir. 1982.4

* This section-added to the Act by a floor amendment proposed by Representative David Obey-was aimed at integrating AID's Washington personnel, which had previously been divided between the General Schedule and Foreign Service systems, into a new personnel structure based primarily upon the Foreign Service system. H.R. Rep. No. 95–1545, 95th Cong., 2d Sess. 42 (1978).

2 The Obey regulations extended the Foreign Service personnel system to employees of AID who are responsible for planning AID's overseas development programs and activities 22 C.F.R. § 220.02. AID positions were to be designated as Foreign Service positions, unless they are primarily clerical or administrative or unless they require continuous domestic assignment. 22 C.F.R. $ 220.04(b). General Schedule employees who occupied Foreign Service positions were given the right to retain their jobs; however, once such positions are vacated, they may only be occupied by Foreign Service appointees, unless the number of non-Foreign Service employees filling Foreign Service positions in AID's Washington office does not exceed ten percent of such positions. 22 C.F.R. § 220.04(0/1).

3 The 1981 amendments to the regulations added two more exceptions to the general rule that a vacant Foreign Service position may be filled only by a Foreign Service employee. The first exception provides that, in order to avoid a reduction in force, the director of the Office of Personnel Management, AID, is authorized to assign a General Schedule employee to a vacant position which has been designated as a Foreign Service position. 22 C.F.R. $220.04(cX2). The second exception provides that up to fifteen Foreign Service designated positions may be filled on a time limited appointment basis by non-Foreign Service personnel, if the Administrator of AID grants his approval on a case-by-case basis. 22 C.F.R. $ 220.04(cX3).

Therefore, assuming, as both parties do, that the Obey Amendment's directive to the President to issue regulations is severable from the legislative veto provisions, see Consumers Energy Council of America v. FERC, 673 F.2d at 440-45, the only questions remaining are whether AID has authority to modify its regulations and whether the 1981 amendments are arbitrary or capricious.

As to the first question, while the legislative history of the Obey Amendment demonstrates that Congress deleted language contained in an earlier version of the bill that would have provided specifically that any subsequent regulations shall have the force and effect of law, there is no indication why this language was deleted. See H.R. Rep. No. 95-1545, 95th Cong., 2d Sess. 42 (1978). Since the Obey Amendment does not explicitly strip away AID's power to adopt changes in its personnel system, and because the legislative history is ambiguous, there is not a sufficient basis for denying to AID the traditional authority possessed by an agency to modify its own regulations. See, e.g., Greater Boston Television Corp. v. FCC, 444 F.2d 841, 852 (D.C. Cir. 1971); City of Chicago v. Federal Power Commission, 385 F.2d 629, 637 (D.C. Cir. 1967),5

On the final issue-as to whether the 1981 amendments of the Obey regulations are arbitrary or capricious-plaintiff has not met its heavy burden of demonstrating that the amendments are inconsistent with the statutes at issue. The amendments create two limited exceptions to the general rule that AID positions should be filled by Foreign Service employees, just as the original regulations provided for exceptions to the general rule. See notes 2, 3 supra. One exception provides that positions designated as being part of the Foreign Service may be occupied by General Schedule employees in order to avoid a reduction in force; and the other exception provides that up to 15 out of the over 700 Foreign Service-designated positions may be filled on a time-limited basis by non-Foreign Service employees. Both exceptions cannot appropriately be judged as being arbitrary or inconsistent with the Obey Amendment or other legislation. See section 502(b) of the Foreign Service Act of 1980, 22 U.S.C. $ 3901 et seq. (Foreign Service positions "normally" shall be filled by members of the Foreign Service but may be filled by the assignment for specific tours of duty of employees of other agencies). Judgment will be entered accordingly.


United States District Judge. November 30, 1982.

* This is subject, of course, to any Supreme Court decisions on these and other cases involving the legislative veto.

s Plaintiff also argues that $ 222.01(b) of the original Obey regulations prohibits the Administrator of AID from promulgating new regulations that modify the original regulations. This argument, too, is not well taken. Contrary to plaintiff's contention, this section does not prohibit amendments to the regulations themselves; it merely proscribes the promulgation of implementing regulations or personnel practices that are inconsistent with the agency's underlying regulations. See 44 Fed. Reg. 26729.

6 The original Obey regulations were promulgated pursuant to the Obey Amendment and 8 625(b) of the Foreign Assistance Act of 1961. 22 U.S.C. § 2384.







Civil Action No. N-79-2386 NORTHROP, Senior Judge.

Filed: December 22, 1982 Wilson K. Barnes, and Little, Hall & Steinmann, P.A., of Baltimore, Maryland, and Dean E. Sharp, of Washington, D.C., for plaintiffs.

Alan I. Baron, of Baltimore, Maryland, and Ellen Scalettar, and Finley, Kumble, Wagner, Heine, Underberg and Casey, of Washington, D.C., for defendants Americans Broadcasting Co., Inc. and Margaret Osmer.

