Portland Audubon Society v. The Endangered Species Committee

We consider here a motion filed in a most important and controversial case. The motion itself raises a significant issue of first impression. In the underlying proceeding, petitioners Portland Audubon Society et al. (collectively "the environmental groups") challenge the decision of the statutorily-created Endangered Species Committee ("the Committee"), known popularly as "The God Squad", to grant an exemption from the requirements of the Endangered Species Act to the Bureau of Land Management for thirteen timber sales in western Oregon. The environmental groups complain of numerous procedural and substantive flaws in the Committee's decision.

In the motion before us the environmental groups seek: 1) leave to conduct discovery into allegedly improper ex parte communications between the White House and individual Committee members; and, 2) the appointment of a special master to conduct the discovery process. The Committee opposes the motion on the ground that our review must be limited to the record before the agency and that supplementation of that record on appeal would be inappropriate. The Committee argues further that ex parte communications between the White House and its members are permissible under applicable law, and therefore, there is no legal justification for any inquiry into whether the alleged communications occurred.

We agree with the environmental groups that ex parte communications between the White House and the God Squad are contrary to law. We further hold that a record that does not include all matters on which the Committee relied does not constitute the "whole record" required for judicial review and that the failure to include all materials in the record violates the Administrative Procedure Act ("APA"). However, we conclude that the special circumstances that would warrant discovery while a matter is pending before us are not present in this case and accordingly deny the specific relief sought by the environmental groups. Instead, we remand the matter to the Committee for an evidentiary hearing before an administrative law judge ("ALJ") (and for such other procedures as the ALJ may find necessary) on the questions whether any improper communications with the White House occurred during the Committee's decision-making process, and, if so, what remedy is required. The ALJ shall make such findings and recommendations as he or she deems necessary or appropriate in order to aid the Committee and this court in our further handling of the underlying proceeding.

The Endangered Species Act requires that "[e]ach Federal agency shall ... insure that any action authorized, funded or carried out by such agency ... is not likely to jeopardize the continued existence of any endangered species ... or result in the destruction or adverse modification of [critical] habitat of such species." 16 U.S.C. § 1536(a)(2) (1988). However, if the Secretary of the Interior ("Secretary") finds that a proposed agency action would violate § 1536(a)(2), an agency may apply to the Committee for an exemption from the Endangered Species Act. §§ 1536(a)(2), (g)(1)-(2). The Committee was created by the Endangered Species Act for the sole purpose of making final decisions on applications for exemptions from the Act, § 1536(e), and it is composed of high level officials.1 Because it is the ultimate arbiter of the fate of an endangered species, the Committee is known as "The God Squad".

The Secretary must initially consider any exemption application, publish a notice and summary of the application in the Federal Register, and determine whether certain threshold requirements have been met. 16 U.S.C. §§ 1536(g)(1)-(3). If so, the Secretary shall, in consultation with the other members of the Committee, hold a hearing on the application (which is conducted by an ALJ), and prepare a written report to the Committee. § 1536(g)(4); 50 C.F.R. § 452.05(a)(2) (Oct. 1, 1991). Within thirty days of receiving the Secretary's report, the Committee shall make a final determination whether or not to grant the exemption from the Endangered Species Act based on the report, the record of the Secretary's hearing, and any additional hearings or written submissions for which the Committee itself may call. § 1536(h)(1)(A); 50 C.F.R. § 453.04. An exemption requires the approval of five of the seven members of the Committee. § 1536(h)(1).

