ML19256G266
| ML19256G266 | |
| Person / Time | |
|---|---|
| Site: | South Texas, Comanche Peak  |
| Issue date: | 12/12/1979 |
| From: | Ahearn C, Knotts J DEBEVOISE & LIBERMAN, TEXAS UTILITIES ELECTRIC CO. (TU ELECTRIC) |
| To: | Atomic Safety and Licensing Board Panel |
| References | |
| NUDOCS 7912280627 | |
| Download: ML19256G266 (37) | |
Text
.
3 L
UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION BEFORE THE ATOMIC SAFETY AND LICENSING APPEAL BOARD In the Matter of HOUSTON LIGHTING AND POWER CO.,
)
Docket Nos. 50-498A et al.
)
50-499A
)
(South Texas Project, Units
)
1 and 2)
)
)
TEXAS UTILITIES GENERATING
)
Docket Nos. 50-445A COMPANY, et al.
)
50-4.46A
)
(Comanche Peak Steam Electric
)
Station, Units 1 and 2)
)
TUGCO'S RESPONSE TO AND JOINDER IN HOUSTON LIGHTING AND POWER COMPANY'S REQUEST FOR DIRECTED CERTIFICATION AND REVIEW OF RULINGS CN COLLATERAL ESTOPPEL AND
SUMMARY
DECISION I.
INTRODUCTION TUGCO supports and joins in the petition of Houston Lighting and Power Company (" HL&P " ) for directed certification 1/
and Appeal Board review of the Atomic Safety and Licensing Board's " Order Regarding Motions Based Upon Decision of United States District Court" dated October 5, 1979.
That Order, in addition to denying relief requested by HL&P and TUGCO in the South Texas proceeding, denied the motion of Texas Utilities Generating Company and its co-applicants ("TUGCO") in the Comanche Peak proceeding for summary decision dismissing, order limiting participation by, an intervening party, or an Central and South West Corporation and its operating 1650 077 1/ The directed certification procedure has been developed and explicated in a number of decisions, notably Public Service of New Hampshire (Seabrook Station) ALAB 271, NRC 478 (1975) as discussed by HL&P and infra.
7012280 b,
?
' subsidiaries
("CSW").
More specifically, the relief sought by TUGCO in Comanche Peak was either dismissal of CSW or, failing that, an order barring CSW from introducing evidence or otherwise contesting (collaterally attacking) matters already determined in prior litigation between two CSW subsidiaries and a TU subsidiary.
(The relief TUGCO sought in South Texas was
- an order to the latter effect.)
The prior litigation was before a United States District Court in a case where the two CSW subsidiaries were plaintiffs seeking the same objectives as in this. case in an antitrust action based upon allegations of injury arising out of the same series of events as alleged 3/
here.
The Licensing Board's Order should be reviewed at this time because it tends to produce the result (contrary to appli-cable precedent
) that the doctrines of res judicata and collateral estoppel, and the summary decision procedure pro-5/
vided in the Commission's own regulations, either have no 2/
Central Power and Light Company, Public Service Company of Oklahoma, Southwestern Electric Power Company, and West Texas Utilities Company.
3/
West Texas Utilities Company and Central Power & Light Company v. Texas Electric Service Company and Houston Lighting & Power Company, 470 F.Supp. 798 (N.D. Tex.
1979).
4/
Notably Toledo Edison (Davis-Besse Nuclear Power Station)
ALAB 378, 5 NRC 557 (1977).
5/
10 C.F.R. 52.749 1650 078 T
3 application in antitrust proceedings (because of " strong policy considerations" pertaining to 5105.c antitrust. review coupled with notions of primary jurisdiction) or are wholly discretionary with licensing boards.
In common with an appeal under 10 C.F.R. 52.714a at the outset of a proceeding (to the effect that a petition to intervene should have been wholly denied),
and in satisfaction of a test recognized in prior
" directed certification decisions, these appeals must be heard now or not at all.
The question presented goes to the very heart of participation on all issues by an intervening party.
This is an operating license proceeding.
Substantial additional delay and expense can be avoided if CSW is dis-missed or at least barred from relitigating matters already decided against it in the District Court.
The question involved has application to other NRC antitrust proceedings.
It also implicates the sensitive mat'ter of comity and mutual avoidance of infringement on valid orders as between NRC and the courts, and therefore has important legal and policy implications.
TUGCO supports Houston's petition and respectfully re-quests that directed certification be granted, that the Order of the Licensing Board be reversed, and that CSW be dismissed or at least barred from relitigating matters decided by the District Court.
6/
Kansas Gas & Electric Co.
(Wolf Creek Nuclear Generating Station), ALAB 327, 3 NRC 408, 413 (1976).
1650 079
i
- II.
DIRECTED CERTIFICATION IS WARRANTED A.
Interlocutory Review is Necessary to Prevent Immediate and Irreparable Harm to the Apolicant As provided in 10 C.F.R.
F2. 718 (i) and explicated in Public Service Ccmpany of New Hampshire, et a].
(Seabrook Station, Units 1 and 2), ALAB-271, 1 NRC 478 (1975) and sub-sequent decisions, the Atomic Safety and Licensing Appeal
~
Board, as the delegate of the Commission, has the authority to direct a Licensing Board to certify matters to it for its consideration for which no appeal of right lies in view of the general proscription of interlocutory appeals (10 C.F.R. 2.730 (f) ).
Parties may seek to invoke directed certifica-tion.
We recognize that such requests for directed certifi-cation are granted only in exceptional circumstances, but urge that the matter presented for review here meets the tests laid down in prior decisions.' We may begin with Public Service Company of Indiana (Marble Hill Nuclear Generating Station, Units 1 & 2), ALAB-405, 5 NRC 1190 (1977) where the Appeal Board said:
Almost without exception in recent times, we have undertaken discretionary inter-locutory review only where the ruling below either (1) threatened the party adversely affected by it with immediate and serious irreparable impact which, as a practical matter, could not be alleviated by later appeal or (2) affected the basic structure of the proceedings in a pervasive or unusual manner.
