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1. Whether a District Court order modifying a protective order under Federal Civil Rule 26(c)(7) to permit the custodian of privileged documents produced during discovery to comply with a congressional subcommittee's subpoena is a final decision from which an appeal lies under 28 U.S.C $ 1291 and the "Collateral Order" doctrine of Cohen v. Beneficial Industrial Loan Corp., 337 U.S. 541 (1949), so that

(a) The modification order is immediately appealable by the party whose documents and privilege are at stake, but who otherwise would have no opportunity for appellate review of its claim; and

(b) The modification order is a "judgment"
within the meaning of Federal Civil Rule 54(a),
and the automatic stay provision in Rule 62(a)
applies to preclude enforcement of the modifica-
tion order and the Subcommittee's subpoena for

10 days.
2. Whether the Circuit Court, having granted mandamus
review of the merits and found clear error in the modifica-
tion of the protective order, should have ordered the Sub-
committee to return the privileged documents and protect-
ed their contents against disclosure, using either its con-
tempt power to remedy a violation of the protective order
or its residual power under the All Writs Statute (28
U.S.C. § 1651(a)) to preserve the integrity of its appellate
jurisdiction and IBP's right to effective appellate review of
the modification order.

3. Whether a congressional subcommittee may subpoena
privileged documents in the custody of a party to federal
court litigation which are subject to a protective order
without obtaining Congressional approval and filing a
formal intervention so that the terms and conditions of its

access to the documents may be controlled by the Court. [Petition for Writ of Certiorari at 2-3]

Neal Smith, chairman of the subcommittee was named as respondent on the petition for writ of certiorari.

The motion for a preliminary injunction was denied on February 26, 1979.

On March 8, 1979, District Court Judge McManus filed a petition for rehearing and reconsideration with the Court of Appeals. Petitioner argued that the partial lifting of the protective order was not a clear abuse of discretion. He also asserted that mandamus does not lie for the ordering of a useless and futile act, and claimed that issuance of the writ had no appreciable effect on the rights of the parties before the court.

On March 23, 1979, Chairman Smith filed a brief in opposition to the petition for writ of certiorari. In his brief the respondent presented the following questions:

1. Whether this appeal should be dismissed because the respondent has been named here as a party for the first time.

2. Whether this court has jurisdiction to grant the relief sought by IBP because the Speech or Debate Clause protects these investigative activities of a Congressman and a congressional committee.

3. Whether the opinion of the Eighth Circuit either sanctioned procedures which violated due process or created a conflict in rulings among the Circuits.

4. Whether the trial court committed a clear abuse of discretion in modifying the protective order. [Respondent's Brief at 2]

On April 16, 1979, IBP's petition for writ of certiorari was denied by the Supreme Court. [No. 78-1281]

On August 13, 1979, the Circuit Court denied Judge McManus' petition for rehearing. However, the Circuit Court agreed with Judge McManus that issuance of the writ of mandamus had not altered the status quo of the parties. The court therefore modified its opinion of February 7, 1979, to the extent that formal issuance of the writ was denied.

Status.-The case is pending before the U.S. District Court for the Northern District of Iowa.

The order of the District Court of February 13, 1978 is printed in the "Decisions" section of the report Court Proceedings and Actions of Vital Interest to the Congress, current to December 31, 1978.

The order of the District Court of November 24, 1978 is printed in the “Decisions” of the report Court Proceedings and Actions of Vital Interest to the Congress, current to December 31, 1978.

The per curiam order of the Court of Appeals of December 14, 1978 is printed in the “Decisions” section of the report Court Proceedings and Actions of Vital Interest to the Congress, current to December 31, 1978.

The complete text of the opinion of the Court of Appeals is printed in the “Decisions” section of the report of Court Proceedings and Actions of Vital Interest to the Congress, March 31, 1979.

Koniag, Inc. v. Andrus (formerly Kleppe)

No. 76-1325 (D.C. Cir.)

These actions were filed in the United States District Court for the District of Columbia by 11 Alaskan communities challenging decisions of the Secretary of the Interior which found each of them ineligible to receive land and money under the Alaska Native Claims Settlement Act (hereinafter “Claims Settlement Act"), 43 U.S.C. § 1601 et seq. (Supp. III, 1973.) [Civil Action Nos. 74-1061, 741134, 74-1790 to 74-1795, 75-452, 75-485, and 75-1097 (D.D.C.).]

The cases were consolidated in the District Court for resolution of those questions which plaintiffs and the defendant agreed could be adequately presented on cross-motions for summary judgment.

The Claims Settlement Act sought to accomplish a fair, and rapid settlement of all aboriginal claims by Natives and Native groups of Alaska without litigation. Under it, 40 million acres of land and $962.2 million were to be disbursed to regional corporations and villages that qualified. The Secretary of the Interior was given the responsibility of administering the program outlined in the legislation. Among his responsibilities was the final determination of which applicants were "villages", as defined by the Claims Settlement Act, which were eligible for participation in the distribution. The Secretary's regulations required the Juneau, Alaska, Area Office of the Bureau of Indian Affairs to make these determinations not later than December 19, 1973. Prior to reaching a decision, the Area Office was required to publish proposed decisions, which became final unless appealed within 30 days. Upon receipt of a protest the Area Director was to consider and evaluate it and render a decision within 30 days. These decisions then became final unless an "aggrieved party" appealed to the Secretary of the Interior by filing a notice with the Alaska Native Claims Appeal Board (hereinafter “Board”). The Secretary of the Interior reserved to himself the right to make the ultimate decision in each

case.

If a case was appealed, however, a record was usually built by assigning the case to an administrative law judge from Interior, who would hear the case de novo in an adversary proceeding. At these hearings the “aggrieved parties” were usually represented by an attorney from the Interior Department's Solicitor's Office. The administrative law judge would hear evidence and make his decision in camera. The decision was forwarded in camera to the Board without being served on the communities. The Board made a formal decision and submitted it to the Secretary of the Interior in camera. The Secretary then consulted with his staff and reached a final decision. Only then were the communities notified as to what decisions had been reached.

In these cases the Area Director issued decisions determining that the 11 communities were "villages" eligible for benefits under the Claims Settlement Act. The Fish and Wildlife Service, the Forest Service, or the State of Alaska, and certain environmental groups appealed one or another of the 11 decisions. After full de novo proceedings before the administrative law judge and the Board, the Secretary's decision was that three of the communities were of one class of "villages" but not of another, thus reducing the benefits to which the communities believed they were entitled. The other eight plaintiffs were determined not to be "villages” as defined by the Claiins Settlement Act. The 11 communities brought actions to obtain judicial relief from the Secretary's decisions.

While the village claims were being considered by the Secretary, the Subcommittee on Fisheries and Wildlife Conservation and the Environment of the House Committee on Merchant Marine and Fisheries, chaired by Representative John Dingell, held hearings which were described as oversight hearings on the implementation of the Claims Settlement Act by the Department of the Interior.

Plaintiffs argued that these hearings adversely affected their position on the issues in dispute and improperly influenced the ultimate decisions by the Secretary. In particular, plaintiffs noted the appearance of Kenneth Brown, "who served as legislative counsel and chairman of the Alaska Task Force Working Committee of the Department of the Interior and was one of the Secretary's two principal advisers who reviewed the cases with him at the time he made his decision in the plaintiffs' case.” (Koniag, Inc. v. Kleppe, 405 F. Supp. 1360, 1371 (D.D.C. 1975).]

In a memorandum and order handed down on November 14, 1975, United States District Judge Gerhard A. Gesell ruled, inter alia, that the Dingell hearings were an impermissible interference with the administrative process, and that the Area Director's decisions designating plaintiffs as eligible villages should be reinstated since they were the last "untainted” decisions made before December 19, 1973, the date by which the Claims Settlement Act required decisions to be made.