On May 15, 1992, the Committee approved an exemption for the Bureau of Land Management for thirteen of forty-four timber sales. It was only the second exemption ever granted by the Committee.2 The environmental groups filed a timely petition for review in this court on June 10, 1992.3 The environmental groups have Article III standing if for no other reason than that they allege procedural violations in an agency process in which they participated. Cf. Lujan v. Defenders of Wildlife, --- U.S. ----, ---- - ----, 112 S.Ct. 2130, 2142-46, 119 L.Ed.2d 351 (1992) (Article III requires that plaintiff filing suit under the Endangered Species Act possess more than a "generally available grievance about government" in order to have standing).4

Both in their petition and in this motion the environmental groups contend that improper ex parte contacts between the White House and members of the Committee tainted the decision-making process. They base their charges on two press reports, one by Associated Press ("AP") and one by Reuters, and on the facts stated in the declaration of Victor Sher, lead counsel for the environmental groups. Published on May 6, 1992, the AP and Reuters accounts reported that, according to two anonymous administration sources, at least three Committee members had been "summoned" to the White House and pressured to vote for the exemption.5 In his declaration filed August 25, 1992, Sher stated that his conversations with "several sources within the Administration," who asked for anonymity, revealed that the media reports were accurate, and further that the pressure exerted by the White House may have changed the vote of at least one Committee member. Sher declared that his sources indicated that, in addition to in-person meetings, at least one Committee member had "substantial on-going contacts with White House staff concerning the substance of his decision on the application for exemption by telephone and facsimile, as well as through staff intermediaries." He also declared that he had learned from his sources that White House staff members had made substantial comments and recommendations on draft versions of the "Endangered Species Committee Amendment," a part of the Committee's final decision.6 For the purposes of the present motion, the Committee neither admits nor denies that these communications occurred.

The environmental groups request three types of discovery: (1) interrogatories and requests for production of documents identifying and relating to the Committee's "decisional staffs" and communications between those individuals and persons in the White House regarding the Committee decision, (2) subpoenas for documents from the White House on the same subject, and (3) depositions of persons identified in response to (1) and (2). They maintain that the requested discovery could be completed in about thirty days. Discovery requests have already been served on both the Committee and the White House.

We heard oral argument on the discovery motion on September 23, 1992. To decide what action to take with respect to the motion, we must first determine whether the ex parte contacts concerning which discovery is sought would be impermissible if they occurred in the manner alleged.7 If so, we must then decide what relief should be afforded.

II. Ex Parte Communications Between the Committee and the President and Members of his Staff are Prohibited by Law.

This case raises two important and closely related questions of statutory construction: 1) Are Committee proceedings subject to the ex parte communications ban of 5 U.S.C. § 557(d)(1)? and, 2) are communications from the President and his staff covered by that provision? For the reasons that follow, we answer both questions in the affirmative.

A. The Committee's Proceedings are Subject to the APA's Prohibition on Ex Parte Communications.

The environmental groups contend that the Endangered Species Act incorporates by reference the ex parte communications ban of the APA8 and forbids ex parte contacts with members of the Committee regarding an exemption application. The ex parte prohibition is set forth at 5 U.S.C. § 557(d)(1).9 Section 557(d)(1) is a broad provision that prohibits any ex parte communications relevant to the merits of an agency proceeding between "any member of the body comprising the agency" or any agency employee who "is or may reasonably be expected to be involved in the decisional process" and any "interested person outside the agency."10 5 U.S.C. §§ 557(d)(1)(A)-(B); see North Carolina, Envtl. Policy Inst. v. Environmental Protection Agency, 881 F.2d 1250, 1257-58 (4th Cir.1989) (interpreting § 557(d)(1) broadly "to include anyone who was involved in the decisional process but is no longer an agency employee or has recused himself or herself from further involvement"). The purpose of the ex parte communications prohibition is to ensure that " 'agency decisions required to be made on a public record are not influenced by private, off-the-record communications from those personally interested in the outcome.' " Raz Inland Navigation Co. v. Interstate Commerce Comm'n, 625 F.2d 258, 260 (9th Cir.1980) (quoting legislative history).11