(5 NRC 1190 at 1192)
These standards were recently reaffirmed in Offshore Power Systems (Floating Nuclear Power Plant), ALAB-517, 9 NRC 8 (1979).
1650 080 1
4 The first standard has been covered in our introductory statement; we may summarize by noting that dismissal of CSW
~
would shorten, perhaps obviate the need for, the hearing, and review of CSW's participation after it has already participated would be meaningless.
B.
The Question Involved Affects the Proceedinc in a Pervasive and Unusual Manner As already noted,-the question of whether, and if so to what extent,CSW is to participate is one which goes to the heart of either trial or settlement.
CSW is committed to ob-taining relief which will preserve its~ holding company status; it has indicated it plans to present its same evidence here as 7/
~
already considered by the District Court.
Contrary to the Licensing Board's assumption, NRC Staff and the Department of Justice will not simply put on CSW's case if the latter is 8/
barred from relitigation.
dhe effect of barring CSW is thus
~
far more substantial than a matter of who sponsors a witness who will appear in any event.
Morecever, as adverted to in the introductory statement, limitation on CSW's participation could make the dif ference between a case which potentially can be settled and one which must be tried.
C.
The Licensine Board was Given the Opportunity to Certify its Rulinc and to Have Done so Would have Been Proper The TU Companies specifically asked the Licensing Board 7/
Tr. 55 8/
Tr. 288-89, 300, 303 1650 081 i
to certify the questions involved or refer its ruling if ad-
~9/
verse.
The standards for certification or reference of a ruling are met, in that " prompt decision is necessary to pre-vent detriment to the public interest or unusual delay or ex-(10 C.F.R. 52. 730 ( f) ) ; and "a major or novel pense.
~
question of policy, law, or procedure is involved which cannot be reso.'ved except by the Commission or the Appeal Board and
. prompt and final resolution of the question is important for the protection of the public interest or to avoid undue delay or serious prejudice to the interests of a party."
(10 C.F.R. Part 2, Appendix A, V (f) (4) (regarding 10 C.F.R. 52.718(i)].
This is apparently the first time that a United States District Court has rendered a decision in an antitrust case that so pervasively covers the same grounds as those which a
~
party to an NRC proceeding seeks to have reviewed by the Nuclear Regulatory Commission pursuant to its authority under Section 105.c of the Atomic Energy Act.
The guidance--10/from the Appeal Board on the question of the extent to which col-lateral estoppel or res judicata effect should be accorded to a District Court decision as against a party in both the
-9/
"TUGCO's Motion to Dismiss CSW [and for alternative re-lief] " in Comanche Peak, April 3, 1979 at 2.
This relief was specifically denied.
Order at 20.
10/
Note 4/, supra.
1650 082 i
court and the NRC proceedings looks the other way from the Licensing Board's ruling here.
Moreover, resolution of the proper role of the NRC and the courts in antitrust matters, particularly where an unsuccessful litigant seeks to relitigate the same factual issues in successive forums, involves important questions of public policy.
In its October 5, 1979 Order, the Licensing Board de-termined that one reason for not applying collateral estoppel or res judicata to the present situation was that it could disregard the District Court's decision because "when the legis-lative intent is to vest primary power to make particular de-terminations concerning a subject matter in a particular agency, a court's decision concerning that subject matter may be with-out binding effect upon that agency."
17 of slip op.,
citing II Davis, Administrative Law Treatise, Section 18.12 at 627-628 (19 5 8) ).
However, it,.is not at all clear that Congress intended the Nuclear Regulatory Commission to assume primary jurisdiction for the resolution of all antitrust issues in-volving utilities, especially when the key issue is intercon-nection of all systems in an entire region with r.n even larger region.
Indeed, in a situation involving whether courts or the then Federal Power Commission had primary Juris-diction, the Supreme Court concluded that the courts, not the agency, had primary antitrust jurisdiction. --11/
11/
California v. FPC 369 U.S.
482 (1962).
1650 083 Congress specifically recognized in Section 105.a of the Atomic Energy Act the District Courts' jurisdiction over cases involving violation of the Sherman and Clayton Acts.
Under Section 105.c of the Atomic Energy Act (42 U.S.C.
2135 (c) ),
the Nuclear Regulatory Commission was given the responsibility of conducting an anticipatory antitrust review upon the advice of the Attorney General that such review was necessary.
Nothing con-
~.tained in Section 105.c of the Atomic Energy Act or in the legislative history accompanying Fublic Law 91-560 (the pertinent 1970 amendments to the Atratic Energy Act) addresses the question of what the effect of a prior District Court antitrust decision favorable to the applicant (s) should be on the NRC antitrust review.
The only time Congress apparently considered the respective roles of NRC and the district courts concerning antitrust matters occurs in the above-noted Section 105.a of the Atomic Energy Act (42 U.S.C.
2135 (a)), which deals with the centrary situation wherein an antitrust violation is found by the courts and provides "the Commission may suspend, revoke, or take such other action as it may deem necessary with respect to any license issued by the Commission under the provisions of this chapter."
In light of Congress' silence regarding how NRC was to deal with the converse of the situation contempated in Section 105,a, 'the following construction is offered.
Congress in-tended the review under Section 105.c (5) to be used either in the absence of any parallel District Court proceeding or as a 1650 084 supplement to that proceeding, but not as an avenue for a disappointed plaintiff in sucn proceeding to obtain a tr'ial de novo against the same defendants based on the same evidence.
The special role of the NRC is anticigj;jggv review.
In this case, CSW's claims are founded on the same prior It would do no events as already considered by the courts.
. violence to the legislative scheme to accord the usual and customary estoppel effect to the factual determinations of the district court as between parties to the prior litigation.
THE LICENSING BOARD'S RULING WAS ERRONEOUS III.
TUGCO listed in attachments to its motion to the Licensing Board the matters decided by the District Court which TUGCO sought to prevent CSW from relitigating.
For purposes of this appeal, these may be restated as follows:
1.
No group boycott by TU and HL&P.
2.
No unlawful refusal to deal by TU.
3.
No agreement, combination, or conspiracy in restraint of trade by TU and others.
4.
No unconditional (or unreasonable) refusal by TU to operate in interstate commerce.
5.
Disconnection by TESCO from WTU was uni-lateral.
Such did not involve concerted action by TESCO with HL&P or others and no effect on competition resulted.
6.
There is no significant (direct or indirect) 1650 085
I f competition between TU Companies and CSW Companies.
7.
No anticompetitive motive, purpose, intent, 12/
or design by TU vis a vis CSW Companies.
It is the Licenisng Board's denial of an order barring CSW from relitigating the subsidiary findings on which these conclusions are based (listed in appendices A and B to TUGCO's Motion below) which is the essence of the request for directed certification, review, and reversal.
On these matters, partial To or complete summary decision against CSW was warranted.
~~ avoid burdening the Appeal Board with repetition of the same as to the reasons assigned arguments already advanced, we note, by the Licensing Board for declining to enforce estoppel (issue preclusion) against CSW, that we join in the arguments advanced by HL&P in its petition for directed certification (at 7-17).
We urge in addition, however, that the elements of res and that dismissal of CSW was warranted.
judicata are present, The Licensing Board was of the view that neither res judicata nor collateral estoppel are properly invoked because different standards are involved under the Sherman Act and Section 105.c.,
and that these are separate and distinct causes of action.
The result is to leave a private litigant free to pursue a 12/
TUGCO's Memorandum of Points and Authorities, April 3, 1979 at 5-6.
Appendix A to that Memorandum gave a de-tailed summary of the points as to which estoppel of Appendix B compared the allegations of CSW was sought; the CSW petition to intervene in Comanche Peak with the District Court decision.
Note that these points are generally congruent with those listed at page 8-9 of HL&P's Petition for Directed Certification.
1650 086
_11 sequence of remedies arising out of the same series of trans-actions and occurrences.
Though the courts have recognized exceptions for the Department of Justice (e.g., United Shoe Machinery v. United States 258 U.S.
451 (1922)), private liti-gants ara. not accorded that freedom from the accepted Anglo-American concept of a single cause of action reflected, inter alla, in the Federal Rules of Civil Procedure.
The law is that private litigants such as CSW get one opportunity to litigate a given set of facts on which a claim of injury is premised in the forum of its choice, win or lose.
The test is whether the injury-creating facts are the same, not whether the statutes are different.
Williamson v. Columbia Gas and Electric Corp.
186 F.2d 464, 468 (3d. Cir. 1950), cert. den. 341 U.S.
921 (1951).
(Sherman and Clayton theories).
Norman Tobacco &
Candy Co. v. Gillette Safety Razor Co. 295 F.2d 362 (5th Cir.
1961) (contract and antitrust theories).
(See also the further cases cited in our Memorandum of Points and Authorities below at 10-11).
There are, of course, circumstances where a subsequent claim is not barred even though based on the same facts as an earlier one in a different forum because the initial forum was powerless to grant the relief sought in the second forum.
Such a case is Hayes v. Solomen, 597 F.2d 958 (5th Cir. 1979),
where the court held that the second complaint, an antitrust action, was not barred despite a prior action in a state court between the same parties on a breech of contract theory.
The prohibition on i650 087 splitting causes of action was held inapplicable only because the prior action had been in a state court which was powerless to grant damages under the federal antitrust laws, relief which the federal courts have exclusiv'e jurisdiction to grant.
The question here, of course, is should the Appeal Board look to the substance of the relief sought by CSW in the two cases, or confine its view to the form of relief.
To be sure,
.the NRC does not issue injunctions, and the courts have not, -
13/
-~
yet directly imposed license conditions.
But the substance of the relief sought by CSW is the same in both instances --
use of TU's transmission system to integrate the operations of CSW's intrastate and interstate subsidiaries.
If the Appeal Board looks beyond form to substance, the relief sought in the district court and before the NRC is the same, and claim preclusion as well as issue preclusion is in order.
IV.
THE LICENSINC. BOARD FAILED TO APPLY ESTABLISHED FEDERAL AND NRC STANDARDS WHEN IT DID NOT DEEM THE MATERIAL FACTS FOUND BY THE DISTRICT COURT ADMITTED BY CSW
~
The Octeber 5, 1979 Licensing Board Order did not adequately explain why it declined to apply 10 C.F.R. 52.749 13/
It may be observed that a contrary result in the district court may very well have presented the NRC with the question of framing license conditions in implementation of subsection 105.a.
1650 088 as requested in TUGCO's April 3, 1979 motion (at p. 18-20).
The last two sentences of Section 2.749 (a) read:
There shall be annexed to such answer a separate, short and concise statement of the material facts as to which it is :on-tended that there exists a genuine issue to be heard.
All material facts set forth in the statement required to be served by the moving party will be deemed to be admitted unless controverted by the statement required to be served by the opposing party.
(Emphasis supplied).
TUGCO listed in Appendices A and B to its memorandum of points and authorities of April 3, 1979 certain findings of fact from the district court decision as the statement of material facts as to which it contended there was no genuine issue to be heard.
This brought Section 2.749 (b) into play, the pertinant part of which reads:
When a motion for summary decision is made and supported as provided in this Section, a party opposing the motion may not rest upon the mere allegations or denials of his answer; his answer by affidavits or as otherwise provided in this 14/
In. Pacific Gas & Electric Company (Stanislaus Nuclear Project, Unit No. 1), LBP-77-45, 6 NRC 159 (1977), the licensing board denied a motion for summary judgment but noted that unless Applicant is entitled to summary dispo-sition on the pleadings as a matter of law, there must be an affidavit by a competent witness or witnesses.
- However, where the basis for summary judgment is res judicata or collateral estoppel, it is enough that authentic evidence of the prior judgment be before the tribunal.
See Hart Steel Co. v. Railroad Supply Co.,
244 U.S. 294 (1977).
Courts take judicial notice of prior adjudications for res judicata and collateral estoppel purposes and there is no reason for the Board not to take official notice of the decision of the Court.
- See, e.g.,
Holmes v.
U.S.,
231 F.
Supp 971 (N.D. Ga 1964), aff'd 343 F.2d 785 (5th Cir. 1966).
1650 089 Section must set forth specific facts showing that there is a genuine issue of fact.
If no such action is filed, the decision soucht, if appropriate, shall be rendered._
(Emphasis supplied).
CSW did not contest the facts contained in Applicants' Appendices A and B, nor did it file an affidavit under Section 2.749(c) stating why it could not file the statement showing which facts were in genuine dispute.
CSW's failure to respond as provided by 10 C.F.R. 2.749 pointed out in TUGCO's reply of April 30, 1979 at 2-3.
Under these conditions, the Licensing Board should have exercised its authority under Section 2.749 (d) to grant Applicants' summary disposition motion.
The Licensing Board in the case of Power Authority of the State of New York (Greene County Nuclear Power Plant), LPB-79-8, 9 NRC 339 (1979) did follow the requirements of Section 2.749 in granting summary disposition for Applicant where the Applicant had moved for summary disposition as to an intervenor's contention, supported its motion adequately, and the intervenor failed to respond.
Id.,
at 344.
Both the Appeal Board in Cleveland Electric Illuminating Company (Perry Nuclear Power Plant, Units 1 and 2), ALAB-443 6 NRC 741, 756 fn. 46 (1977) and the Licensing Board in Pacific Gas and Electric Company (Stanislaus Nuclear Project, Unit 1),
LPB-77-45, 6 NRC 159, 163 (1977) recognized that motions for 1650 090 summary disposition under Section 2.749 are analogous to motions for summary judgment under Rule 56 of the Federal Rules of Civil Procedure and that similar procedures and standards 15/ Indeed, in
~~
should be generally applied in both situations.
the Appeal Board noted that:
the Perry case, While the Federal Rules of Civil Procedure do not apply in practice before this agency, they offer guidance because our rules are This is generally patterned after them.certainly true in the case of Sec for 'the swmmary disposition procedure provided by Section 2.749 finds a judicial in Rule 56 of the Federal Rules counterpart
' Alabama Power Comoany of Civil Procedure.
Units 1 and (Joseph M. Farley Nuclear Plant,
- 2), ALAB-182, 7 AEC 210, 217 (1974).
Numerous decisions of the federal cocrts 6 NRC at 756, fn. 46.
statements hold that failure to contradict the moving parties' of material facts as to which there is said to be no genuine dispute results in these facts being deemed admitted.
A decision of the United' States Supreme Court provides an appropriate starting point regarding federal doctrine in this area.
wherein the plaintiff below could not provide In a case any evidence in opposition to a defendant's motion for summary The hearing board in Stanislaus declined to grant summary decision, basing its decision partly on reasoning contra 15/
~~
to-First National Bank of Arizona v. Cities Service Com-cany, 391 US 253, 289-90 (1968) that summary judgment The Appeal was not favored in antitrust proceedings. reversed a grant of summa Board in Perry on the grounds that the proponent had failed to prove the absence of a genuine issue of material fact.
i650 091
. judgment and in which he claimed additional discovery was necessary to enable him to prove his case, the Court stated:
What Rule 56(e) does make clear is that a party cannot rest on the allegations contained in his complaint in opposition to a properly supported summary judgment motion made against-him.
To the
~
extent that petitioner's burden-of-proof argument can be interpreted to suggest that Rule 56 (e) should, in effect, be read out of antitrust cases and permit plaintiffs to get to a jury on the basis of the allegations in their complaints, coupled with the hope that something can be developed at trial in the way of evidence to support those allegations, we decline to accept it.
While we recognize the importance of preserving litigants ' rights to a trial on their claims, we are not prepared to extend those rights to the point of requiring that anyone who files an antitrust complaint setting forth a valid cause of action be entitled to a full-dress trial notwithstanding the absence of any significant probative evidence tending to support the complaint.
First National Bank of Arizona v. Cities Service Company, 391 US 253, 289-290, 20 L.Ed.2d 569, 88 S.Ct. 1575 reh. denied 393 US 901 (1968).
The plaintiff in Arizona Bank had alleged a conspiracy in re-straint o f trade aimed against him by two of the defendants and a potential competitor, but the Court found that all the evidence adduced at the time of the summary judgment motion showed there to be no conspiracy but a number of valid busi-ness reasons for the independent acts of the defendants.
Since the petitioner could not show any evidence to support his allegations but simply relied on the hope of eventually dis-covering something at trial, the Court held that summary judgment was warranted.
The reasoning of this decision
~
l650 092
_17_
appears particularly relevant to the present situation where CSW did not offer any evidence whatsoever to support its allegations in response to TUGCO's summary disposition motion.
The effect of a party's failure to respond by affidavit or otherwise to an opposing party's summary judgment motion is discussed in Professor Moore's treatise at 6 J. Moore, Federal Practice, 156.22[2], (1966).
See especially the cases listed in fn. 30 at pages 56-1341 through 56-1344 on the eff'ect of uncontradicted affidavits.
When the moving party has adequately supported his motion for summary judgment, the failure of the opposing party either to profer any countering evidentiary materials or to file a 56 (f) affidavit (the counterpart of the 10 CFR 2.749 (c) affidavit) results in the facts offered by the moving party being deemed admitted and the granting of the summary judgment motion if the moving party shows that there is no' genuine issue of material fact.
In this proceeding, the findings of fact and conclusions of law from the district court decision constitute Applicants' 15/
required showing and CSW's f ailure to respond to them requires that they be deemed admitted.
~
Other cases stating that uncontested facts in support of a summary judgment motion must be deemed admitted are Lacey v.' Lnnher Mutual Fire Insurance Comoany of Boston, 554 F.2d 1204 (1st Cir. 1977) (defendant's memorandum in 16,/
See note 14, supra 1650 093
- opposition to summary judgment was insufficient since "the adverse party's response must be by affidavit or by some other type of evidence."
Id. at 1205): Smith v.
Saxbe, 562 F.2d 729 (D.C. Cir. 1977) (plaintiff's memorandum of points and authorities and statement of material facts as to which a genuine issue exists was insufficient to establish an issue of fact in the face of defendant's affidavi'ts in support of
' summary judgment); Economou v. Butz, 466 F.Supp 1351 (S. D. N. Y.
1979) (facts set forth in defendants' statement filed in support of their motion for summary judgment deemed admitted where plaintiffs failed to submit an opposing statement giving their version of undisputed facts (Local Rule 9(g)));
and Standard Oil Company v. Federal Energy Administration, 465 F.Supp 274 (N.D. Ohio E.D.
1978) ("This court must assume that uncontroverted affidavits submitted to it are true." at 281).
The facts which CSW has failed to contradict would aave been deemed admitted in any federal court.
Since federai decisions under Rule 56 of the Federal Rules of Civil Procedure should offer guidance to NRC practice under 10 C.F.R. 2.749, (Perry, supra at 756, fn. 46),
these facts should likewise have been deemed admitted in this proceeding.
For these reasons, the Licensing Board erred and su= mary decision should be granted on the issues listed in Appendices A and B of TUGCO's motion.
1650 094
. V.
THE LICENSING BOARD MISAPPREHENDED CERTAIN AUTHORITIES ON WHICH IT RELIED The Licensing Board's interpretation and use of several of the cases on which it relied are questionable.
First, the Licensing Board's order did not address itself to the collateral estoppel effect that should have been given to findings of fact of the district court but rather relied on authorities which focus on whether such effect should be given to conclu-sions of law.
While several of the cases cited are opposite with regard to conclusions of law, they are not authoritative as to issue preclusive on questions of fact.
The Licensing Board cited (Order at page 8) the cases of Peterson v. Clark Leasing Corporation, 451 F.2d 1291 (9th Cir. 1971) and James Talcot, Inc. v. Allahabad Bank, Ltd.,
444 F.2d 451 (5th Cir. 1971)_, cert. denied 404 U.S. 940 (1971) for the proposition that issues are not identical (and col-lateral estoppel does not operate) if the second action in-volves application of a different legal standard even though
~
the facts in the two proceedings may be the same.
However, neither of these cases states that the underlying facts that are common to both proceedings may be relitigated in a second proceeding.
Indeed, in the Talcot case, the footnote which the Board cited refers to text which states:
1650 095
. That different legal conclusions may flow from a single fact-finding, however, does not alter the existence of that fact-finding.
The distinguishing feature of the doctrine of collateral estoppel is that it precludes in a second or sucsequent suit the reliti-gation of fact issues actually determined in a prior suit regardless of whether the prior determination was based on the same cause of action in the second suit.
We cannot accept, therefore, CTI's suggestion that a fact issue determined in one suit loses its validity in a
~
subsequent suit involving a different cause of action simply because that fact determination is proferred to support a different legal theory. (emphasis in original).
444 F.2d 451, at p.
459.
The Licensing Board cited (Order at page 11, fn 11) five cases as authority for the proposition that where the legal standards of two statutes are significantly different, the decision of issues under one. statute does not give rise to collateral estoppel in the litigation of similar issues under a different statute.
Each of these five cases was concerned with whether a conclusion of law frcm the previous proceeding should be given collateral estoppel effect in the second proceeding, not whether any of the underlying facts,found should be given such effect.
In the first case, Toledo Edison Comcany (Davis-Besse Nuclear Power Station, Units 1, 2 and 3), ALAB-560, 10 NRC (Septedber 6, 1979) at page 209 (Order at page 11) the Board refused to apply collateral estoppel to a previous FPC finding that there was no anticompetitive conduct.
The FPC pro-ceeding had been under Section 202(b) of the Federal Power Act, 1650 096 as here, under the same antitrust laws 16 U.S.C.
5824alb), not, as referenced in Section 105.c.
The legal issues which could have been decided under the FPC proceeding were not those that In the would have been adjudicated in an antitrust proceeding.
present proceeding, the prior district court case was an anti-trust matter and is thus distinguishable from tavis-Besse.
258 U.S.
451 United Shoe Machinery Corporation v.
U.S.,
(Order at p.ll) did involve two antitrust suits brought by the
~ (1922) but it involved completely distinct Justice Department, issues.
The court stated that:
The determination of the questions now raised under the Clayton Act was not essential to the former decision.
(Id. at p. 460)
The issue whether the restrictive clauses were valid, in view of the provision of the Clayton Act concerning machinery, patented or unpatented, was not and could not have been involved or decided in thd former suit.
(Id. at p. 462)
Thus, legal issues which were not and could not be determined in the first suit could not be foreclosed in the second su Here, we seek issue preclusion of CSW on determinations of fact (and mixed questions) common to both cases.
is the plaintiff Moreover, where the Justice Departmentin both actio 17'/
piecemeal litigation, but private plaintiffs are not
~~
See pages 10-17, supra.
accorded such a privilege.
',650 09'
. In the case of In Re Yarn Processing Patent Validity Litigation, 498 F.2d 271 (5th Cir. 1974) (Order at p. 11) prior Canadian litigation fixing the date of invention for Canadian patent law purposes could not be given collateral litigation concerning the date estoppel effect in later U.S.
Since of reduction to practice for U.S. patent law purposes.
each country was concerned with a different date in the pro-cess of invention and application, the appeals court stated-that:
Itwaserrorherthedistrictcourtto rely on either findings or arguments in the Canadian case, since they went to the wholly different issue of the date(emphasis of invention under Canadian ~ law.
supplied).
Id. at p. 279 (fn. omitted).
Again, here we have the same issues under the same statutes.
443 F.2d In Tipler v. E.I Ducont de Nemeurs and Company, an NLRB finding on racial 125 (6th Cir.1971) (Order at p.11) discrimination did not preclude a suit under the Civil Rights ily Act of 1964 because the NLRB hearing examiner was primar led to concerned with a question whether union activities had ider the the petitioner's discharge and did not adequately cons factors necessary for a violation of Title VII of the Civil The court found that the two Acts had different Rights Act.
f standards and purposes and that the legislative history o h ld Title VII showed a Congressional desire that a plaintiff s ou be allowed to proceed under both statutes if he wish No explicit statement and no basis to infer such a Congres-sional intention is present in the Act or its history.
Pacific Seafarers, Inc.
- v. Pacific Far East Line~, Inc.,
404 F.2d 804 (D.C. Cir. 1968), cert. denied, 393 U.S. 1093 (1969) (Order at p. 11) held that a finding by the Maritime Commission under Section 15 of the Shipping Act of 1916 on the question of whether the defendants were engaged in foreign
. commerce was not determinative of the question whether they were engaged in foreign commerce for the purposes of a later Sherman Act proceeding.
The Commission did not have the jurisdiction to make such a finding and it was not shown that the standards under the two Acts were the same.
In the present proceeding, the questions whether there was competition, a conspiracy, etc., were involved in the prior proceeding and the court there did have jurisdiction to render valid findings of fact (and findings on mixed guestions) on thers and other matters.
Thus, neither Pacific Seafarers nor any of the other four cases just discussed is authority for the proposition that facts previously litigated by a court of competent jurisdiction and necessarily determined by that court need not be given collateral estoppel effect in a later proceeding.
They are also very weak authority on which to base a conclusion that the legal issues of the prior antitrust proceeding can be ignored in the present proceeding since in each of these cases the legal issues in the second proceeding were clearly different from those in the first proceeding, whereas here, many of the legal issues are necessarily identical between the two proceedings.
1650 099 The Licensing Board also quoted (Order at pp. 10 - 11) an extensive section from Consumers Power Company (Midland Plant, Units 1 and 2) ALAB-452, 6 NRC 892, 911-912 (1977) as further support for its contention that the standards and issues involved in the district court proceeding and the present NRC proceeding were so different as to prohibit the use of collateral estoppel in the NRC proceeding.
The gist of the quoted material is that cases decided under Section 5 of'the Federal Trade Commission Act may be useful guides in deter-mining whether a situation is inconsistent with the underlying policies of the antitrust laws.
That the courts are concerned with violations, and that the NRC asserts the power to act in the absence of violations under FTC precedents as well as judicial ones does not justify the Licensing Board in enter-taining relitigation of previously decided subsidiary issues which are involved regardless' of whether the standard is "violcrion" or " inconsistency".
As the Commission itself has stated:
But in the field of antitrust, our expertise is not unique.
We merely apply principles, developed by the Antitrust Division, the Federal Trade Commission, and the Federal courts, to a particular industry.
Houston Lighting and Power Comoany (South Texas Project, Unit Nos. 1 and 2) CLI-77-13, 5 NRC 1303, 1316 (1977).
This clearly indicates the Commission's recognition of stare decisis and the applicability of judicial precedent.
A fortiori, greater weight should be given to determinations by the courts on the same issues between the same parties.
It would be
. more consistant with this Commission pronouncement for the Licensing Board to have given collateral estoppel effect to the findings of the Dallas district court in the present proceeding.
The 31 censing Board gave as one of the reasons it need not apply co3interal estoppel or res judicata in the present proceeding the assertion that the NRC antitrust review proce.ss came under the exception recognized for " broad public policy considerations or special public interest fcctors".
(Order at p. 16).
The three cases it cites go to either fundamental legal principles or matters of special interest to the judicial system.
In Spilker v. Hankin, 188 F.2d 35 (D.C. Cir. 1951)
(Order at p. 4) a fee contract between an attorney and his client were at issue.
The attorney had forced the client to sign a series of promissory notes well after the attorney / client ralationship had started and inmediately prior to the litigation contemplated by that relationship; he brought suit on the first of the notes and was successful, and was now commencing a second suit on the remaining notes.
The court held that such fee contracts were "a subject of special interest and concern to the courts."
Id. at p. 39.
Such contracts were frequently attended by the presumption of invalidity and overrea'ching and were always subject to the close scrutiny of the court whenever judicial enforcement was sought.
- However, the court stated:
1650 101 iOJu 1UU Were this merely a suit upon the original judgment we would, of course, consider res judicata to be applicable.
Id. at p. 39.
Thus, even though the court recognized that
. fee contracts were an area of special concern to the court, it clearly held that res judicata should nevertheless be applied in appropriate circumstances.
In Tipler v. E.'I.Dupont de Nemours and Company, 443 F.2d 125 (6 th Cir. 1971) (Order at p.
- 4) the reasons for not applying res judicata or collateral estoppel were the' overriding public policy reason of ending racial discrimination and the specific legislative history indicating that Congress did not intend an action based on job discrimination to be brought exclusively under either Title VII of the Civil Rights Act of 1964 or the National Labor Relations Act but expected that they could be used jointly.
In Alabama Power Company (Joseph M. Farley Nuclear Plant, Units 1 and 2), ALAB-182, 7 AEC 210 (1974) remanded on other grounds, CLI-74-12, 7AEC 203 (1974).
The Nuclear Regulatory Cocmission (Order at pp. 4 and 16) remanded on essentially due process grounds noting that the petitioner:
was not specifically afforded an opportunity to respond after uhe regulatory staff and applicant first raised the res judicata issue and petitioner should not have been expected here to advance reasons to avoid application of res judicata/ collateral estoppel doctrines since this proceeding has been directed to the more fundamental issue of whether the doctrines may ever be validly applied to our proceedings.
1650 102 7 AEC at page 204.
Apparently the Appeal Board was of the view that any other result would have deprived the petitioner of an opportunity to present his case and would have thus violated fundamental due process rights.
The Farley case also cites the case of the Mercoid Cor-poration v. Mid-Continent Investment Company, 320 U.S.
- 661, 88 L.Ed. 376 (1944) on this subject.
In that case the Supreme Court refused to apply res judicata to prior litigation be-cause to have done so would be placing its imprimatur on a scheme which involves a misuse of the patent privilege and a violation of the antitrust laws.
It would aid in the consumation of a conspiracy to expand a patent beyond its legitimate scope.
Id. at p.
670.
These four cases indicate that very strong public policies must be involved before the "public policy" exception to the application of res judicata or collateral estoppel can be invoked.
In Soilker, that issue was the fiduciary relationship between attorney and client and the possible abuse of that relationship by the attorney; in Tipler the issue was redress of possibly racially discriminatory actions; in Mercoid the issue was the possible abuse of court proceedings to illegally extend the scope of a patent monopoly; and in Farley, the issue was due process.
In the present proceeding the Licensing 1650 103
. Board attempted to elevate a right to NRC antitrust review to the same level of importance as the matters at stake in the four mentioned cases.
But we have already demonstrated that there is no public policy to grant a trial de, novo to a disappointed plaintiff and put the NRC in the posture of second guessing the courts.
~.
It is universally accepted that the public policy exception is a very narrow one and has been so stated by many legal authorities.
The following quotation from an annotation is pertinent.
In any event, in view of the important con-siderations of public policy upon which the doctrine of res judicata is itself rested, it seems manifest that exceptions ought to be recognized, if at all, only sparingly and under _the most urgent circumstances.
And under no circumstances should such an exception be made where the question allegedly affected by considerations of public policy has been fully considered and decided by a campetent court having jurisdiction of the subject matter and the parties.
"Res Judicata As Subject To Exception When Its Application Would Be Opposed to Public Policy" 88 L.Ed. 389 at 394 (1944)
The Licensing Board also found authority for its stand on the applicability of the public policy question (Order at page 4) in the following quotation from the Parley case:
Professor Davis has suggested a particular need for clothing an administrative agency with a discretion to decline to invoke these doctrines in the course of " feeling 1650 104 its way into an undeveloped frontier of law and policy," 2 Davis, Administrative Law Treatise, p.
566
. 7 AEC at 215.
This reliance is entirely misplaced for the following reasons.
This quotation and the entire section of the treatise from which it came are devoted to the question of whether res judicata effect should be given to the decision of an administrative acency in later litigation and not to whether an agency should give res judicata effect to the decision of, a court in its proceedings.
The context in which the quoted sentence is found is important.
The pertinent part of the entire paragraph reads as follows:
The desire for repose on which res judicata rests relates primarily to findings of fact; repose on lively problems of law may even be affirmatively objectionable.
A tribunal ought no_t_to be barred from using trial and_ error methods of feeling its way into an undeveloped frontier of law and policy.
Even when the principle of res judicata should be rigidly applied to findings of fact, some relaxation of its application to rulings of law may be indicated.
(11., Section 18.03 at p.
566)
There is thus no doubt that the quotation relied upon by the licensing board was intended to be directed solely towards questions of law, not fact.
If further support be needed, the first sentence in the following paragraph supplies it:
Some or all of these factors impelled the
~
Supreme Court to deny res judicata effect to an administrative decision of law, even though findings of fact in the same case would have been binding, in West v. Standard oil Company (278 U.S.
200, 73 L.Ed. 265 (1929)).
1650 105
. In the Farley case, this quotation was used because the Appeal Board was discussing the applicability of res judicata -
to a prior administrative datermination; it was not concerned with whether the NRC should give res judicata effect to a prior judicial decision.
Thus, the quotation from Farley lends no support whatso-ever to the Licensing Board's attempt to exercise discretion in the application cf collateral estoppel to findings of fact in a previous judicial decision.
Furthermore, it is difficult to see how antitrust law can be viewed as within Professor.
Davis' rationale concerning an " undeveloped frontier of law and policy" in light of the innumerable federal cases which have been decided in this area since 1890.
The Licensing Board cited Houston Lighting and Power Company (South Texas Project;. Unit Nos. 1 and 2), CLI-77-13, 5 NRC 1303, 1316 (1977) (Order at p. 16) as authority for holding that the NRC antitrust review process was of a unique nature that constituted a special public interest factor which would preclude application of res judicata and collateral estoppel.
But the unique feature the Commission was discus-sing was that the applicant had to come to the NRC for antici-patory review before it could construct and operate its plant.
The uniqueness it found was thus that each applicant had to submit to the govenment's advance antitrust scrutiny rather than the government selecting a miscreant and having to go to court.
The Commission was not asserting that some special virtue existed in NRC itself to decide antitrust matters; as 1650 106
' already noted, it avowed that it lacked any special expertise in antitrust matters just a few sentences prior to the quota-tion used by the Licensing Board. There is nothing in this case that would lead to the conclusion that " uniqueness" of the NRC antitrust review would be in any way denigrated by an acceptance of the district court's findings as between the parties thereto and on the issues that were before that court.
bysodoing, the Licensing Board would be fulfilling its Con-gressional mandate in antitrust matters and also following the well accepted rules of comity and repose.
The Licensing Board cites (Order at p. 17) Midland, supra, 6 NRC at 912 and Kansas Gas and Electric Company (Wolf Creek Generating Station, Units No. 1) ALAB-279, 1 NRC 559, 571-72 (1965) as asserting that the regulatory scheme estab-lished by Congress in Section 105(c) proceedings was designed to " nip in the bud" any incipient antitrust situation via the NRC licensing review process.
Again, there is nothing in either of the two cited cases which leads inexorably to the conclusion that the application of res judicata or collateral estoppel to the findings in a prior antitrust proceeding before a district court could somehow frustrate this purpose of Section 105c.
It is worth repeating that CSW seeks to relitigate the events of May, 1976.
Congress did not give the NRC exclusive or even primary jurisdiction over antitrust matters involving electric utilities.
A moment's reflection reveals that Congress, especially in these days of budgetary restraints, would likely not favor needless duplication of the work already performed by a competent court.
1650 107 The Licensing Board further quotes (Order at p. 17) Pro-fessor Davis:
When the legislative intent is to vest primary power to make particular deter-minations concerning a subject matter in a particular agency, a court's decision concerning that subject matter may be without binding effect upon that agency.
(2 Davis, Administrative Law Treatise, Section 18.12 at 627-28 (1958)).
The Licensing Board is apparently using this as authority.for primary NRC jurisdiction.
The short answer to this was given by the Commission in South Texas, supra, where it stated that the NRC's antitrust expertise was not unique but that_.it merely applied principles developed by other more experienced agencies, and the courts.
It should also be noted that Professor Davis states that a decision "may be without binding effect" and does not state that it must be without such effect.
Since there is no legislative history indicating a Congressional intent that the NRC assume primary jurisdiction for all antitrust determinations when a utility happened to come before it, see supra at pp.
7-9, and since the NRC can accept the district court's findings without violating its Congressional mandate, the quoted material from Professor Davis'_ treatise does not support a Licensing Board assertion of primary jurisdiction.
~
Finally, the Licensing Board has overlooked two well-settled aspects of res judicata and collateral estoppel that were clearly articulated in two of the primary cases it relied upon in its October 5, 1979 order.
One reason the board did not apply 1650 108
, collateral estoppel was because there would be no " considerations of econcmy of judicial time" in applying it (Order at p. 13) citing Farley, suora, at 7 AEC p. 212.
However, the rest of the quotation in Farley states that res judiciata and collateral estoppel are also based on "the public policy favoring the establis-ment of certainty in legal relations. "
Id. at p. 212. Farley quoted the case of Commissioner v. Sunnen, 333 U.S. 591 (1948) for this proposition.
That case also stated that matters which were actually litigated and determined in the first proceeding cannot later be
'relitigated.
Once a party has fought a matter in litigation with the other party, he cannot later renew that duel.
Id. at p. 598.
The Court also stated that collateral estoppel operates, in other words, to relieve the govemment and the taxpayer of redundant litigation of the identical question of the statute's application to the taxpayer's status.
Id. at p.
599.
It is thus clear that relief from redundant litigation is as important as economy of judicial time in determining whether collateral estoppel should or should not be applied.
Since the above principles from Sunnen were recog-nized by the Appeal Board in the Farley case, they should be applied here to relieve TUGCO from relitigating the same matters that were determined in the district court.
Another reason for the Licensing Board's refusal to apply collateral estoppel was that it "would have only a procedural effect in this proceeding."
(Order at p. 13).
This is directly contradicted by the statement that:
1650 109 It is no objection that the former action included parties not. joined in the present action, or vice versa, so long as the judgment was rendered on the merits, the cause of action was the same and the party against whom the doctrine is asserted was a party to the former litigation.
- Thus, irrespective of whether the staff and the Department of Justice might be deemed parties to the disqualification matter because it arises out of the antitrust proceeding, t'he district court's decision is fully binding upon the city.
Toledo Edison Company (Davis-Besse Nuclear Power Station, Units 1, 2, and 3) ALAB-378, 5 NRC 557, 563 (1977).
The Licensing.
Board's attempt to make collateral estoppel discretionary in the current proceeding is thus contrary to the Appeal Board's declaration that it is fully binding upon a party to a prior proceeding regardless of the presence or absence, of the other parties.
VI.
CONCLUSION For the foregoing reasons, certification should be directed, the Order of the Licensing Board reversed, and CSW either dismissed or barred from litigating the matters listed in Houston's petition and Appendices A and B to TUGCO's Motion below.
R ] espe,ctfully submitted,
~,
L L'Lt b.7 Josep B.
Knotts, Jr.
DEBEVOISE & LIBERMAN 12'0'0 Seventeenth Street, N.W.
Washington, D.C.
20036 C. Dennis Ahearn DEBEVOISE & LIBERMAN 1200 Seventeenth Street, N.W.
Washington, D.C.
20036 OF COUNSEL:
WORSHAM, FORSYTHE & SAMPELS 1650 110 2001 Bryan Tower Dallas, Texas 75201 Date:
December 12,~1979
UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION In the Matter of
)
)
HOUSTON LIGHTING AND POWER CO.,
)
Docket Nos. 50-496A
- _al.
)
50-499A et (South Texas Project, Units
)
1 and 2)
)
)
TEXAS UTILITIES GENERATING
)
Docket No!.
50-445A COMPANY, _et _al.
)
50-446A
)
(Comanche Peak Steam Electric
)
Station, Units 1 and 2)
)
CERTIFICATE OF SERVICE I hereby certify that copies of "TUGCO's Response to and Joinder in Houston Lighting and-Power Company's Request for Directed Certification and Review of Rulings on Collateral Estoppel and Sum'"( Decision" in the above captioned matter.,
were served upon the following persons by deposit in the United States mail, first class postage prepaid, this 12th day of December, 1979.
Marshall E. Miller, Esq.
Mr. Jerome D.
Salt::: man U.S. Nuclear Regulatory Chief, Antitrust and Commission Indemnity Group hshington, D.C.
20555 Nuclear Reactor Regulation U.S. Nuclear Regulatory Michael L. Glaser, Esq.
Commission 1150 17th Strcet, N.W.
Washington, D.C.
20555 Washington, D.C.
20036 J.
Irion Worsham, Esq.
Sheldon J. Wolfe, Esq.
Merlyn D.
Sampels, Esq.
U.S. Nuclear Regulatory Spencer C.
Relyea, Esq.
Commission Worsham, Forsythe & Sampels Washington, D.C.
20555 2001 Bryan Tower, Suite 2500 Dallas, Texas 75201 Atomic Safety and Licensing Appea' Board Panel Jon C. Wood, Esq.
' U.S.
Nuclear Regulatory W.
Roger Wilson, Esq.
Ccmmission Matthews, Nowlin, Macfarlane &
Washington, D.C.
20555 Barrett 1500 Alamo National Building Chase R.
Stephens San Antonio, Texas 78205 Docketing and Service Branch U.S.
Nuclear Regulatory Dick Terrell Brown, Esq.
Commission 800 Milam Building Washington, D.C.
20555 San Antonio, Texas 78205 1650 lli Charles G.
Thrash, Jr., Esq.
Don R.
Butler, Esq.
E.W. Barnett, Esq.
Sneed, Vine, Wilkerson, Theodore F. Weiss, Esq.
Selman & Perry J. Gregory Copeland, Esq.
P.0, Box 1409 Baker & Botts A'2stin, Texas 78767 3000 One Shell Plaza Houston, Texas 77002 Jerry L. Harris, Esq.
Richard C. Balough, Esq.
R.Gordon Gooch, