ML20127F862
| ML20127F862 | |
| Person / Time | |
|---|---|
| Issue date: | 05/21/1984 |
| From: | Plaine H NRC OFFICE OF THE GENERAL COUNSEL (OGC) |
| To: | Gilinsky, Palladino, Roberts NRC COMMISSION (OCM) |
| Shared Package | |
| ML20127F833 | List: |
| References | |
| FOIA-85-164 NUDOCS 8506250275 | |
| Download: ML20127F862 (18) | |
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unir 6 rara g ['.. gggI. NUCLEAR REGULATORY COMMISSION suasmussrom.o.c.sses o,,,, , May 21, 1984 MEMORANDUM FOR: Chaf ==" Palladino Commissioner Gilinsky - Cozanissioner , Roberts Coannissioner Asselstine ca-4ssioner Bernthal t
. FROM: Berzel E. E. Plaine General Counsel
SUBJECT:
RECENT SUPREME COURT DECISION ON SUNSHINE ACT
.On April 30, 1984, a ur=a4=aus Supreme Court decided FCC v. ITT World Conununications, U.S. , 52 L.W. 4507, a copy of which 1.s attached. ,
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, 2.e.) DECISIONS QF THE COMF2' ROLLER GENERAL 613 _
G. '
. Otway was unawair of the requirement to use US. air carriers.
. Ulleci Mr. Otway is not an employee of NRC, the agency feels that
[ -$ shou not be penalized for its failuir to give appropriate instrue-
,. j tiensand make proper arrangements for the travel. ;.
6:De aqui ment for use of eet tificated US. air carriers in interna-g q ( frional travel imposed by nection 5 of the International Air Trans- p yportation Fair mpetitivo Practices Act of 1974, Public Law 93-6 , , j tf January 3,1975,4 US.C. g 1517 (1976), which provides that: .
"I 4. '* *
- De Comptroller eneral of the rotted States shall disallow a expendt. g
. sure from appropriated funds for paTment of such personnel or en ransports-
' casa en sa air carrier not holding a certlocate under section 401 f this Act in
'j'De ahmenee of antisfactory proof of the necesulty therefor. * *
,l 7b law does not differenhiate between Governmeemployees and
- c. ? Gerernment invitees. All Go'vernment. financed
- travel must be on 2-5U.S.aircarriers unless those ca iers are "unav able." See B-188968, o- IWaguet 8,1977. There is no prov falty for using a foreign flag carrie{rsbecaion of the ageney'sto atl' e atotraveler failure of the pen-k Make appropriate trsvel plans. The \ t 'rement for use of certificated l,f, . isarvice is mandated by statute and m ot be waived. B-186007, No-
" , vember 15,1976. Therefore, because ranspgrtation by ~ certificated US.
- 9. air carriers was available betwee 'ienna and Washington, Mr. Otway
.[imay not be allowed the amou of money inbroperly diverted from h -jff.S. a r carriers.
,,, FNRC '
has adopted the ileage proration form la described in 56
. Cosnp. Gen. 209 (1977 for itse in determining t amount of the n;g ytrattler's financial l' ility. Applying the formula Mr. Otway's i use of a noncertificated air carrier rom Vienna
.M 3.'.Tocase, his liability New Yorkis 45.08. f h j;
I' However, r. Otway's travel voucher inchules an ina licable - - - - M k'round trip tr fare of $722; the correct price for the authorize
' trip tie t,if purchased in Vienna, Austria,is $969.60, or $247.60 ore und w
$5 3~' <
,than se amount, claimed. S*nce the penalty is $245.08. Mr. Otway m. v
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[ - llowed $2.52 in addition to the amount claimed on his voucher,i berwise corrret. Sec 58 Comp. Gen. 208 (1978). W "-4M 5e f .'
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[B-1935363 k hm a
.. . A sorneys -Fece-Administrative Investigative Proceedings e ,
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.'. de a result of its own larestfration of misconduct chstgen initiall,r innde by a N
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- 9 strate party, Securities and Exchante Cotumission (MEC) found pmsible merit *"" 1 --
( to therses assinnt three of eleht MEC en.ployees and appointed a henring ex. PI . m i
". . seiner who ultimately detertulned the minconduct allegationn to be without tuerit. 8h!
8100 unay not relenburne utforney's fees inerstred by the employee an a cost of providloc legal repre*entation. since, upon its deterininntion to further pursue f' .,'..ggq:p A matter, the case wa* no looner one in which the Government's interests were
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- 3. 61.4 DEczaross or TnE counnot.Lta cENERAL kH Osep. Gen.} DECISIONS oF hV . e.'
aligned with those of the employee in defending charges brought by a thirc ! .-The regnest frem the S1 party aralnst the employee for coc. duct within the peope of his ofFcial respon>l. i-%
; .. conduct are tagen very ser 4,. btlities. compare n-127s45. Aprils.197s.
M - found to have merit, the Attorneys-Fee --Agency Authority To Award , adnne personnel action.11 h 8 Where an EEC intestigation of charses of misconduct against three SEC ens-playees was ultimately resolved in fator of the employees. the employees' lecat Regulation can lead to that
$ cation from appearing or
*i fees may not be reimbursed. Attorney's fees may be awarded to the paralitna- ,
p, party only when there is express authority for the payment of such fees and i . 3 900.73b13. Since an emp
. y, there is no speciSc authority for award of attorney's fees in standards of conduct
- I
.i Ind his career in jeopard'
- e1 ! proceedings la the nature of those conducted by the SEC.
i for the employee to retam. {Y,. In the matter of Securities and Exchange Commluton-Reimburse- i misconduct have bean fou
' ment of Legal Expense Incident to Internal Investigation, June 18, I believes it is appropriate t.
y
, [ 1979: !
byits employee.The SEC, thelegalauthority to rtimt i This action is in response to a request for a decision from the i described abon.
! i Securities and Exchange Commission (SEC) concerning its authoritv f '. to reimburse reasonable attorney's fees paid by SEC employees incident The question of whethi suer +adul or prevailing pa h to an SEC internal inquiry into allegations of misconduet filed against .
. be molnd on the basis of b the emplovees
~ by ar outside party. .
for the payment of such
} {! The twlnest from the SEC etates that in the coune of administrative , .
Boeiety,421 U.S. 240 (19,s j j i proceedings against a securities broker-dealer, a respondent in thest proceedings charged ist certain SEC employees had violated pro-l t of anomq's fus in stands ( ; , those conducted by the SI o o visions of title 18 of the United States Code, violated or aided and j otherwise has statutory au
", s, betted violations of the SEC Conduct Regulation (17 C.F.R. $ 200.- .
; e intive proceedings of th 735-1 et seg.), and otherwise e'ngaged in improper professional con-weSnc duct in connection with the administrative p:oceedings. These allega- 781(e). Thenfog, s fees of
.I
;h 5 ; tions were also filed with the Internal Revenue Service, the United Pay the attorney admimstrative proceedm; 7 !
States Attorney's Omee, and the Ethics Committee of the Bergen t ; allegations cf misconduct b . Countv, New Jersey, Dar Association. In addition.the respondent filed
# However, we beheve th
}j ,I four s'parnte e lawsuits in United States Dis +rict Court in which he rants consideration. While j '. raised substantially the same charges of misconduct by SEC staff. The 8ent an employee is genei h ;- SEC and its staff members were represented in these lawsuits by j counsel from the SEC's Omee of General Counsel, and all of thek and the client (55 Comp M i l Provide an employee witl 3 l .}g lawsuits were ultimately dismissed. }
the United States'interes i Under SEC procedures. the Omee of General Counsel conducted an sonal laterest. B-IdO141, informal inquiry into these allegations of misconduct by three of the M' :}i . an impartial hearing oEcer to conduct a formal inquiry. After a period G fy '- SEC employees and.upon the aalrice of that omee, the S'EC appointed Government has an inte Private party against, a 1 of about 2 years, these two inquiries were completed, and the SEC i r. rising out of conduct w I and that the Government
.]4p accepted the hearing omeer's conclasion that the allegations of mis.
