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February 11, 1982

The CITY OF NEW YORK, et al., Defendants

The opinion of the court was delivered by: DUFFY


One unresolved question remains in this federal litigation surrounding construction of the Portman Hotel project in the Times Square Area of New York City: did the White House exert undue political pressure on the Advisory Council of Historic Preservation to execute expeditiously a Memorandum of Agreement ("MOA") in favor of the defendants? I will assume familiarity with my December 7, 1981 opinion, 528 F. Supp. 1245, where all other issues were resolved. *fn1"


 In an effort to finally determine the status of all properties on the proposed Portman Hotel site, the parties entered into a stipulation which provided in pertinent part:

6. In the event the Secretary or his delegate determines that some or all of the disputed properties are eligible for inclusion in the National Register the parties agree not to object to an expedited consideration of this matter by the Advisory Council on Historic Preservation pursuant to 36 C.F.R. Part 800 (1980).
(emphasis added)

 Appendix to Plaintiffs' Exhibit 8. The Morosco Theater was deemed eligible for inclusion in the National Register on November 17, 1981 and the agreed upon expedited appeal ensued. A MOA was signed by Mr. Aldrich, the Chairman of the Advisory Council, on Saturday, November 21, 1981 recommending demolition of the Morosco Theater and allowing a fifteen day period for New York City to consider alternatives to demolition. Government Exhibit 1. Plaintiffs allege that the dispatch accorded the Morosco Theater determination resulted from political pressure exerted by Mr. Lyn Nofziger, who at the time served as a high-level aide to President Reagan.

 The facts alleged by plaintiffs were sufficient to defeat defendants' motion to dismiss this particular claim. See December 7, 1981 op. at pp. 19-20. A temporary restraining order was later entered enjoining demolition of the Helen Hayes and the Morosco Theaters pursuant to an order of the Court of Appeals for the Second Circuit which remanded the case. In the interest of expedition and at the request of the parties, the January 21, 1982 hearing on plaintiff's motion for a preliminary injunction was consolidated with a trial on the merits pursuant to Fed.R.Civ.P. 65(a)(2). The temporary restraining order was extended pending this court's final judgment.


 The January 21 trial accorded plaintiffs an opportunity to substantiate their allegations of White House pressure. To succeed on this claim, plaintiffs had to prove that the Advisory Council's Morosco MOA was directly influenced by political pressure from the White House and was not the product of a reasoned and independent Council analysis. This legal standard can be gleaned from three principal cases: Citizens to Preserve Overton Park, Inc., et al. v. Volpe, 401 U.S. 402, 91 S. Ct. 814, 28 L. Ed. 2d 136 (1971); D.C. Federation of Civic Associations v. Volpe, 148 U.S. App. D.C. 207, 459 F.2d 1231 (D.C.Cir.1971), cert. denied, 405 U.S. 1030, 92 S. Ct. 1290, 31 L. Ed. 2d 489 (1972) and Sierra Club v. Costle, 211 U.S. App. D.C. 336, 657 F.2d 298 (D.C.Cir.1981). *fn2"

 In Overton Park, the Supreme Court was presented with a challenge to Transportation Secretary Volpe's ruling that no feasible alternatives were available to prevent construction of a highway through a public park in Memphis, Tennessee. In reviewing Secretary Volpe's decision, the Court considered "whether the decision was based on a consideration of relevant factors and whether there has been a clear error of judgment." 401 U.S. at 416, 91 S. Ct. at 823. The inadequate administrative record, however, precluded the Court from reaching a decision and the case was remanded to District Court for compilation and evaluation of the administrative proceedings in light of the above standard.

 Transportation Secretary Volpe's ruling in another case was challenged and eventually overturned in D.C. Federation after testimony from Mr. Volpe himself revealed that his decision was not based solely on the merits. 459 F.2d at 1246. The court found "that the repeated and public threats by a few congressional voices did have an impact on the Secretary's decision." Id. at 1245. In Sierra Club, the Circuit Court relied upon D.C. Federation and set forth the requirements which must be met before an administrative decision is judicially overturned on the grounds of political pressure:

First, the content of the pressure upon the Secretary is designed to force him to decide upon factors not made relevant by Congress in the applicable statute .... Second, the Secretary's determination must be affected by those extraneous considerations.

 657 F.2d at 409. The Sierra Club court followed this legal standard and determined that Senator Byrd's "strong" expression of his views on coal emission standards did not place extraneous pressure on the Environmental Protection Agency. Id. Allegations of the Senator's threats were unsubstantiated. The court reinforced the freedom of ...

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