ference" with the administrative process, or whether on this point the court only concluded that what "interference" there was was not severe enough to preclude a redetermination by the Secretary. The Appeals Court ruled that the decision in Pillsbury (supra) was not controlling since in this action none of the individuals called to testify before the Subcommittee was a decisionmaker as was the case in Pillsbury. The only possible exception, said the court, was Mr. Brown, who briefed the Secretary on the administrative appeals before the Secretary made his determinations. About Mr. Brown's appearance, the court said:

[Elven if we assume that the Pillsbury doctrine would reach advisors to the decisionmaker, Mr. Brown was not asked to prejudge any of the claims by characterizing their validity. See Pillsbury Co. v. FTC, supra, at 964. The worst cast that can be put upon the hearings is that Brown was present when the subcommittee expressed its belief that certain villages had made fraudulent claims and that the Bureau of Indian Affairs decisions were in error. This not enough. [580 F.2d 601, 610]

The Court of Appeals also dealt with the question of whether a letter sent by Congressman Dingell to the Secretary two days before his determination of the ineligibility of eight of the villages constituted an improper interference in the administrative process. Terming the letter a "more serious matter", the court stated:

A more serious matter is a letter that Congressman Dingell sent to the Secretary two days before he determined that eight of these villages were ineligible. The letter requested the Secretary to postpone his decisions on the cases pending a review and opinion by the Comptroller General, because it "appears from the testimony [at the hearings] that village eligibility and Native enrollment requirements of ANSCA [Alaska Native Claims Settlement Act] have been misinterpreted in the regulations and that certain villages should not have been certified as eligible for land selections under ANSCA." The letter did not specify any particular villages, but we think it compromised the appearance of the Secretary's impartiality. D.C. Federation of Civic Assn's v. Volpe, 148 U.S. App. D.C. 207, 222, 459 F.2d 1231, 1246, cert. denied, 405 U.S. 1030 (1972); see Pillsbury Co. v. FTC, supra, at 964. Nevertheless, a remand to the Secretary, rather than a reinstatement of the BIA decisions, is the proper remedy in this case. Assuming the worst-that the letter contributed to the Secretary's decision in these cases-we cannot say that 31⁄2 years later, a new Secretary in a new administration is thereby rendered incapable of giving these cases a fair and dispassionate treatment.

9

We of course intimate no view as to the validity of the Congressman's criticism.

[580 F.2d at 610-611.]

On April 28, 1978, the cases were remanded to the District Court for remand to the Secretary for redetermination of the appeals.

The appeals were remanded by the District Court to the Secretary on July 31, 1978.

On September 25, 1978, the villages filed a petition for writ of certiorari in the U.S. Supreme Court. [No. 78-512]

In their petition, the villages noted several questions as being presented, including, inter alia, whether a District Court, having found that administrative proceedings have (a) violated plaintiffs' rights to due process and (b) been tainted by Congressional intrusion into the administrative process, exceeds the bounds of its discretion in fashioning a remedy by reinstating the last untainted determination where Congress has required that the matter before the agency be resolved rapidly and with certainty.

Petitioners sought review of the appellate court's decision with respect to (1) standing, (2) the remedy fashioned by the District Court, (3) the authority of the Secretary to redetermine residence for purposes of village eligibility, and (4) the propriety of the appellate court's remand order in the case of Salamatof Village. Among the reasons to grant certiorari put forth by petitioners is the assertion that the court has the responsibility to mark the appropriate limits of the investigatory power of Congressional committees and to assure the proper functioning of the Federal judiciary.

A brief in opposition to the petition for writ of certiorari was filed for the Secretary of the Interior on November 16, 1978. In the brief it was argued that the decision of the Court of Appeals was correct and was not in conflict with any decision of the Supreme Court, and that the issues presented were not of recurring impor

tance.

The petition for writ of certiorari was denied on December 11, 1978.

Status.-Insofar as the issues relating to congressional interference with the executive branch have been resolved, the case is closed.

That portion of the District Court's opinion which is of interest to the House of Representatives is printed in the "Decisions" section of the report of Court Proceedings and Actions of Vital Interest to the Congress, Part 1, April 15, 1977.

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, Part 4, May 15, 1978.

