« AnteriorContinuar »
relating to the promulgation of new source performance standards under
the Clean Air Act governing emissions from coal burning power plants.
At 1ssue was the matter of two meetings with Senator Byrd.
upon D.C. Federation v.
Volpe, supra, the court concluded that no
improper congressional pressure was brought to bear on agency decision
In the case before us, there is no persuasive
As an aside, it 18 also worth noting that the court concluded that
allegations of other communcations following the rulemaking comment
40/ Id., at 409-410.
period but before final agency decision were not unlawful. . Similarly,
the Court found that communications with the President and White House
staff were not proscribed by law.
41/ In Texas 01l and Gas Corporation v. Watt, the U.S. Court of Appeals
for the District of Columbia was again confronted with allegation of 1m
proper political pressure from several senators in connection with de
cisions of the Secretary of Interior to cancel certain oil and gas leases.
Although the court concluded that there was a separate ground for setting
aside the Secretary's decisions and that there was therfore no need to
address the allegations of improper congressional pressure, the court
did make the following observation:
We note, however, that while the frequent and forceful communications by several Senators amounted to pressure" in a general sense and indeed my be regarded as "regrettable", they did not contain anything 11ke the sort of threats that this court has suggested could serve as evidence of improper motivation for an agency's action. 42/
Io one of the most recent cases lovolving improper congressional
influence of agency proceedings, the U.S. Court of Appeals for the
District of Columbia concluded that insufficient congressional inter
ference resulted from the conduct of congressional investigations and
status inquiries to the agency for the purposes of allowing judicial
action prior to exhaustion and finality of agency decisions.
41/ 683 F.2d427 (D.C. Cir. 1982).
42/ Id., at 434.
43/ Kiewit Sons' Corp v. U.S. Army Corps of Engineers, the court found
that the conduct of prior congressional investigations and recommenda
tions and status inquiries contemporaneous with an Army contractor de
barment proceeding did not evidence "actual or apparent congressional
It was never shown that Senator Levin contacted
The Court therefore found that the interruption of the administra
tive proceeding prior to its conclusion was unwarranted by the charge
of congressional interference.
Even where decision making alternatives are within the discretion
of the agency, the question of improper congressional pressure can be
come an issue with respect to the propriety of agency action. In
45/ Standard Oil Company of California v. Federal Trade Commission
question was raised as to whether comunications from a congressional
office to the FTC in connection a pending FTC investigation had re
sulted in the issuance of a complaint without proper consideration and
insted because the agency had been "goaded into action by outside in
The court found that if the Commission had not acted
to the stautory criteria and had issued the complaint" solely
because of outside pressure" that the Commission had violated the Fedral
Trade Commission Act.
43/ 714 F.2d 163 (D.C. Cir. 1983)
44/ Id., at 170.
45/ 596 F.2d 1381 (9th Cir. 1979).
46/ The Third circuit held in SEC v. Wheeling-Pittsburg Corp.
it would not enforce an administrative subpoena in an investigation
undertaken because of congressional influence.
The Court made this
The duty of the SEC, therefore, is not to
Wheeling-Pittsburg involved extensive communications between a Senate
office and the Commission staff over the course of several months.
However, not every Congressional investigation which may improperly
influence and agency proceeding is prejudicial. For example, in American
48/ Public Gas Association v. Federal Power Commission, the court reviewd
allegations of congressional influence in connection with an FPC rate
proceeding as the consequence of questioning before an oversight sub
committee of the House Interstate and Foreign Commrce Committee.
the FPC had already concluded one proceeding, which was the subject of
Congressional questioning concerning the legal rationale.
tion of congressional influence involved a subsequent modification of
the order of the first proceeding. The court concluded that the parties
to the second proceeding had waived their opportunity to object to con
46/ 648 F.2d 118 (3d Cir. 1981).
471 Id., at 126.
48/ 567 F.2d 1016 (D.C. Cir. 1977). .
gressional influence by failing to object prior to the rehearing by the.
In a similar vein, the decision in Gulf Oil corp. v. Federal Power
49/ Commission held that questioning as to the choice of administrative
alternatives by Subcommittees of the House Commerce Committee was not
49/ 563 F.2d 588 (3d Cir. 1977), cert. denied., 435 U.S. 911 (1978).