' conduct were without merit. The SEC closed the matter with no Proceedings. B-150136, 2 P through its employees, e k i; adverse personnel action taken against the employees in question. At least two of the employeu involved have requested that the SEC taken in furtherance of g;(j reimburse the legal fees they incurred in retaining private counsel to Federal Government. 3fc Ej:~ would have to bear their <
- j. nepresent them in connection with the inquiries, t A i. i MI
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D..'. yk 615 Its 4 Omp. o*a.) M .. DECISIONS OF THE COMPTROLLER GENERAli 1 p [ a' $ br a third d. " The request from the SEC states further that allegations of mis-
- "P""d
- i conduct are taken very seriously and thr.t where the allegations are 4 h k g
,: found to have merit, the employee involved may be subject to an
- l b D
.'t ' adverse personnel action. In addition, vietation of the SEC's Conduct Regulation can lead to that person's temporary or permanent disquali-I 'g ,
am cr.c m. E e'
- W bl :: 6estion from appearing or practicing before the SEC. See 17 C.FA t-EYc!,5 ' . g 900.735-13. Since an employee who is the subject of an inquiry may l [ $
Ws er eonawi .
- 3. End his career in jeopardy, the SEC believes it is not unreasonable
' for the employee to retain private counsel. Where the allegations of
-Reimburse- ;.. misconduct have6 been found to have been without merit, the SEC
- E on, J:ne 18, .g. believes it is appropriate to reimburne reasonable attomey's fees paid *
.E by its employee. The SEC,therefore., asks to be advised whether it has jy thelegal authority to reimburse atterney's fees under the circumstances lon from the d iitsc:th ritv T. escribed above.
Ly,esincident 5k,'..The question of whether atto ney's fees may be awarded to the ful of Prevailmg party m a particular proceed,mg is a matter to :j died mind .T ""lved be reso on the basis of whether there is express statutory authority for the payment of such fees. Alyeska Pipeline Co. v. Wilderness
- d]ministrative Society,491 U.S. 240 (1975).There is no specific authority for award [
bdent in the.-. F~. of attorney's fees in standards of conduct proceedings in the nr.ture of g ( 61aud pm. . those conducted by the SEC and we are unable to find that the SEC cr cided anil lC.FA g 200.- k}.atherwise
'. has statutory authority to award attorney's fees hfessionsi con- .' iPi(e). Therefore, we f.nd that the SEC does not have authority to L These allega-S.-'<.psy the attorney's fees of the employees based upon the fact that the
'ee. the United v e 'A* Mrative Proceedings were resolved in their favor and that the - $f the Bergen f. allegations of misconduct were found to lave bm without merit. C espondent fiini Y '- However, we believe there is another aspect of this case that war.
- g h in which he .
rants consideration. While the hiring of an outside attorney to repre e @EC staff.The ; . sent an employee is generally a private reatter between the attorney fse lawsuits hv r
- and the client (55 Comp. Gen. 1418(1976)), the Government may nd c11 ef thc4 provide an employee with representation for private litigation when p,
j the United States' interest is at stake along with the employee'ai per- .
~p-01 conducted an sonal interest. B -13M41, April 12,1978. We have recognized that the g.
by three of the Government has an interest in judicial proceedings brought by a p#- . SEC cppointed 1l
. After n period ' Private party against a Federal employee in his individual capacity .
arising out of conduct within the scope of his Federal employment
- 1. and the SEr and that the Government may properly provide representation in such
.gations cf mis. s
~ Proceedings. B-150136, May 19,1978. Since the United States acts mttzr with na I p
in questi n. .\t through its employees, advocnLing the legality of employee actions * -
- that th2 SEC taken in furtherance of their official duties is in the interest of the .g.
Federal Government. Moreover, if agency employees knew that they
-irata counsel to '
wculd have to bear their own representation expenses in actions against r . 6.-
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; -k5 ncetslows 616 neerstows or Tar courrnowra crxrnAL ts:
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m r,- : wnduct by an employe< them resulting from performance of their jobs, they would discharge Ih their duties and exercise their disentionary functions less vigomusly. , the charges were mitta' 4 .. ministrative fomn.
.f y Generally, the Department of Justice provides its attornevs ' to repre- In p197945 the Nuc jI T sent employees in litigation under the authority of sectiotis 516,517, 3 d.e a motion for censure
< % 518, and 547(b) of Title 28, United States Code.These sections charge the Department with the tvsponsibility for representing the United
-T. Private attorney repres ,
h d ;; eeeding. The private a , 4 '. States in all litigation in which it has an interest The Attorney Gen. i.- sgainst two % em} i eral interprets these provisions as giving the Department the statu- secordance with NRC : jU tory authority for its polier of ' representing Federal employees in is to a specialM for1 }f I ][! . court actions bmught against them in their individual capacity be-cause of acts performed within the scope of their employment. The 1 (. defend the chargesits employees bmught at l
; *I Department implements this policy in accordance with its statement
.. ing that the NRC cou i l j - on reptesentation found at 28 C.F.R. Il 50.15 and 50.16. : legal services,we state
; However, the Department will not provide counsel to charged em- * *
- an agency may 9:
f i
/
ployees in administrative disciplinary proceedings. Subsection 50.15
) i , } i Ny#de*S',9 mg l (a) of its policy statement specifies the kind of proceedings in which 4y ! gj , / clearly acting within the
- 4:
the Department teill pmvide representation. It states : interest to provide them q !
- declined representation i
{ (a) Under the procedures set forth below, a Federal employee (herein deoned 1 be arallable to supply ec
) to include former employees) may be represented by Justfee Department attor-j
; -' It was NRC's view thz neys in state criminal proceedings and in civil and Congresalonal proceedings in t members before the Spe<
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, j* which he is sued or subpoenaed in his individual capaelties, not covered by ( 15.1 of this chapter.
Alets of interest. The % attorneys because that C gs . In response to a recent request for the Attorney General's v.iews re- rettew of the soard s de gl m ; garding Department of Justice representation at the agency level in geentige, Djrga, h i i tion because the interre b T disciplinary and discrimination proceedings, the Assistant Attomey gtto gc y' N E N e General explained that administrative disciplinary proceedings ars ,
]
g } ^ that the OtBee of ELD
, n. not included m subsection 50.15(a) because : .
a nee p
!, b * *
- It is the po!!cy of the Civil Dirlslon. In this regard. that none of its A rd
' attorneys may represent federal agency personnel in disciplinary or Title m conduct within the sco83 f
[ discrimination proceedings for the reason that the Civil Division will be respon- purpose. the NRC could 3 1 3 [& sible for defending the employing agency in the event the employee brings a ciril services. * *
- l r3 actiou challenging the results of the proceeding. Representing the employee at the
, s agency level proceeding would, therefore, create an unacceptable conf!!et. At the outset of th
;{ by NRC that the coa In judicial actions in which the Attorney General declines to pro.
' j '{*iE scope of their emp3 vide representation, agency appropriations are available to provide Government to pro representation if otherwise proper. 55 Comp. Gen. 408,412 (1975). In actions against the e
($p ;$ such cases, the agency must determine that representation is in the ney. Outside legal e y Government's intertst and that the conduct in question was in further-special pmceedings. k .o ance of an agency function. In such cases, whers the appropriate deter-minations have been made, the cost of an attorney may be considered a was unavailable and
? '
- nflict of interest.