Stanley M. Brand, Steven R. Ross and Michael L. Murray, Office of the Clerk, United States House of Representatives, of Washington, D.C. for defendants Miss Kathleen T. Gardner, Mrs. Lillian N. Teitelbaum, David L. Holton and Mrs. Isaac (Betty) Hamburger.

MEMORANDUM Plaintiff, George H. Benford, instituted the present action against American Broadcasting Companies, Inc., (ABC), Margaret Osmer,* an ABC employee, David L. Holton, Chief Investigator for the Select Committee on Aging, United States House of Representatives (Select Committee), Kathleen T. Gardner, professional staff member of the Select Committee, and Betty Hamburger and Lillian M. Teitelbaum, both special senior citizen investigators of the Select Committee. Defendants Holton, Gardner, Hamburger, and Teitelbaum will hereinafter be referred to collectively as the “congressional defendants”.** As the complaint is the same as that outlined in detail in Benford v. American Broadcasting Companies, Inc., 502 F. Supp. 1148 (D. Md. 1980), the facts need not be repeated exhaustively here.

Briefly, the plaintiff is an insurance salesman who was surreptitiously filmed by ABC while making his standard cancer insurance sales presentation to the congressional defendants, who were posing as prospective purchasers. Portions of that taped meeting were broadcast on the ABC Nightly News, and are alleged to have caused the plaintiff grave financial and other injury. The plaintiff claimed the taping and broadcasting subjects the defendants to liability under the Maryland Wiretapping and Electronic Surveillance Act, Md. Cts. & Jud. Proc. Code Ann. $$ 10-401, et seq., (hereinafter sometimes referred to as "The Maryland Act"), the Fourth Amendment of the Constitution, Title III of the Omnibus Crime Control and Safe Streets Act, 18 U.S.C. $$ 2510, et seq., (hereinafter sometimes referred to as the “Federal Eavesdropping Statute”), and the common law torts of civil conspiracy, malicious interference with business relations, and invasion of privacy.

*Currently Margaret Osmer-McQuade.

**On information and belief, the plaintiff represents to this Court that of these congressional defendants, only defendant Holton continues to regularly perform Congressional/public duties.

The congressional defendants responded to these charges by filing a motion to dismiss, or alternatively for summary judgment, as to each cause of action. Their primary contentions were that their conduct was absolutely protected by the Speech or Debate Clause of the Constitution, Art. I. 86, cl. 1, and/or the common law doctrine of official immunity. This Court considered those arguments and, on November 14, 1980, held that the congressional defendants are not absolutely immune under either the Speech or Debate Clause or the official immunity doctrine, but suggested that upon a proper showing, the congressional defendants would be entitled to assert a defense of qualified immunity as defined by Supreme Court in Butzv. Economou, 438 U.S. 478, 98 S.Ct. 2894, 57 L.Ed. 2d 895 (1978),. Bedford v. American Broadcasting Companies, Inc., 102 F.Supp. 1148, 1159 (D.Md. 1980). A decision as to the viability of the qualified immunity defense was not then reached.

Defendants ABC and Osmer then filed motions to dismiss Counts II and IV of plaintiff's amended complaint. Count II alleged defendants violated plaintiff's Fourth Amendment rights by conducting an unconstitutional search and seizure. Count IV charged the defendants with violating the Federal Eavesdropping Statute. This Court agreed with the defendants ABC and Osmer as to the nonviability of Count II and on November 24, 1980, it was dismissed. Because a genuine issue of material fact remained which would impact on the viability of Count IV, this Court refused to dismiss that count. Bedford v. American Broadcasting Companies, Inc., 502 F.Supp. 1159 (D.Md. 1980). On January 14, 1981, in response to the congressional defendants renewed motion to dismiss, filed November 25, 1980, this Court dismissed Count II of plaintiff's complaint as it applied to the congressional defendants as well.

On July 16, 1982, this Court entered an order staying further discovery in this case with respect to the congressional defendants, pending the Court's consideration of the possible impact of Nixon v. Fitzgerald, 102 S.Ct. 2690 (1982), and Harolow v. Fitzgerald, 102 S.Ct. 2727 (1982), on the qualified immunity issue. Written discovery not involving the congressional defendants was not affected by the stay. The parties have since filed exhaustive memoranda outlining their respective positions.

Predictably, the plaintiff and the congressional defendants view Harlow from different perspectives. The congressional defendants argue that as a result of these decisions, they are now entitled to summary judgment for all remaining counts on the basis of qualified immunity. The plaintiff, on the other hand, contends defendants have failed to meet even the threshhold requirements necessary to bring Harlow into play. Furthermore, even assuming the congressional defendants met their threshhold burden, the plaintiff argues the congressional defendants are nevertheless not entitled to qualified immunity as they have not satisfied the Harlow stand

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