in 1958. There a direct appeal was taken to the Court of Appeals from an award made on applications for a television construction permit. The appellee, Federal Communications Commission, moved to remand the case to the Commission alleging that since the filing of the appeal, charges had been made in the course of a Congressional investigation that one of the Commissioners who had participated in the proceedings before the Commission, but who had since resigned, should have disqualified himself. The Court, in acting on this motion, ordered remand to the Commission with instructions to hold an evidentiary hearing concerning the possibility that the award theretofore made may be void ab initio or voidable, and directing that the Commission make findings, including whether any person influenced or attempted to influence any member of the Commission in any manner whatsoever, except by the recognized and public processes of adjudiction. In condemning ex parte influence, the Court, after the evidentiary hearing had been held, used this language:
'Surreptitious evidence to influence an official charged with the duty of deciding contested issues upon an open record in accord with basic principles of our jurisprudence, eat at the very heart of our system of government -- due process, fair play, open proceedings, unbiased, uninfluenced decision.' WKAT, Inc. v. F.C.C., 111 U.S.App.D.C. 253, 296 F.2d 375.
Later in the same year in WORZ, Inc. v. F.C.C., 106 U.S.App.D.C. 14, 268 F.2d 889, there was similarly an appeal from an order of the Commission by a protestant on an application for a construction permit for a television channel. It appeared from the testimony before a subcommittee of Congress that while the case was pending before the Commission certain representations were made to a member of the Commission regarding the qualifications of one of the applicants, and the Court held that the case should be remanded with instructions to hold an evidential hearing to determine the nature and source of all ex parte pleas and other approaches made to the Commissioners while the proceedings were pending.
Also in 1958 in Massachusetts Bay Telecasters v. F.C.C., 104 U.S.App.D.C. 226, 261 F.2d 55, the Court directed an evidentiary hearing to determine, among other things, whether any person or persons influenced or attempted to influence any member of the Commission in any manner whatsoever except by the recognized public processes of adjudication. In this case the Court stated that 'improper influence, if established, going to the very core of the Commission's quasi-judicial powers is certainly critical.'
In 1959 in Sangamon Valley Television Corp. v. United States, 106 U.S.App.D.C. 30, 269 F.2d 221, the Court remanded the case to the Commission when it appeared that ex parte presentations were made to various members of the Commission and letters were written to them which did not go into the public record, giving those opposing the views set forth in the letters no opportunity to question the contentions raised in the letters. The Court held that private approaches to members of the Commission vitiated its action and the proceeding must be reopened.
In United Air Lines, Inc. v. C.A.B., 114 U.S.App.D.C. 17, 309 F.2d 238, the court upheld the Board's conclusions that violations of principles of practice did not result in prejudice or deny a fair hearing where the most important communications were placed in the public file and were available to the petitioners if they chose to look.
See also Berkshire Employees Ass'n Etc., v. National Labor R. Bd., 121 F.2d 235 (3d Cir. 1941).
These cases support the conclusions reached herein. However, it would be inappropriate and futile to follow them procedurally and remand this case to the Board for investigation. To do so would require the Board to investigate itself, as it has no special examiner to make a factual determination, as suggested by the Court of Appeals; and further investigation is also unnecessary as that has been done by the Court, in the taking of testimony to determine whether this decision should be nullified.
For the foregoing reasons, I am of the opinion that the decision of the Board in this case should be held to be null and void on the ground that the plaintiffs were denied a fair and impartial hearing and that the case should be remanded to the Board for a new hearing. It would likewise be inappropriate and futile for this case to be reheard by the present Board which has already decided it and which has already been under the influence of the contacts referred to. This presents an awkward administrative difficulty, but it does not appear to be insurmountable. A new Board could be created solely for hearing this particular appeal by the designation of two others to replace the two government members who may be designated at the discretion of the respective Commissions, and by the requested resignation of the two non-government members who participated in this appeal and the appointment of two others to replace them. There is now one new member of the Board who did not participate in this appeal who has replaced one of the non-government members who did. This procedure would result in a fresh new Board to hear this appeal. I would apprehend no difficulty about such designations and resignations for such hearing, if it is made clear to the replacements and to those who are replaced that it is for that purpose only and that as soon as the hearing is held and the case is decided the present Board would be reconstituted.
I should add, in order to avoid any possible misunderstanding, that there is no implication in the foregoing that the State Department or any other branch of the Federal or District Government should not be permitted to present its views at this hearing. It has the right and duty to do so when it feels the public interest is involved. But it should proceed by the recognized public processes, either verbal or in writing, and not by secret, covert, ex-parte contacts.
In view of the decision herein, it is unnecessary to reach the other points raised by plaintiffs. Counsel will submit on notice judgment in accordance herewith.