] ! necessary expense incurred in performing that ageney, function. 53 ta.med on the basis
' Comp. Gen. 301,306 (1973). Recently, in B-127945, April 5,1979, we
,. that the Governmee recognized that because of the unavailability of Department of Justice gati n against an
.j l [ +' f h@f: representation an agency may use its appropriations to provide coun-sel in connection with an administrative hearing of charges of mis-within the scope of
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- - b' ee 3 i o.s.) DEctsloNS OF DEE C0h:FTROLI.EE GENERAL 617 k
!q& r. conduct by an employee in the performance of his official duties when l t
? the charges were initiated and pursued by a private party in that ad-
. ministrative forum. J In B-127945 the Nuclear Regulatory Commission (NRC) stas filed a motion for censure for alleged professional misconduct against a
- 1
. private attorney apresenting certain parties to a licensing-related pro-
. . eseding. h private attorney filled a motion for disciplinary action
. against two NRC employees whom he charged with snisconduct. In g
i . accordance with NRC's Rules of Procedure, the charges were niernd i to a special board for hearing. The NRC retained private attomeys to
;. defend its employees in the two party disciplinary proceeding against 7 the charges brought and pursued by the private attorney: In conclud-
- 3. ing that the NRC could expend its appropristions for the necessary
- 3. legalservices,westated:
y * *
- as agency may properly charge against its appropriation the expenses of defendlag acts performed within the scope of agency employment. Here. *the NBC Executive Legal Director determined that the employees involved were _ ]
. . elearly acting within the scope of their authority."It was therefore in the agency's sa r . --
' . interest to provide them with legal counsel, and since the Attorney General has ~ 4 ' ' , # ed p- ~.
- s. 5; ,7- JO . 1
-.. dee!!aed representation in this type.of proceeding. NRC appropriations would he aranable to supply counsel to the charged statt anembers. e.5 g2
'-c.* It was NRC's view that its own attorneys could not defend the charged staff V .' li
... members before the Special Board because their appearances might create con- ")d C MNT-C - -
- 4. Alets of interest. The NRC's OSce of General Counsel could not supply its 4/ :g -7 h"A- 3
*
- attorneys because that Osce would be responsible for advising the NRC in its *5; g
=
'"i A review of the Board's decision in the proceeding. Although it is not clear from
. - '" ? W -
the Executive Director's letter, we have been advised informallT that attorneys L
$ ,v,.'
i ?D -_S_R. C i M. N y - f."from the OSee of Executive Legal Director (ELD) could not provide representa- ' tion because the interrenors who Sled misconduct charges contended that ELD E i tttorneys must prosecute all such charges. As a result, when its was necessary 3~
. fee NRC to deelde whether to retain outside attorneys, the ,
i _
; that the OSce of ELD would be prosecuting the same case,possib!!!ty existed ---
- w -
.- Omee's representation of the accused attorneys inappropriate.thus making that b M.M'iC6 j p
. . . Accordingly, since providing legal counsel to these NRC employees to defend
... +
conduct within the scope of agency employment is in furtherance of the agency's l
? purpose,t seerscoe. .he.N.RC could properly expend its appropriations for the necessary legal l i
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'[l by NRC that the conduct of its stas members n e was conduct ;
withi thAt *the
~.d" ;Ew scope of their employment and that it was in the intenst of the ~
li
. . Government to provide them legal representation to defend their actions agamst the ehntges brought andI .ursued by the private attor-1 ney. Outside legal counsel was retained by NRC at the outset of the L..,ggg j --
.i. special proceedings. Inasmuch as Department of Justice representation F ' "
? -
T was unavailable and agency staff representation involved an apparent
' [, conflict of interest, payment of the legal expenses involved was sus-D
+
N $y tained on the basis consistent with our decisions cited above, holding 3 1 i { that the Govemment may ptuvide legal representation in private liti- [k -- - -- ch ; 3 igation against an employee in proceedings arising out of conduct
- within the scope of his employment. In th6 prior cases and in the NRC
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IM f' 618 Decistoxs or ntE cowrROLLER GENERAL oemd DECISIONS Or (b M proceeding. the conduct of the Federal employees was brought into It is not a determination j g issue and pursued by a third party and not by the Government itself. suocessin the particular pr i'j ', The SEC case here in issue differs significantly from the NRC case , jh ' in that the charges of misconduct while initially raised by an outside party, were pursued not by the outside party but by the SEC on the
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- n. ,
ge im .I-basis of its independent determination to investigate the conduct of i "' three of its employees. Correspondence received from two of the three OnimwAssignmentM h U l signee's Right to Paynn 'lj IJ SEC attorneys involved indicates that the private respondent in the . Fj i i SEC administrative proceeding against the securities broker. dealer '
.{ oorernment contreetors snu Institution, which was execut initially made allegations of stas misconduct ngninst at least eight f I. I I SEC employees. The SEC Ofiiee of General Counsel conducted a
[j.d'h formal investigation into all of those allegations. With respect to at
- 5. M
- O '[ $ N or'$
t . tastant contract account. B-I [M least one of the employees, the Office of General Counsel initially con-cluded that there was possible merit to the allegations and recom- l '. Inetsion, the matter Assignment of Genee of i f h - i
'? mended that disciplinary action be taken. Because of additional infor- .
mation subsequently obtained, disciplinary proceedings were not in The General Services eg. decision concerning the i,i l fact instituted but, upon the recommendation of the Office of General N N@E'. Counsel, the SEC appointed an independent hearing examiner to conduct a further inquiry into the matter. It was at this point that the 02S-29880 with Teltron
~, received performance f t
holder ready to make pa M l employee retained private counsel. We understand that the other 1' di two SEC employees also retained private counsel at this point and J This uncertainty stems d ! - that a transcribed hearing was held concerning the conduct of all three. ;
- and Trust Company of O The hearing examiner found the allegations of misconduct to be with- i payee by virtue of an ag~
- l (i
[ ei out merit and recommended that no action be taken with respect to any of the three. the proceeds from this e N of this assignment undu Under these circumstances.the cost of providing counsel may not be considered a proper expenditure of appropriated funds. Upon SEC's 1
- v. '
amended,31 referred to as the Act) U.S.C. $
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determination that the matter should be further investigated with y [h }g. respect to three of the SEC employees, the situation was no longer one in which the Government's interest was aligned with the interests On Mnv 1,1978, G2
!;[ of the three employees against charges pressed by a third party, and installation and maintd p[$l 5 thus it was no longer in the Government's interest to provide them . Bennett Field, Brookhh '
j with legal counsel. The SEC hearing was a formal agency fact. finding
- Teltronies submitted to
, [, mquiry to determine whether its employees wete gudty of misconduct. g, .the amount of $519 M A In fact at that point. the situation was indistmguishable from that m .
asserted its cla.tm to anJ , M l5 which an agency itself initiates an investigation into the conduct of its
.. mg GSA s contactmgl I i
' 'd. own employees. That the employees wete ultimately vindicated does 4 ace unts receivable. Asi not change the character of the proceeding.
.C Q $l a Security and Assignu dl "; The determination to provide an emplovee with legal representa-Teltronies agreed to the I
tion is one.to be made at the outset of proceedings initiated against l'. FOR VAL 1JE RDCEIM j i h, NI h
' k"h. him by an outside party based on a determination that the conduct in question was with.m the scope of h.is offic.ia l responsibilities and that made to the 1*ndersigned I other evidence or indebted l j .
it is in the interest of the Government to provide for his repr sentation. p ut'
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g El,; ight int" . Mitis not a determination to be predicated on the employee's ultimate ' at itnelf.
' ,.. - somess in the particular proceeding.