It is of no consequence that the sections of the Endangered Species Act governing the operations of the Committee fail to mention the APA. The APA itself mandates that its provisions govern certain administrative proceedings. See, e.g., Marathon Oil Co. v. Environmental Protection Agency, 564 F.2d 1253, 1261-64 (9th Cir.1977); West Chicago v. United States Nuclear Regulatory Comm'n, 701 F.2d 632, 641 (7th Cir.1983) (collecting cases). By its terms, section 554 of the APA, which pertains to formal adjudications, applies to "every case of adjudication required by statute to be determined on the record after [the] opportunity for an agency hearing." 5 U.S.C. § 554(a); Girard v. Klopfenstein, 930 F.2d 738, 741 (9th Cir.), cert. denied, --- U.S. ----, 112 S.Ct. 173, 116 L.Ed.2d 136 (1991). That section also provides that any hearing conducted and any decision made in connection with such an adjudication shall be "in accordance with sections 556 and 557 of this title." 5 U.S.C. § 554(c)(2).

In other words, by virtue of the terms of APA § 554, sections 556 and 557 are applicable whenever that section applies.12 E.g., West Chicago, 701 F.2d at 641; Gallagher & Ascher Co. v. Simon, 687 F.2d 1067, 1072 (7th Cir.1982); Marketing Assistance Program, Inc. v. Bergland, 562 F.2d 1305, 1309 (D.C.Cir.1977); see also Marathon Oil v. EPA, 564 F.2d at 1262 (if proceeding is adjudicatory in nature, it requires the special protections of APA sections 554, 556, and 557). Accordingly, the ex parte communications prohibition applies whenever the three requirements set forth in APA § 554(a) are satisfied: The administrative proceeding must be 1) an adjudication; 2) determined on the record; and 3) after the opportunity for an agency hearing.13 The question is, therefore, are those three conditions met here? We find our answer primarily in the language of section 1536(h)(1)(A) of the Endangered Species Act.14

We conclude that the first requirement of APA § 554(a) is satisfied. Certain administrative decisions closely resemble judicial determinations and, in the interests of fairness, require similar procedural protections. Marathon Oil v. EPA, 564 F.2d at 1261. Where an agency's task is "to adjudicate disputed facts in particular cases," an administrative determination is quasi-judicial. See id. at 1262 (internal quotations omitted). By contrast, rulemaking concerns policy judgments to be applied generally in cases that may arise in the future; it is sometimes guided by more informal procedures. See id.15 Under the Endangered Species Act the Committee decides whether to grant or deny specific requests for exemptions based upon specific factual showings. Thus, the Committee's determinations are quasi-judicial. Accordingly, they constitute "adjudications" within the meaning of § 554(a).16

The legislative history of the Endangered Species Act confirms our conclusion in this respect. The Senate committee report accompanying the 1982 amendments to the Endangered Species Act stated that "the Endangered Species Committee is designed to function as an administrative court of last resort." S.Rep. No. 418, 97th Congress, 2d Sess. 17 (1982) (emphasis added). The Report states that the Committee's decision will be based, in part, upon a "formal adjudicatory hearing." Id. at 18. The Report also makes clear that the Committee's duty is to be the ultimate arbiter of conflicts that the parties involved have been unable to resolve. Id. at 16-17.

The language of the Endangered Species Act explicitly meets the second requirement of section 554(a). Section 1536(h)(1)(A) of the Act mandates that the Committee make its final determination of an exemption application "on the record." Cf. Marathon Oil v. EPA, 564 F.2d at 1263-64 (even where statute does not specify that agency determinations must be made "on the record", if hearing is required, then nature of administrative proceeding itself may require application of APA sections 554, 556, and 557 nonetheless). No further discussion is required on this point.