The stated purpose of the hearings, the court noted, was to present a forum for discussing the implementation of the Claims Settlement Act. But, said the court:

in fact the Committee, through its chairman and staff members, probed deeply into details of contested cases then under consideration indicating that there was "more than meets the eye." The entire rule-making process was re-examined, travel vouchers and other information were sought to probe the adequacy of the investigations made, all papers in the pending proceedings were demanded, the accuracy of data and procedures followed was questioned, and constantly the Committee interjected itself into aspects of the decision-making process. While representatives of Interior indicated they were very concerned about prejudice to the quasi-judicial administrative process, and the chair on several occasions denied that it was his purpose to pressure the agencies involved, Representative Dingell stated that he was obliged to confess that he had doubts as to whether the law was being properly carried out. On key issues now in dispute before the court, representatives of the Government were obliged to take positions as to the interpretation of the Act. A strenuous effort was made by the chairman to encourage protest and appeals, coupled with comments indicating his clear impression that all that could be done was not being done and that some of the results being reached were contrary to congressional intent. It was following this experience that settlements arranged with two of the plaintiffs were abandoned by the Department of the Interior because of the hearings. It should also be noted again that when the Secretary reached the crucial point of making his personal decision on the merits of cases that were investigated and criticized by the Committee he had as one of his two immediate personal advisors Mr. Brown, who had been subjected to the intervention and subtle harassment of the Legislative Branch.

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The Dingell hearings constituted an impermissible congressional interference with the administrative process. This situtation presents a disturbing conflict between the Congress and the Executive Branch, and it is the responsibility of the Judiciary in this instance to prevent an impermissible intrusion by one branch into the domain of the other. It is no less the responsibility of the Court to protect the procedural due process rights of litigants and "to pre

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serve the integrity of the judicial aspect of the administra-
tive process.” [Pillsbury Co. v. Federal Trade Commission,
354 F.2d 952, 964 (5th Cir. 1966).] It cannot be gainsaid
that the “appearance of impartiality—the sine qua non of
American judicial justice” was sacrificed in this in-
stance. Id. "[P]rivate litigants [have a right] to a fair trial
and, equally important, [a] right to the appearance of im-
partiality, which cannot be maintained unless those who
exercise the judicial function are free from powerful exter-
nal influences," id. The appearance of justice was
breached and while the complaining party is not required
to shoulder the virtually impossible burden of proving
whether and in what way the outcome before the agency
was actually influenced by the congressional intrusion, the
evidence before the court indicates that the Dingell hear-
ings indeed had a direct and demonstrable effect at least
on the cases of the two plaintiffs with whom the settle-
ment with the Interior Department was abandoned] [405

F. Supp. at 1371-1372.]
The Department of the Interior appealed each of the cases to the
Court of Appeals and asked that the cases be consolidated for the
purpose of appeal. The motion to consolidate was granted.

On February 23, 1977, the new Secretary of the Interior, Cecil D. Andrus, was substituted in place of Thomas S. Kleppe as a party to these appeals.

The case was argued on March 24, 1977.

The U.S. Court of Appeals for the District of Columbia Circuit issued an opinion on April 28, 1978, affirming in part and reversing in part the ruling of the District Court. In the opinion, filed for the court by Judge Robb, the Circuit Court agreed with the District Court that the appellate procedure established for the determination of appeals made under the Claims Settlement Act did not meet the requirements of due process. The Circuit Court concluded that the original procedure established by the Secretary should have permitted the parties to take exceptions to the recommended decisions of the administrative law judge and to submit briefs to the Board for its consideration. Rather than directing the reinstatement of the Bureau of Indian Affairs decisions, as the District Court had done, the Circuit Court remanded the cases to the District Court for remand to the Secretary for a redetermination of the appeals.

The decision of the District Court was reversed by the Court of Appeals in regard to the issues of standing and Congressional interference. The Court of Appeals held that the State of Alaska and Federal agencies concerned with the possible impact of determinations made by the Bureau of Indian Affairs Area Office under the Claims Settlement Act had standing under the Interior Department's regulations.

The Circuit Court's opinion rejected the holding of the District Court that the hearings "constituted an impermissible Congressional interference with the administrative process” the lingering effects of which made the usual remedy of remand to the Secretary for redetermination impossible. It is unclear from the opinion whether the Court of Appeals concluded that there was no “inter

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