3RCcw m. - s L outside ,
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@ on the l .9 '.~, [B-1949453 nduct of ' 5 3hethtw '
. .-Assignmente-( catreets-Validity of Assignment-An-It in the sign Right to Payment
[ Dr-dealer J. Governa contractor's secured note, ass:rning accounts receirable to financial ast eig} t
- lastitution, leh was executed during the period the instant Government con.
treet was beln rformed, should be recognised tcder Assignment of Claims Act. Sucted n
'. Record includes ontractor's schedule of accounts receivable which lists th sect to af '.' :. lastant contract a t. B-1202 :::, Oct. 2~,1955, mod 1Ae1 bily mn. II.'la the matter of S MMt"* eral Services Administration-Advance 1 cision, Assignment o Galms Act, June 19, 1979:
xl infor. -3 1 50 not in b. The General Services A ministration (GSA) requests advance 2 Gencrut '.sJecision concerning the pro r payee under GSA cont No. GS- ,_ g . miner in %-02S-298SO with Teltronics Se ices,Inc. (Teltronics). A, having 8 ' G that the .g neelved performance from Telt ics,is now in the tion of stake. )he other 4
.I holder ready to make payment,but uncertain as to)Ie properpayee.
wint and W This uncertainty stems from a claim f the Sterl' g National Bank ? cIl thew. Mad Trust Company of New York (St ling) tat it should be the obe with. '
.; . payee by virtue of an agreement in which tr les allegedly assigned eet to any Qthe proceeds from this Government contra Sterling. The validity y of this assignment under the Assignmen of C ;ms Act of IMO, as 3 4
%y not bc i , en SEC% .[immended,31 U.S.C. g 203 (1976) .S.C. i and 1 1976)41 (hereafter 42,.?nfernd to as the Act) is the determ' ative issue he E tied with - En longer Gj- : Background s intemte ;p..On May 1,1978, GSA awarded to Teltronics a contrac or the d "F' ""'I d installation and maintenane 'of a communications' system at loyd W.ide tiic'" Mnd,ing " Bennett Field. Brooklyn, .' w York. Upon completion of installat n, l
~
ise0nillts l. d Teltronics submitted to SA on May 4,1979. an invoice for paymen
' . I om thzt in duct of its
.,}ta the amount of $51f.678. Previously, on March 16, 1979, Sterling
- J88Serted its cla,m i t y Payment under the m, stant contract by notify-g ated' dix-- Mmg GSA's contra ing officer that it was assignee of all Teltronics' p'n.
p caccounts receiva e. As evidence of this assignment,Sterlingsubmitted O
.a Security an epn e,enta. ssignment Agreement, dated July 19.1976, in which E Q ega;n.1
- Teltronies n'
. d to the followingterms: Ed .
k' ndui-: in .' FORtoVA 'E RECEIVED. and in consideration of loans or extensions of credit E ~,,,, i end that
'.made t e Undersigned [Teltronles), as evidenced lir anr notes, guarantees or
;.scher er enee of indebtedness executed by Undersigned. the Undersigned herebr b .
sentationi. .;;evergrants security Interest in, sells, assigns, trsnsfers, deposits, pledges and sets '4'r the Bank (Ster 1Luz) all it right, utle and interest in and to each and rJ.
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! David Ryan v.The United States Administmtive pmetice and procedurg gmnd Jury ap-Y gC. J G.y_ -5% -
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n;, 3 2,[-% f - /;..gg. p 4' l peamace by fedemi employec reimbursement of attorney i fses. On May 1,1981 the court entered the following order: , 7.p. --Aqy .x C fJ;:; 3..W'% p g' W - [ Alan E Wolin, for plaintiff; Jack R. Solerwitz, attorney of record. .: ~. 3 S~64$d:M'O j;' p. Q Stephen G. Anderson, with whom was Assistant Attorney
,76's &gy Q~'.% c g, Genemi Alice Daniel, for defendant. : T .W ,f=~ -
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- - - -g g f This claim for the reimbursement of attorney's fees is " -q L before the court on the parties' cross-motions for sismmary ;i, . %
% judgment. After hearing oral argument, we conclude that Q, C _ = =2_- -. . - - - mq
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plaintiff is not entitled to recover these costs and therefore -d X "-62 f grant defendant's motion for stimmary judgment. - rs. -&A ~ R _ _ _g _= a n
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i Plaintiff, a documents classification officer in the Federal Bureau of Investigation (FBD, voluntarily engaged the servions of an attorney on receiving notice that he would be _j m_# %
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f i subpoenaed to appear before a grand jury of the United J - [ States District Comt for the District of Columbia in ,,,b?.pg,g if connection with its investigation of surreptitious FBI g.3 2 3 -
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entries. Although plaintiff was informed by officials of the g Department of Justice that he was not a target of the investigation, he sought his attorney's advice since it was
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712 Onomas !, 2ri ct. ct. sis 1 until the Justice Department had conducted an interview i with the potential witness. Without the benefit of the initial I ' interview, plaintiff alleges that he was not apprised of the We find tl-( intended scope of the inquiry, and as a security officer for Position. Pla. l the FBI, he was concerned about safeguarding sensitive prenuse that national security interests and was also mindful of his of his empi j' i pnvilege against self m.erimmation. Although the Plaintiff was later subpoenaed and made an appearance tm of p before the grand jury on March 31,1978. PlaintiffIncurred and often def executing its legal fees of $2,100 for his attorney's assistance in prepar- Department ing for this appearance. Plaintiff's request to the Justice practice of p: Department for reimbursement was denied on March 22, Justice Depa 1979, by Barbara Allen Babcock, then Assistant Attorney withcut the General, CivilDivision. have on nur Plaintiff thereafter filed this action alleging that defen. serves as th. dant's refusal to reimburse him was unlawful and deprived practice. Men him of the protections guaranteed by the fifth amendment. 1960), cert d.
! Plaintiff also alleges that defendant breached the parties, O1 2d 676 g
implied employment contract when it denied plaintiff's 37 Q, , request for reimbursement. The gravamen of plaintiff's complaint is that the Government's denial of his claim for Attorney Ger States in a su reimbursement is in violation of 28 U.S.C. I 517 (1976) and in a court of a 28 C.F.R. If 50.15 and 50.16 (1979). This statutory authori- United State l ty, according to plaintiff, charges the Government with the interest in a legal representation of a federal employee who is sued or authority, is - subpoenaed in his individual capacity relating to acts which Performed in are properly within the scope of employment as long as the be important employee is not the target of a federal crimmal investiga- its legality; c tion or defending his acts in a federal enminal proceedmg. ""h'**E' % Plaintiff argues that he was therefore entitled to legal " ," representation smee he was not a target of the grand jury , investigation. Plaintiff further argues that private counsel oN Taz Junic: was retained pursuant to the terms of 28 C.F.R. 6 50.16, m Paocznr L
, since the Justice Department could not advise him as to his Jumer Der I
i concerns over the possible disclosure of sensitive security Couxssz. ro Q matters to the grand jury because ofits own interest in the SUITS (Comm. investigation. i Federal err
; counsel in ord
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- o m:;a ..x We find that the law simply does not support plaintiff's position. Plaintiff begins his argument with the erroneous I
p.'i.gg=;.: - premise that a federal employee who acts within the scope $ j.p~W. nfWC.J M;_ - of his employment is entitled to legal representation. Although the Government has long recognized the impor- 'l tance of providing its employees with legal repreeentation ' I
. and oft'en defends its officers who are sued or prosecuted for MMM executing its laws, the law does not compel the Justice 3 WIj5d I 3MqE Department to defend these employees. Opponenta to the
~,
practice of providing representation have argued that the
. Justice Department, in representing these werkers, acts __ ,_
t without the proper statutory authority; however, courts y E_--2 __.M P f have on numerous occasions held that 28 U.S.C. I 517 h- _ m-w g a serves as the Justice Department's legal basis for this G3
"' " - - V14 --~ '
7 practice. Meredith v. VanOosterhout, 286 F.2d 216 (8th Cir. i 1960), cert. denied, 365 U.S. 835 (1961); Booth v. Fletcher, . EM E i l' 101 F.2d 676 (D.C. Cir.1938), cert. denied, 307 U.S. 628 i e x TM l k (1939)he By of 28 U.S.C. I 517, authority is vested in the ~b 7, di y - Attorney General to " attend to the intenets of the United States in a suit pending in a court of the United States, or ._#- ggg m y_A
. ~. .
in a court of a State, or to attend to any other interest of the , _
,. United States." The United States maintains that ita _"
-. interest in representing its employees, pursuant to this
- authority, is twofold: first, since the conduct at issue was _ _ _ _ _.-
j performed in connection with federal employment, it may Un. 75CM 1 be important from a governmental standpoint to establish
- its legality; secondly, the failure of the Government to .
