relating to the promulgation of new source performance standards under In the case before us, there is no persuasive As an aside, it is 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 Oil and Gas Corporation v. Watt, the U.S. Court of Appeals for the District of Columbia was again confronted with allegation of improper political pressure from several senators in connection with decisions 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 like the sort of threats that this court has suggested could serve as evidence of improper motivation for an agency's action. 42/ In one of the most recent cases involving improper congressional influence of agency proceedings, the U.S. Court of Appeals for the District of Columbia concluded that insufficient congressional interference 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. In Peter 41/ 683 F.2d 427 (D.C. Cir. 1982). 42/ Id., at 434. Kiewit Sons' Corp v. U.S. Army Corps of Engineers, 43/ the court found that the conduct of prior congressional investigations and recommendations and status inquiries contemporaneous with an Army contractor debarment proceeding did not evidence "actual or apparent congressional interference." It was never shown that Senator Levin contacted The Court therefore found that the interruption of the administrative proceeding prior to its conclusion was unwarranted by the charge of congressional interference. 451 Even where decision making alternatives are within the discretion of the agency, the question of improper congressional pressure can become an issue with respect to the propriety of agency action. In Standard Oil Company of California v. Federal Trade Commission the question was raised as to whether communications from a congressional office to the FTC in connection a pending FTC investigation had resulted in the issuance of a complaint without proper consideration and insted because the agency had been "goaded into action by outside influences." The court found that if the Commission had not acted pursuant 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. that it would not enforce an administrative subpoena in an investigation undertaken because of congressional influence. The Court made this observation: 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 subcommittee of the House Interstate and Foreign Commrce Committee. There the FPC had already concluded one proceeding, which was the subject of Congressional questioning concerning the legal rationale. The allegation 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 gressional influence by failing to object prior to the rehearing by the. Commission. In a similar vein, the decision in Gulf Oil corp. v. Federal Power 491 Commission held that questioning as to the choice of administrative alternatives by Subcommittees of the House Commerce Committee was not undue influence. 49/ 563 F.2d 588 (3d Cir. 1977), cert. denied., 435 U.S. 911 (1978). |