It is equally clear that the third requirement of APA § 554(a) is satisfied here. Section 1536(h)(1)(A) of the Endangered Species Act also requires that the Committee's final decision be "based on the report of the Secretary, the hearing held under (g)(4) of this section [ (the Secretary's hearing) ] and on such other testimony or evidence as it may receive." 16 U.S.C. § 1536(h)(1)(A) (emphasis added). Wherever the outer bounds of the "after opportunity for an agency hearing" requirement may lie, we hold that where, as here, a statute provides that an adjudication be determined at least in part based on an agency hearing, that requirement is fulfilled.17

Because Committee decisions are adjudicatory in nature, are required to be on the record, and are made after an opportunity for an agency hearing, we conclude that the APA's ex parte communication prohibition is applicable. This result is similar to the one we reached in a case involving formal rulemaking, Central Lincoln Peoples' Util. Dist. v. Johnson, 735 F.2d 1101, 1119 (9th Cir.1984). There we held that because Congress required rate decisions under the Pacific Northwest Electric Power Conservation Act to be made on the record after a hearing, the procedural protections of the APA were triggered, including the ban on ex parte communications. In that case the applicable provision was APA § 553(c), which, in language almost identical to that contained in § 554(c)(2), provides that "[w]hen rules are required by statute to be made on the record after opportunity for an agency hearing, sections 556 and 557 of this title apply." (emphasis added). Similarly, the pertinent language of the Endangered Species Act, section 1536(h)(1)(A), parallels the language of the statute that we considered in Central Lincoln.18 Thus, the statutory language of the Endangered Species Act, like that of the Pacific Northwest Electric Power Conservation Act, is sufficient to trigger the APA's ex parte communication prohibition.19

Neither the government nor the Intervenors Oregon Lands Coalition, et al., ("the lands coalition") has directly responded to the argument that because section 1536(h)(1)(A) provides that Committee determinations are adjudications made on the record and based upon a hearing, APA § 554 applies, and ipso facto, so does the ex parte prohibition of § 557(d)(1). Instead, they contend that because one part of the regulations (50 C.F.R. § 452.07(d)) expressly states that "[t]he provisions of 5 U.S.C. § 557(d) apply to the [Secretary's] hearing and preparation of the report," while another part (50 C.F.R. § 453), which relates to the Committee's deliberations, fails to contain any explicit reference to those provisions, the Committee's deliberative process is exempt from the APA's ban on ex parte contacts.20 For several reasons we do not agree.

First, the inclusion of a specific reference to the ex parte communications prohibition of 5 U.S.C. § 557(d) in the regulations governing the Secretary's hearing was necessary to clarify an ambiguity in the Endangered Species Act. The Secretary's hearing is governed by 16 U.S.C. § 1536(g)(4), which, in turn, provides that sections 554, 555, and 556 of the APA (except sections 556(b)(1)-(2)) are applicable to such hearings. There is no explicit mention of section 557 in 16 U.S.C. § 1536(g)(4). Although as noted supra, section 557 always applies when sections 554 and 556 do, as a matter of administrative law, the omission of section 557 from 16 U.S.C. § 1536(g)(4) could conceivably lead to considerable confusion. The reference to APA § 557(d) in the part of the regulations implementing subsection (g)(4) serves to eliminate that confusion and remove any doubt as to the applicability of the ex parte communications prohibition to the proceedings before the Secretary.

By contrast, there is no reason to mention section 557(d) in the part of the regulations concerning the Committee's proceedings. The Committee's action are governed by section 1536(h)(1)(A). No problem comparable to that inherent in 16 U.S.C. § 1536(g)(4) exists with respect to section 1536(h)(1)(A). The text of the latter section, unlike that of the former, does not mention some of the applicable APA provisions but omit section 557; rather, it does not mention any of the applicable APA sections; thus, no ambiguity arises on the face of the part of the statute governing the Committee's proceedings and no curative provision in the corresponding part of the regulations is necessary.