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undertake the expense of defending apparently lawful -
- actions in the performance of governmental duties could j -H
( have a detrimental effect upon the proper and vigorous ,
,- performance of assignments in the future. SENATE COMM. Lgf -
ON THE JUDICIARY, SUBCOMM. ON ADMINISrRATIVE PRACrICE ,_ 3 AND PaocEnURE, 95th CoNG., 2d SEss., STAFF REPORT ON ig a JurrIcE DEPARTMENT RrrEN'nON OF PRrVATE hECAI, 6 I. COUN5EI. To REPRESENT FEnEaAI. EMrImrEES IN CIVH. HAW $. . SUrrs(Comm. Print 1978). Federal employees are therefore provided with legal h.) 'M
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- counsel in order to protect the interests of the Govemment, AC-L .
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i f 714 Omozas sia art ct. c:. Louis R. Dsvis, w-not the individual interests of the employee. The Justice General Thomas S. . Department clearly has no obligation to a particular employee, and thus we find no merit in plaintiffs claim that he was entitled to counsel since his appearance before the grand jury related to his employment. Before Nicuor.a. Nor do the regulations so heavily relied on by plaintiff Ju4es. lend support to his c1=8m. Attorney General Levi's state. This civilian pay
- ment of policy, now codified at 28 C.F.R. 95 50.15 and 50.16, cross-motions for st
! set forth limits to the Justice Department's representation our namination c of federal employees and also to its policy of re+=ining Parties' oral argur private counsel at federal expense in certain instances. employment at the However, these limitations apply only to state criminal San Awania. Texz proceedings : - ? to civil and congressional pr~=ading As grant defendant's c plaintiff has made no request for reimbunement of attor- Plaintiff, a nur ney's fees for representation in either a civil, congressional, Veterans Ad'nin", or state criminal prty=ading, these regulations are inappli- Surgery at Audie . cable ' in San Antonio, We have considered plaintiffs constitutional and contrac- hospital's recovery tual arguments and they, too, are without merit. Defendant P aan a is guilty of no contractual breach, for it has long been settled that public employment does not give rise to a 8 "I contractual relationship in the conventional sense. Rutler v. , Pennsylvania, 51 U.S. (10 How.) 402 (1850); Urbina v. hearings to evalu United States,192 Ct. C1. 875, 881, 428 F.2d 1280,1284 Plaintiff, along wi- , staff, appeared be! ! (1970). its review, the PS rr is rurarroaz omozaro that defendant's motion for summary judgment is granted. Plaintiffs cross-motion is removed from all 3 - ' denied.The petition is dismissed. at the hospital. Since the hosp: reassignment of pl t care was not fez No. 375-79C. hv 1,1981 Coronado, decided bestinterest of eit' 4 Raymond E. , R.N.A. v. tration. 'Therefm g mitted a request fc p' . The United Statee\ procedumi defects and , n , g y7;g 3g, 3, Civilian pay; dismissa - denial of due p May 1,1981 the court entered W di d fr er: the follo Je Anderson, attorn of record, for plaintiff. ,/o *,, @ g Poucy. Southers & Lyons,Inc., of counsel. i i . l
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r 3 The United States Supreme Court - Opinions ! LAW WEEK . sse, . . s . . . . ..c. . n to m . - . , ! h OPINIONS ANNOUNCED APRIL 30,1984 The Supreme Court decided: ADMINISTRATIVE LAW-Sunshine Act LIBEL AND St.ANDER-Malice Informal international conferences, in which Federal Federal appeals court, when reviewing findings of actual Communications r==:~ie a subdivision and foreign tele. malice in libel and other cases governed by New York
-.... .. . ? cations administrations deliberate upon matters Times v. Sulhvan,376 U.S. 254 (1964), must enerose its not within subdivision's formally delegated authority, do own independent judgment in determining whether actual not " determine or result in joint conduct or disposition of malice was shown with convincing clarrty, and is not oSicial agency business" within meaning of Gwam.c.t in restricted by " clearly erreneous" standard of review under Sunshine Act, and thus are not " meetings" that must be Fed.R.Civ.P. 52(a). (Base Corporation v. r'== =.
beld in public under Act; moreover, inasmuch as such Union of United States,Inc., No. 821246) . Page 4513 conferences are not convened by FCC and their procedures - are not subject to FCC's unilateral control, they are not meetings "of an agency" within meaning of Act. (Federal Communications rammiesion v. ITT World Communica. tions, Inc., No. 83 371) . . . . . . . . . . . . . . . . . . Page 4507 . Full Text of Opinions . an. = =n : , M LAW AND PROCEDURE-Faise TI'DERAL COMMUNICATIONE COMMISSION rr Az , i PETITIONERS r. IIT WORLD COMMUNICATIONS, C. ET A!. 18 USC 1001, which prohibits knowing and willful making of false,6ctitious, or fraudulent statements "in any on ws:r or monARI'r0 '!EE IWrrED STATES CxEEr Or matter within the jurisdiction of any department or agency Arrr.AI.s rom Tar zusntrer or cxu.tacazA CIncurr of the United States." encompasses false statements made stynahm to Federal Bureau of Investigation and U.S. Secret Service in course of criminal investigations. (U.S. v. Rodgers, No. No.5-sn. Arroad Manh2t.1sst ht d Aproso,1sse 8 3-620) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Page 4510 The w- Am. s U. s. c. Iambth) minins shot amatinge af a ses. erst asaur be open to the pese. sessian smavv) dennes a mees. Ing" as *the deliberanens of at least 1:w sunbar of tedreidual agemey members reqmrod to take anzien en behalf of the agency where omsk do. Iberstises desarnene er reenhh the joint candmet er sbspostnen of es. sial mency bommen." Members of petwear Federal Canmumsatman EMPLOYMENT DISCRIMINATlON-Racist twwreca parnepne with thdr European and canadian seen. Dircrimination , i ,.paru in thee - o- +,ee % a ories of senter==en tmanded = l e.,ommea Jean plaanmg er misceaun'-- < h through es. Writ of certiorari to review decision upholding federal chance ofinformanen er rer:datory policism. In this case, thru Tcc -M.
' district court findings that, while black employee had some members wie essenarted a guerum of the recs Ta--------
commtuse. a subdiname af 3:n rec, snanded such maternem at
'"cr .
production problem.s, her disqualification as machine oper.
. which they were te enempt to persuade the European mar =aa to esoper.
ater was motivated in substantial part by her race, and that ste wi:h the rce in enceumsar sempeonen in the eserenas miseen. I employer's explanation for such disqualiScation was pre- m-- marasi. a_, - who at the that, along with another textual. is dismissed as improvidently granted. (Westing. sorparamon. were the only Amarurin sorporatises that pr.,used e,.r. house Electric Corp. v. Vaughn, No. 82 2042) Page 4523 mens *-2-----"- and who ePpened the entry of new - p-ne=s, f l l .
- NOTICL These opiniens are sabiert to fo. mal rension before pubissaisse in the rechemary pnnt of ibe United sistes Resorts. Reseers are ressessed NOTL where it is deemed alessrsbic, a sWbus (headasse) MD be
. se actif; taa Reporter of Duasions. Supreme Court of the United 56aias. released * *
- at the same the spanien is issuec. The fyltabus en sistutes ao
- uashrrgier, D.C. 20543, of any typographical er other formal errors. es part of the opinaan of the Camrt but has hers parse b) the Reperser af j erser that eerrecuens eney be snade before the preistmnary print goes to D===== for the sua.snience of the runder. Ususat Saases o. Derrumt
- p. ens La,mer. Ca. 200 U.s. J: . 337. 1 See: ion 4 ' " " * " " " * * - - * - ^ ' - " " *
-- $2 LW 4507 .
____ 1 :
.9 ,* g .' ~52 LW.4508 The Unhed Starcs LAW WEEK 5-1-84
- o - med a r=n==mrpathhs with the FCc ngumihr k to deshhn my shadve Process, h the hope that 'azabange af kM l I
hism to ==sedste wah smars er = thd h a asnemmes adght persande the F.uropean nations e cooperate wkh Oe ! d encouragmg - r'* -- h the 3mimon of a the ammten ma.