In re Beef Industry Antitrust Litigation

No. 78-3344 (Fifth Cir.)

In the course of conducting investigations of marketing restrictions and unfair competition in the beef industry, the Subcommittee on Oversight and Investigation of the House Committee on Interstate and Foreign Commerce and the Subcommittee on Small Business Administration and Small Business Investment Companies of the House Committee on Small Business, issued subpoenas duces tecum to some of the plaintiffs in In re: Beef Industry Antitrust Litigation. At least some of the documents sought by the committees were subject to a protective order previously issued by the court on November 23, 1976.

Those parties who were recipients of the committees' subpoenas asked the court to either clarify or modify its order to allow compli

ance with the committees' subpoenas. A hearing was held on the motion on March 22, 1978. On April 4, 1978, the motion was denied.

On May 30, 1978, the Subcommittees and the Clerk of the House filed with the District Court a "Motion For Leave to File". In the motion, the Subcommittees and the Clerk supported plaintiffs' earlier motion for leave to comply with the Subcommittees' subpoenas. On July 27, 1978 the District Court held a hearing on the motion filed by the Subcommittees and the Clerk of the House.

On August 17, 1978, United States District Judge Taylor, in a memorandum opinion, denied the motion of the congressional movants for clarification or modification of the protective order. Judge Taylor stated that the sole question was whether Congress can subpoena documents in the hands of a litigant who would not otherwise have them except for the discovery procedure of the Federal courts when there has been no showing of extraordinary circumstances. The memorandum opinion noted that the persons subpoenaed would not have had the documents but for the discovery rules of the Federal courts and that the congressional movants had not based their motion on any extraordinary need for the documents to be subpoenaed from those particular individuals. Judge Taylor held that Congress, by subpoenaing the documents was interfering with the processes of a Federal court in an individual case. Furthermore, the memorandum opinion stated, had a protective order not been in force covering the documents, a motion for one would have been entertained by the court.

On September 11, 1978, the congressional movants filed a notice of appeal with the United States Court of Appeals for the Fifth Circuit of the denial of their motion for clarification or modification of the protective order.

On November 27, 1978, the congressional-appellants filed a motion that their appeal be separated from other appeals growing out of this multidistrict litigation, with which it was docketed; for expedited oral argument; and for an early decision as soon as practicable after oral argument.

On December 4, 1978, appellee, Iowa Beef Processors, Inc., filed a memorandum in opposition to appellants' motion to expedite, on the grounds that appellants have not acted expeditiously themselves and that appellants have made no showing to justify expedited treatment.

On December 5, 1978, appellee, The National Provisioner, Inc., filed a motion to dismiss the appeal of the congressional-appellants for lack of jurisdiction and as unauthorized.

On December 7, 1978, United States Circuit Judge, Robert A. Ainsworth, Jr., issued an order, dismissing that portion of the congressional-appellants' motion to separate their appeal, since the Clerk had separately docketed other appeals growing out of this multidistrict litigation; and granted that part of their motion to expedite subject to the classification of the case under the court's screening procedures.

On February 2, 1979, a 3-judge panel of the Fifth Circuit Court of Appeals issued its unanimous decision. The panel's opinion focused upon the status of the congressional litigants seeking modification of the District Court's protective order and did not reach the sub

stantive questions on Congressional access to documents involved in judicial actions.

The panel initially characterized the status of the congressional litigants as that of intervenors. The court noted that these litigants had not sought to comply with Rule 24(c) of the Federal Rules of Civil Procedure governing intervention in actions before the Federal courts, but had instead characterized their involvement in the action as seeking leave to file a motion to grant the request of a party to clarify or modify the protective order. The panel concluded that:

There is no question that the procedurally correct course for the chairmen would have been first to obtain status in the suits as intervenors. See SEC v. Lincoln Thrift Association, supra, 577 F.2d at 603. However, we note that the district court denied the plaintiffs' motion for leave to comply with the congressional subpoenas, "without prejudice to the right of the Committee and its counsel to appear before this court and ask for the relief that it seeks." This could be construed as an invitation to the chairmen to file their motion without first seeking formal intervention; indeed, the appellees use the words "permitted to intervene" when referring to the appellants' status in the motion to dismiss. See West v. Radio-Keith-Orpheum Corp., 2 Cir. 1934, 70 F.2d 621, 624, cited in SEC v. Lincoln Thrift Association, supra, 577 F.2d at 602 (creditors had standing because they were "brought in in invitum"). Compare United States v. United Fruit Co., supra, 410 F.2d at 544 ("The [protective] order provided that third parties could not, without an express order of the court inspect or copy any document submitted ***"); Roach v. Churchman, supra, 457 F.2d at 1104 (affording relief to a participant without formally naming it as a party deemed 'equivalent to authorizing" intervention). In view of our lenience in the past and the fact that the district court's acts might be considered equivalent to authorizing intervention, we will not dismiss for the failure to comply with Rule 24(c), but we will assume that the district court implicitly authorized the chairmen to intervene. However, we reiterate that a formal motion for intervention should have been filed pursuant to Rule 24(c).

[Slip Opinion at 3067]

The court next turned to the question of whether authorization by the House of Representatives was a necessary requirement for the congressional litigants participation in the case. The court declared:

In response to the appeal filed by the chairmen, one of the defendants, the National Provisioner, Inc., filed a motion to dismiss because neither subcommittee had obtained authorization from the House of Representatives before it sought to file the motion in the district court; we note ourselves that neither has obtained authority to appeal. The premise of the motion to dismiss is that authorization is required by Rule XI, cl. 2(m)(2)(B) of the

Rules of the House of Representatives for the 95th Congress, H.R. Doc. No. 94-663, 94th Cong., 2d Sess. (1977), before a congressman may appear in court on behalf of a committee or subcommittee; that rule provides:

* * *

Compliance with any subpena [sic] issued by a committee or subcommittee may be enforced only as authorized or directed by the House. The position of the chairmen is that authorization under this rule is not required both because they seek modification of a court order rather than judicial enforcement of a congressional subpena and also because they do not desire to retain outside counsel to represent their subcommittees in court. However, they point to no other rule and to no statute that confers general authority to prosecute or intervene in law suits or undertake other actions in the courts.

[Slip Opinion at 3068]

The court noted that Congressman Moss, one of the litigants here, had earlier sought House approval for his intervention in Ashland Oil, Inc. v. F.T.C., DDC 1976, 409 F. Supp. 297, aff'd 179 U.S. App. D.C. 22, 548 F.2d 977 (per curiam). În reviewing the House's grant of authority in that action the court stated:

The resolution passed by the House authorized Congressman Moss to "intervene and appear" in the pending action in district court on behalf of the committee. The report accompanying the resolution, H.R. Rep. No. 94-756, explained why the resolution was necessary. It noted, "The Supreme Court has ruled that a committee (or subcommittee) must have specific authority from the appropriate House in order to undertake any court action. Reed v. County Commissioners, 277 U.S. 376, 48 S. Ct. 531, 72 L. Ed. 924 (1928)." (Emphasis supplied.)

4

In Reed v. County Commissioners, 1928, 277 U.S. 376, 48 S. Ct. 531, 72 L. Ed. 924, the Supreme Court dismissed a suit brought to compel the production of documents because the members of the committee were not specifically authorized by the Senate to bring suit. Specific authorization has also been required in the context of prosecutions for contempt of Congress. Cf. Gojack v. United States, 1966, 384 U.S. 702, 716, 86 S. Ct. 1689, 1698, 16 L. Ed. 2d 870, 880 ("The line of authority from the House to the Committee and then to the subcommittee must plainly and explicitly appear').

H.R. Rep. No. 94-756 at 22. The resolution was approved with unanimous consent. 121 Cong. Rec. 41707 (1975). After obtaining authorization, Congressman Moss sought and was granted leave to intervene in the suit pursuant to F.R.C.P. 24(a). 409 F. Supp. at 301.

[Slip Opinion at 3068-3069.]

Continuing its analysis of the Ashland Oil case, the panel noted that in that action Congressman Moss was seeking the lifting of a temporary restraining order, not the modification of a protective order and that in Ashland Oil the hiring of special counsel to represent the congressional interest was authorized. Addressing itself to these distinctions the panel declared:

In Ashland Oil, Congressman Moss was not seeking to obtain judicial enforcement of a congressional subpoena;