Second, it would make little sense to read the omission of section 557(d) from part of the regulations governing the Committee's proceedings as a license for Committee members to engage in ex parte contacts. The Endangered Species Act as well as the applicable part of its regulations are intended to ensure that all Committee meetings, hearings, and records are open to the public. 16 U.S.C. § 1536(e)(5)(D); 50 C.F.R. §§ 453.04(b)(4), 453.05(e). Notices of all meetings and hearings must be published in the Federal Register. 50 C.F.R. §§ 453.04(b)(3), 453.05(f). If the Committee determines that written submissions are necessary for it to reach a decision, its invitation of such submissions must also be published in the Federal Register. § 453.04(a). The transcribed proceedings of any Committee hearings are to be available for public inspection. § 453.04(b)(5). The Committee's final determination of an exemption application must be documented in a written decision, which itself must be published in the Federal Register. § 453.03(b).

The public's right to attend all Committee meetings, participate in all Committee hearings, and have access to all Committee records would be effectively nullified if the Committee were permitted to base its decisions on the private conversations and secret talking points and arguments to which the public and the participating parties have no access. See United States Lines, Inc. v. Federal Maritime Comm'n, 584 F.2d 519, 539 (D.C.Cir.1978). If ex parte communications with Committee members were permissible, it would render futile the efforts contained in the remainder of the regulations to make the Committee's deliberative process open to the public. Therefore, we conclude omission of a reference to the APA's prohibition against ex parte communications in the part of the regulations governing the proceedings of the Committee does not reflect an intent to allow such contacts to occur.21

Third, the Committee is, in effect, an administrative court. See S.Rep. No. 418, 97th Congress, 2d Sess. 17 (1982) ("the Endangered Species Committee is designed to function as an administrative court of last resort"). Ex parte contacts are antithetical to the very concept of an administrative court reaching impartial decisions through formal adjudication. We agree with the observations of the District of Columbia Circuit regarding this principle:

We think it a mockery of justice to even suggest that judges or other decisionmakers may be properly approached on the merits of a case during the pendency of an adjudication. Administrative and judicial adjudications are viable only so long as the integrity of the decisionmaking process remains inviolate. There would be no way to protect the sanctity of the adjudicatory process if we were to condone direct attempts to influence decisionmakers through ex parte contacts.

Professional Air Traffic Controllers Org. v. Federal Labor Relations Auth., 685 F.2d 547, 570 (D.C.Cir.1982) (PATCO v. FLRA II ). By definition, ex parte contacts cannot be addressed and rebutted through an adversarial discussion among the parties. See North Carolina Envtl. Policy Inst., 881 F.2d at 1258; PATCO v. FLRA II, 685 F.2d at 563; U.S. Lines v. FMC, 584 F.2d at 542. Basic fairness requires that ex parte communications play no part in Committee adjudications, which involve high stakes for all the competing interests and concern issues of supreme national importance. See Professional Air Traffic Controllers Org. v. Federal Labor Relations Auth., 672 F.2d 109, 113 (D.C.Cir.1982) (PATCO v. FLRA I ). Behind-the-scenes contacts have no place in such a process.

For the foregoing reasons we hold the Committee's proceedings are subject to the ex parte communications ban of 5 U.S.C. § 557(d)(1).22

B. The President and the White House Staff are Subject to the APA's Prohibition on Ex Parte Communications.

The APA prohibits an "interested person outside the agency" from making, or knowingly causing to be made, an ex parte communication relevant to the merits of the proceeding with a member of the body comprising the agency. 5 U.S.C. § 557(d)(1)(A). Likewise, agency members are prohibited from engaging in such ex parte communication. § 557(d)(1)(B). Although the APA's ban on ex parte communications is absolute and includes no special exemption for White House officials, the government advances three arguments in support of its position that section 557(d)(1) does not apply to the President and his staff.23

First, the government argues that because the President is the center of the Executive Branch and does not represent or act on behalf of a particular agency, he does not have an interest in Committee proceedings greater than the interest of the public as a whole. Therefore, the government contends, neither the President nor his staff is an "interested person". Next, the government maintains that the President and his staff do not fall within the terms of section 557(d)(1) because the President's interest as the Chief of the Executive Branch is no different from that of his subordinates on the Committee. Specifically, the government claims that by placing the Chairman of the President's Council of Economic Advisors on the Committee, Congress directly and expressly involved the Executive Office of the President in the decision-making process. In other words, it is the government's position that because the Committee members are Executive Branch officials, communications between them and the White House staff cannot be considered to come from "outside the agency". Finally, the government argues that if the APA's ex parte communications ban encompasses the President and his aides, the provision violates the doctrine of separation of powers. We find all three of the government's arguments to be without merit.