- r-a-- enesed that such sesensases we" FCC's abra swes se rces amherky and that. marie or, es samstene An telecannann,ie serviens.
agused the Consehad'* Pa==s5 m he held h puhue. ne Tcc denied ' the painha, n- r--d-- rrt warid e- s-- Inc., then m.d Res===t--em. gi h.g the entry of new ====p=de-s, initi-metin rederal Dutria caan. =i=n-ty anesar that ne rces messim. sted this utia4;m. First, respondents Sled a r="W-tisms weih seress ennals as the Ceasaharm Pnam won skra vres peddon whh the FCC conearning the Censuhadve Proemas the asumefa essharky and en hamn mannss d the commekame moedags b petition 2egnested that 6e FCC disciahn any pn sammesafermuthesanshine Accangeremenis. Th.Duina . intant to negonate wsth foreign governments or to bind h to a cars disumund the ahn veres met se Je d + - e-- a snands het er. speeznsnts at the ;_ c, arguing that such negadations 4., 4 ee rce to esepty with the samshine Am. ' t.g en me, sa5dnaed appeal the Deeria Ceares jedsmem and the rcCs d nial of were ashru 36ss the agency's antherny. , Further, the peti. en r=1===*r petinen, the cours of Appenh narmed the Duena tion contended that the Sunshine Act 2 ;. : the Consuha-caus runng that the sunshine An apphed to meenass of the consca. tive Process sessions, as t- t- " of the FCC, to be held in
** P""" h* """d
- D"'"" C'" d""'"3 d ** *k" '5- pubhe. See 5 U. S. C. 5552 bib).' The FCC denied the
" *d rau w: petition, and :==pand=== Sled an appeal in the
,'. ""w ',,",,mnhe , ,, imid est m rce had enm==ly dem d me Court of Appeals for the District of t'ah=am Circuit.
,,g.
- 3. mDetris coursbekedjuriedm:5 ever. . "a shrs viria F-"~""'*"+ ITT then Aled suit in the District Court for the einia. Emehse,e jurudmisen for mview of anal rec arders, such as the District of Cohnnbia. The- ?- ^.like; , / "srak-M;"=
FCCs danial of. ,
=' mismakes petinsa. lies W stanne in the makmg petition, contended (D that the agency's caers er Appenh. Lhissais mer na evade this aquiremum by m- with foreign of5cials at the f'aa="hdve Process were sikra i
" ' "
- 36s the agency's authorky and OD that future inestags of "Y"s"i l
*@ hs.a Nese,w.t e.1, Y.g"wks. - c - e r.iasht d .u,s.m.
e,
- se Co=*=ve Pr,ce= n-t e-form =
- u _ i amtseesha a edera the seem resarmeisen spen rec medan a did the of the Sunshine Act. h District Court 1tisadaned the tshrs )
raismaking petician that was daded by the FCC. girss count onjurisdictional grounds, but ordered the FCC to I
- s. The s.--u An dem a.t require that e-h 'ive Pneens es** comply with the Sunabne Act.8 h ~=~ wt='i+ ITT m'" w' sises be held h public.
sad the t'arnmiteinn s-M sa asund of The Court of Appeah Arthe District of r ahn.his Circuit esNxn. The An considered on aaneahl appeal the District Court's judg-gearms of a sabommen upon smaars not within the subdreimon's inri. anziy4 3.s t.damherny. suchdelibcrsoonshwfanyemeldmet desar. ment and the FCC's denial of the r"WW: petition. h mim er reseh in the joie sendna er disposroen d afscial asonry besi- District Court judstnent was afErmed in part and reversed in ass whhin the meaniar af the Am. Een, the 7"" part. The Court of Appeak aftrmed the District Court's e-.* - se the e '+-*= Pness. ssion did ase ennader er as r2nK that ne t===W. Act appEed C-
/ " - d6e h -
open a , % for ammaman emmer sunf6sansa, ha enly farmany dele. sultative Process. It reversed the District Court's diemi===1 g
- smud amhe hy. of the tahre 36es count,1.~.. . Noting that exclusive ja-tb> Nor were the ammons in goesnan a meeting *st an.asency .
wthin the ammmng of the sannhme Am. Thee-h'+n Praeses was risdicdon for review of final agency action hy in the Court af est son,emed by the rec, and ks i-.A wee not sub).e u the Appesh, that court held thsz the District Court nonetheless FCc's umDasen! meant. could entertain under 5 U.S. C.1703' a suit that alleged
-12. s. App. D. C. -- ,899 r. 2d 2219, nyerud sad remanded. &at FCC participation in the f'a=="% Process abould be Pown.a.J., den, red the opmma for awas c an. eejoined u iders wires the agency's authority. h case was reanded for consideration of the marzts of respondents' ishrtz 26s claim.
Jes:Icr Powr:.t. delivered the opinion of the Court. The Court of Appeals also concluded that the FCC errone-ensly had denied respondents' rMa-aWr petition. Conest-The Government in the Sm thne Act, 5 U. S. C.1552b, est wie hs af5rmance of Ge D2saict Court, the Court of Ap-mandates that federal agencies hold their meetings in public.
' peals held that the FCC had erred m aan-khr that the This case reqmres us to consider whether the Act applies 2 l
infortnal inte: national conferences attended by members of
'Secnon ISBRb) predes than the Federal Communications Comunssion. We also must de. "M*"h"'s (of a Taieral agney] aba!! not jens!y andna er shspese of tide whether the District Court may exercise furtsdiction whh this cnan. Ezeepe rm assacy businus aber man in -
ov r a suh that challenges agency conduct as tdtra t*es after P,ana hery mucar d an asury p the agency has addressed that challenge in an order
- reviIwahle only by the Court of Appeals. Sabascion (e) contains excepnama. Ga: an mot nierun: u & pruan case. I552b(aX2) de$nes inestag ac the derbesnans of at least the 6 of tadrvidual agency members re.
hmbers of pe:itioner, the Federal Communications Com- guir.d u take action en behalf dee asiner = tion such delibera: ions de. mission (FCC), participate with their European and Cana- isrmine y ruuh in the joint undnes er m r-*- of eencial asacy dian counterparts in what is referred to is the Consultative 8'"i'" "*** * ** "" "# ** '"d"d* """Y *8'"'7 *
- Process. This is a series of conferences intended to facEitate bended by a ceDesul body ==ar=--4 of two or more ladividual members hint planning of telecommunications facuities through an ex- . . . and any subdivision bredaseenzed 2 an on behalf des agency."
change of information on regulatory policies. At the time of ..:.he h caen had W r
- ever se t='i M- Aa ciaim unde-the conferences at issue in the present case, only three Amer- 5I:.S.C.1532b(hXn.
ican corporations-respondents ITT World Communications, 's U. S. C. I 03 provides in part Inc.. (Im and P.CA Gichal Cem=cnicatiens, Inc., and -ne form of p-oeveding for judicial nwer is W special s-ry nview - g Wefter". Ur. ion InterT.ation-MpftViced oversens telecom, p.oeeedeg relevant to the subjec ms:ter in a ecm speciSed by ::stute or, ir. W ah- or k. adequacy hac4 any applicable iam of legd actwo snu .ications se. m iees. Althcugh the FCC had approved ent.y ir.to de market by other ec=petitors European regulators y {,'."f P [ ';,,, ,,,,, _% had been re!uctant to do so. ae FCC therefore added the ce= e Appen was indequa.e u nndi =t= responde: s h see wiu./Jirer-ha ets wrvices te the agenda of the Con- wf=. at s. _ _ _
^ ~
n =ow ,e - m .
.J....
Sunshine An did me appy to the Consnhative Preases see. ggr
. sisms. Further, the saart found the reeard apetently lande- Seenan 552b@ af the Sunshine Ast requires that amnest.
qaste" to support the FCC's eendosion thm ===nda,-. 'n of least gg, g
& rCC, ; .am.s.est.d este agenir;tsy asse.
E asian af the rulemakmg pathion, as the District Court's ae. resah in b joie sandse w migh mon ne goestian af basiness? Under these [ = as -
,ene,w,,: - e g ; = *,,,, = ""
dispaskien the An
*i'*"P** .s'
%u,,
siErupur musiansbeheldin pub- , We grsIted r.d.d, to decide whether the O Distric Nd,*g 2 in &ese semies Court could exercise jurisdiction aver the uken wires ensim f g",Z "N. . by g552b(aM) mar , and whether the Sunshine Act apphes to sessians of the Cao. * .* * "'". -o y5552b(hk sahalve h* U. S. (1983). We reverse. A II We consider inhaDy the junsdictice of & Distric Court Carress in draftingthe Act's ,t. nam,m ac 4- ,,,, ' to eWain FCC accan as wars arsa. F.xchism fansdiction osmsed that the namimm== procnes a'm-s-- emanat Jbediscus-t h,;.e,. eendamed far review of faal FCC arders, such as the FCC's denial at antirely in the puhhe eye. aians [that) clartff issoas and expose var 7 tag views" are a me s .' i." r=ww- petition, lies in the Court af Ap- ==*==== y part of an /. work. See E. Esp. No. penh. 28 U. S. C. 523423);47 U. S. C. 5402(a1. Lttigants g 2.,,,c,, . may not evade these c... ic.; by w-G the Distrie so-354, at is cima. m Act's g - affectreely weald prevent such h and thereby kn-Court to eWain action that is the outcome of the agency's pair normal agency operations without d.;..;.,g .4p order. dera2h6 SeesePort Tr---qf'3aston
*". 400 U.AfarineS. 62,69 Terminal 0970); Asa'n Whis. v. Re- pohlicbenefts.' Secnon 552b(aXI)therefore Emits the neySatienc2 Jank v. Aank qfNene 'Oriaans,379 U. S. 411, apphestian to meetings *where at Isast a spiaram of th 41S-422 0 965). Yet that is what i-g=- --= bare sought to ey's v=mbs . . . conduct er dispose af af5cial agency busi-do in this case. In _-+-+-~. the aa-mW fDed in the Dis- mea " S. Rep. No. 94-354, at 2.
trict Court raised the same issues and sought to enforce the . 'Diree C '=-a the amnherwho am,wt.4 the Cao a quaram of the same restrictions upon agency condne as did the petition far anhauve Process sessions, did not ='='h*= h three anambers we.e, ral--=W- that was denied by the FCC. See,p.1, suprc.' aeven. member r = mi=d,-* m==,i =+- re,,,m,4ee The .yr..edate re-A-. for obtaining fadicial review of boweve, a quarmn af the T-ta-the agency's 1- W of these issues was appeal to thebehalf That C-ni~ is a *sd411.ica . . . authorised to act on Court of Appeals as provided by statuta. the agency? h cean-f=d- had delegned to the
.e h L. An antharises an action for es==mbem., r t to 1155(d)G) of the es n ,,,,,,,1, +.s, The C + Act,47 U. S. C.1255(d), the power to approve ap3 =*t --
review of fmal agency action in the Distnet Court to the er.
- tant that other sesentary c.a for review are inade- far common carrier serr*=tirm ' See 47 CFR 50.225 e=*>nd that OSED. h Sunshine Ae app 5es to such a sohdivision as quata. 5 U. S. C.15 703, 704. R.g- ~ ' =
these provisions conte furi=Au*irm in the present suit be. weD as to an entire agency. 1552b(aX1). ,mi, tt, cause the record developed upon m rida ation of the rule- It does not appear, however, that the aTat. C-~4-e engaged at these ===de-'= in deliberstaans Iths) makmg p titirm by the agency does not enable the Court af Appeak fairly to evaluate their t.2tra wires cisim. If, how- dete=mne or resuh in the joint condae
- or di - =4-i = af ever, the Court of Appeals fknds that the ad-mi=*retrve record is inadequate, it may romand to the agency, see Ear- * ""I ""'""Ithe As a h. .
risor. v. PPG Industnes,Inc.,446 U. S. 578,593-594 0980), g , or an same c=hances refe the case to a specal masse, - a: han week berce'e'the m.ettag.1:a time, p e and 4
- see 28 U. S. C. I::347(bX3). Indeed,in the present case,the si nar and whether a wc he open er eh d ssan,(em. Ta sh d Court of Appeah has re:nanded the case to the agency far ===* rs, the agency's smummelmust puhEcty eartf*y t f=rther proceedings. We canchade that the Dtstnet Cc=rt "'- pumha cicours. 5552b(f)ck Most ahead ase lacked jt=isdic ion ove respondents' ultre wires claim. Y,,j,,,a hagunge reeeas s - - ,5 tant preasely to denne the knuted seope of the ====me'a voquEssents. See -*
*The fadmg of the Ceart of Appemb tha: the ad===asdve recurd was remeraDy. E R. Rep. No. 96 aso. Pars
- a:14 QS76L Ter example a '
~
b: adequate to supper.the TCCs dema! of a pennon for rul==r er en the Senate subscened the term *dsEberanams" far the previously proposed assue of the scope of the TCC's as:har:y to negotiate is aos before the tarma- manen@y or =4= h ====mmr=*ssw
- E. R. 12656, 94th Cours,
* *I1*f arges tha: the mitra wires m'ir un5he the pea:aon for Cang,2d 52011a) af76) in order sess.1552b(aXD to"ezstude snany A= ar
=-agasbermg.* S. 5. 94th C which are inimuual
. ral-==Wr focuses en pass rn:bar than fu:gre agency condas. It is tree in ascars." 3. Rep. 96-354, at 20; see sf., at 33. Sh=Garty, earlier ver-tha: the --Nsi -in the Ihst-ict Caer saugtc. In asktiden to prospecsve mises of the Ac had appEed to sary agency d -=-aa. tha:"anneurn() the reLef, a declaranon that the f*=====aa had wie stad the Adnumstruers, join
- senduct er dispasman of agency beamsma,* E. R 11E56, emp 9 Praesdare Ac. See App.71. Ba:the g svunnenafboththejudacialease. 5 53kax:h The Act now app 5ss only to de5beradens that *dasermane er plair.t and the pettuan for ran==ahr was to regiare the agency se ==ad=n ,esuk sa* the candoc of *@eial agencyi
- The intant of the revi.
esture mesmans en the terens that ITT proposed. ladeed,k seems gass. aion sisar'y was to pemh %~i d'=aaa=m among agency mesehers. neamble wbcher a esmplace that sought sedy s declarataan tha: past son. See 1:: Cons. Rac. 25.*74 as76) trumarks of Rep. Tasam. due was unlawfW weald present to the Dis:rict Cours a mee er anstro.
-=a Cf. Asema 'Sinee the Consuhathe Pruesas m===== st imune hurt.' held in CIctaber verry ever which it esuld esereine subien ma: tar jer=d 2375 the ("ma-=a's mammbership has been redueed to tve. Puh. J I.ye las. Co. v. NaasertA. 300 U. S. :::"I,240-242 0937). In any even:. No. 3" 05lI. 21:. Y,1501(bh 96 Sta: 305 (effective Jary 1. issst even if the question of the lantness ef:he ageriry's pas esadoc: were the 'r"-- aaa carriern "kn interstate er foreign =======. =* by www er sentrs! elemerc of respondem's judaczal complaast. the District Court asser radac* o *radao trana,amm.aa of energy," 47 U. S. C. I 153:h). Enust obtain the doc:rsne of prsmaryJurisdic: ion shodd have distrusaed the e.w-Nar - free the Chea a cer=Scase of pub:le convenicae, e aseenacy before sa respanoents codd have cha:;enged the agusers past conduct by swnan nooc wr.ar cons.rucson er opera: ion of =A^mana! --- ne.-== linsa.
before the agency for a declaras.ory ru.'.:.ng. C CTF. I 1.* n953L See Was. C C. S. C. I:lt Peri =:.s snus: be obtained also fe- eens::.ncnen of radio an, Na:umef Ece. 2 9 U. S.. at CL c1. re,Is.rt Confe,ence v. ITnued br==a,mm ng :a:ians. C U. S. C. I319. Sacies. 3c U. S. 3 0. 374. Er* G51ll1 . . .
-~ - -
" ' - * - - v---we-,y _ _ . _ ._
i' The Unbed Scares IAW WEEK 5-1-84 Lv 4510 a , aial agency hada * 'nds sisatory language sentem. Tala===rmmtentions f%==h at the Consahntive Preenes sessinsdidnotconsidererasupon #-="foremannom plates d==d= that "efectively predeterndne eScial se- '" ="= 4- only formaty ru % - tions." See S. Rep. No. 95-36(, at 19: acud W., at 18. carrier *** we emodode thatthe sessions wm nott "-d within se Such dis-d- amst be W=67 focioed am dires.: sramig af the Sunshine Act.
- I proposals or issues as to esase or be Ikely to esame the indi.
- vidas! pardd=*4=r members to form r===anahir Arm posi- - 3 tions regarding matters pending or Ekely to arise before the The C=a- *=+ive Process wm ne convened by the FCC agency." R. Berg and S. "5~= An into re Guide and its r ,;a L. were not schjee; to the FCO's - r?at-rg to the Casnt b the B=h Act 9 (1978)(hereinafter comro!. The sessions of the C=~*='ive Proeses thedore Insur.h Guide)." On the cross motions .for summary j
Jodgment, however, respondents eBeged neithe the the are not E---" g; "of an agenef within the meaning 'f
' *=e formaDy acted upon.spahd= for cerM~=H= 5552b(b) af the R=h Ae. The Ac , Jb.s proco-C dures for the agency to inBow when it behis meetags and at the Cons =hative Process a-.=i- nor that those ==== partienisdy whenit chooses to close a ---* r- Sea supra, resched h trm p~id= on partmen!sr matters pendmg or
+"-e." Rather, tie - note E. These provisions presuppose that the As applies i likely to arise before the C only to meetzngs the the agency has the power to candne I l ted--
providedgenealbackgroundinformationtothe t' according to these y A And .# ='= of the As to i es and permitted them to engage with their foreign counte. me= " 5 not unde agency control would restrie the types of parts in an exchange of news by which 6-4d= abendy meetmgs that agency = h s coold attend. It is apperum rasched by the Ce - i d= could be i+d--- '+d As we that Congress, in enactingS m.a:::: for the agencfa can. have noted, Congress did not htend the S-W Act to en-due ofits own w-Han did not ~+-d-+- as well such a
- compass sisch discussions. broad =^=+-w+ive w.hd. upon agency processes. See 3.
The Coes of Appeals did not reach a contrary resuh by Rep. No. 95-354, at L . fmdag the the C-i d=- s wm delibes:mg upon mat. tv . to wiein acir femaDr delegeed ansority. sehe,se . . coe.efma co= ee membm ~~s- e se se=rons yo, ,,e ,,,, ,,, ,;e ,,,c ,e ,3; , ,,3,, e ,,,,,
= ' ""-" ==hertry. =at '===5y d*r=d *a =r=r= e Appesa and remod se case fe feser gm ,m.
in ^===s- on behalf of the C--- The coet then sistedwhh als @
~
M'=**=r-
.'e
~ ~7 *inthe ' * ' i *E e' 3 ~os t~sg" "ey' M $* E ~
e=w=> phyud)=stegralr*ase C a "-:8 PoEcy- AI.urr c.I.Ausu.JR ,u minen N'o ra!,waan o.C. xx z. m $~. ca rauuCaun r. wzuon. _:.5
. mam, pr- - essr.u,=2x2. R.05Eh h'*'
We vieT the Act diferendy. It apphes caly There a sub- LEO # Departasm: Anerarys. BRUCE E. FEIN. FCC Gemural Quema:. DANIE1. dmzion of the agenev deEberates tmen "*" ". *** ='t M. ARMSRONG. Aamociate FCC Geral Coms!, and C. GREY PASE. Y m snat suncmsion's formaDv delerated memty,te,,,t,ake JR. Ftr.anarney,with he en the bricO far -- - - GRANT S.1.EWIS.
~55c:al acnon for 1.be age.nry. __ Unde the r** "5 of the New Yart. N.Y. (JOHN S. KINZEY. MARY JO EYSTER. CHARLES C.
M M MARD A.M g,, Cw. a. gp any group of membes who _ news or ratheed informa mn on agency bnc,=e awy could be viewed as a "subdmsion . . . authorized to act on be-half of the agency." The tem subdmsion"itselfindW'== agtney me=bes who have been := der: zed to excesse for- N*. m-emo maDy delegated anthority. See laterpretive Guide -3. f Mc eove, the mere expa=sive view of the tem *srAL-sa" l UNITED SMM. PETITIONER v. adopted by the Coet cf Appeals wo:Id reqcre publie atten. LARP.Y WAYNE RODGERS dznee at a host of info: nal convesations of the type Con-
~
g-ess undestood to be necessary for the efecive r=8e of oN wn= or EA --n D com or m,g agency business." In any efe=t, it is clear that the Sunshme Ac: does not extend to deHbes: ions of a quor=zn of the subda- 3 g ,_ w , vision upon r-s-s not widin the subdivision's formaDy del- , ega:ed a=theri:y. Such deEberations lawhDy could not "de- ==a indicted far makmc fa).e - --- to m radera13 .. te=me or resuh in the joint condue or disposition of c5cial Basrada' ! ruan of Izrveciganan m and the Unhad Sutes Secre Semes,in vi...c$. - g.gtney business" widin the meaning of the Act.," As the e:a:ien of18 U. S. C. I 2001, which makes 2 a crime :..~- giy and wm. i fatt to make a false r me==-' *m say asner wthin & faria6 cam er
-The o5ee of the chah' man of the'A,.- A c=-'acnee of th* say depamnem ar arener of the Unk.4 Smaas.- sesy.u adadt.
Utned S:stes prepared the insarpre=ve Gcide at Congress's rquec. tadh had lied in teI:ing the TEI that his wife had beenw'=p=d when, ( in fac. as & TBI dcenn:ned spe invesnesmer., she had left him vei. I s:::b(s),and aftar--amee-- with the a5ected ' agenaen. See unm:07, and in also ta!!ing the Secret Semme the his wtfe was inva}eed Ire.erpretive Guide, at v. in a plot to ========u the President.when,in fac. the Secrus Sereism,
- Memorsadurn in Support of Flam:f "a h- for Samanary Judgment aftersress.lganns W ebsrge and span lacs:ingthe wife. was told by her and in Oppassuon to Defendarc's Motion to Disanas or for SammaryJudg- that see had lef t home to get away frtan r-=paada'* ' Die District Cours me=in No. so 04c fDC DC) pp. 6-1L 4&.50; Plamst!"s Reply Memarna.
3 =ad rurpende=t's monen to distnana the taE=v==== em & grounda d=: h Seppert of Pla:nti""a Motion for %===y Juds nent, pp. D :7. ths-W irrvestigancas were anot amaners "vuhn the for=A -
- of the
[
*n.is peint is made by & Memorar&m smaeus curiae anh' d* =d to respec=ve agcees. as that pt:rmae is need in 11o01. ' Die Coc-s of Ap.
the Co.: . by & Arnerican Bar A +- "The . . . decision for the peah a.*.*_-ned. reinne on tu decision in a prior saae that hmhed b Cc: -. .cf Appeab] piares . . . scences 5 an ne *-We posinen. iU)nder the tem")cm4ccen* an used b I 2001 to "W power to make anal o- hbd. cc:: 's de= sten, [ageney] me nbers insy not meet wth perse=s frte oc- hg6ee "* sin W agency ta discsas any macar w:thm the c5 cal ccmcarn of the Such Heldt The lanr.aage of i 20o1 amarty **v'=p== crbnimal invesugansens agency e.: hoc ecr=pMag wth the p,mmons o'the Sethine Act. a res;0: wedd have a prenoanced (and deleterious) efect on h tasaraccon h by & TBI and Sea c Se-vies. and notMr.c h & W
'--- a- ..- . a.u' the oublic. . . .* Mc=.. at 5-L haste y indicates that Cong uns intended a mere rus:rsr:ive reach for the
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