There is little decisional law on the meaning of the term "interested person". Nor is the meaning of the term clear on the face of the statute. A person can be "interested" in at least three different senses. First, an interested person can be someone who has a curiosity or a concern about a matter, although he may be neutral with respect to the outcome. Second, an interested person can have a preference or a bias regarding a matter's outcome but no direct stake in the proceedings. Finally, a person can be "interested" in a matter in the sense of having a legal interest that will be determined or affected by the decision.

Ultimately, the ex parte communication provision must be interpreted in a common sense fashion. PATCO v. FLRA II, 685 F.2d at 563. Its purposes are to insure open decision-making and the appearance thereof, to preserve the opportunity for effective response, and to prevent improper influences upon agency decision-makers. Id. at 563, 568. To achieve these ends we must give the provision a broad scope rather than a constricted interpretation. The essential purposes of the APA require that all communications that might improperly influence an agency be encompassed within the ex parte contacts prohibition or else the public and the parties will be denied indirectly their guaranteed right to meaningful participation in agency decisional processes.

The legislative history of the ex parte communication provision confirms the breadth of the ban:

The term "interested person" is intended to be a wide, inclusive term covering any individual or other person with an interest in the agency proceeding that is greater than the general interest the public as a whole may have. The interest need not be monetary, nor need a person to [sic] be a party to, or intervenor in, the agency proceeding to come under this section. The term includes, but is not limited to, parties, competitors, public officials, and nonprofit or public interest organizations and associations with a special interest in the matter regulated. The term does not include a member of the public at large who makes a casual or general expression of opinion about a pending proceeding.

H.R.Rep. No. 880, Pt. I, 94th Cong., 2d Sess. 19-20 (1976) U.S.Code Cong. & Admin.News 1976, pp. 2183, 2201 (emphasis added). The legislative history of APA § 557(d) makes clear that the term "interested person" was intended to have a broad scope. PATCO v. FLRA II, 685 F.2d at 562-63. In particular, the provision's history makes it clear that the ex parte communication prohibition was meant to include public officials.

In PATCO v. FLRA II, the District of Columbia Circuit found that the Secretary of Transportation was an "interested person" within the meaning of APA § 557(d)(1) when he telephoned two members of the Federal Labor Relations Authority regarding an unfair labor practice charge made by the Federal Aviation Association against the air traffic controllers union. Id. at 568. While the court did not set forth the rationale for its holding, it seems evident that it reasoned that the Secretary of Transportation has a special interest in a major transportation dispute which is beyond that of the general public and that he is, therefore, an interested person.

The government does not contest the validity of PATCO v. FLRA II as it applies to Cabinet level officials and below. However, it argues that the President's broader policy role places him beyond the reach of the "interested person" language. We strongly disagree. In fact, we believe the proper argument is quite the opposite from the one the government advances. We believe the President's position at the center of the Executive Branch renders him, ex officio, an "interested person" for the purposes of APA § 557(d)(1). As the head of government and chief executive officer, the President necessarily has an interest in every agency proceeding. No ex parte communication is more likely to influence an agency than one from the President or a member of his staff. No communication from any other person is more likely to deprive the parties and the public of their right to effective participation in a key governmental decision at a most crucial time. The essential purposes of the statutory provision compel the conclusion that the President and his staff are "interested persons" within the meaning of 5 U.S.C. § 557(d)(1).

The government's next argument--that because the President and the members of the Committee are all members of the executive branch the President is, for all intents and purposes, a "member" of the Committee and may attempt to influence its decisions--amounts to a contention that the President is not "outside the agency" for the purposes of APA § 557(d)(1). The Supreme Court soundly rejected the basic logic of this argument in United States ex rel. Accardi v. Shaughnessy, 347 U.S. 260, 74 S.Ct. 499, 98 L.Ed. 681 (1954). The Court held that where legally binding regulations delegated a particular discretionary decision to the Board of Immigration Appeals, the Attorney General could not dictate a decision of the Board, even though the Board was appointed by the Attorney General, its members served at his pleasure, and its decision was subject to his ultimate review. Here, the Endangered Species Act explicitly vests discretion to make exemption decisions in the Committee and does not contemplate that the President or the White House will become involved in Committee deliberations. The President and his aides are not a part of the Committee decision-making process. They are "outside the agency" for the purposes of the ex parte communications ban.24

The government then argues that Sierra Club v. Costle determined that contacts with the White House do not constitute ex parte communications that would contaminate the Committee's decision-making process, and that we should follow that precedent. 657 F.2d 298, 400-10 (D.C.Cir.1981). We disagree. Costle is inapplicable because that case did not consider and, indeed, could not have considered, whether the APA's definition of ex parte communications includes White House contacts. The decision in Costle that the contacts were not impermissible was based explicitly on the fact that the proceeding involved was informal rulemaking to which the APA restrictions on ex parte communications are not applicable. Id. at 400-02, 402 n. 507. In fact, while the Costle court recognized that political pressure from the President may not be inappropriate in informal rulemaking proceedings, it acknowledged that the contrary is true in formal adjudications. See id. at 406-07. Because Congress has decided that Committee determinations are formal adjudications, Costle supports, rather than contradicts, the conclusion that the President and his staff are subject to the APA's ex parte communication ban.

Accordingly, the President and his staff are covered by section 557's prohibition and are not free to attempt to influence the decision-making processes of the Committee through ex parte communications.25 The APA's ban on such communications is fully applicable to the President and his White House aides, and ex parte contacts by them relevant to the merits of an agency proceeding would be in violation of that Act.26

The government next contends that any construction of APA § 557(d)(1) that includes presidential communications within the ban on ex parte contacts would constitute a violation of the separation of powers doctrine. It relies on language in Myers v. United States that states that the President has the constitutional authority to "supervise and guide" Executive Branch officials in "their construction of the statutes under which they act." 272 U.S. 52, 135, 47 S.Ct. 21, 31, 71 L.Ed. 160 (1926). The government argues that including the President and his staff within the APA's ex parte communication ban would represent Congressional interference with the President's constitutional duty to provide such supervision and guidance to inferior officials. We reject this argument out of hand.

The Supreme Court established the test for evaluating whether an act of Congress improperly interferes with a presidential prerogative in Nixon v. Administrator of Gen. Services, 433 U.S. 425, 97 S.Ct. 2777, 53 L.Ed.2d 867 (1977). First, a court must determine whether the act prevents the executive branch from accomplishing its constitutional functions. Id. at 443, 97 S.Ct. at 2790. If the potential for such disruption exists, the next question is whether the impact is justified by an overriding need to promote objectives within the constitutional authority of Congress. Id. We conclude that Congress in no way invaded any legitimate constitutional power of the President in providing that he may not attempt to influence the outcome of administrative adjudications through ex parte communications and that Congress' important objectives reflected in the enactment of the APA would, in any event, outweigh any de minimis impact on presidential power.

While the government's argument to the contrary arises in the context of Committee decisions regarding Endangered Species Act exemption applications, carried to its logical conclusion the government's position would effectively destroy the integrity of all federal agency adjudications. It is a fundamental precept of administrative law that an when an agency performs a quasi-judicial (or a quasi-legislative) function its independence must be protected. There is no presidential prerogative to influence quasi-judicial administ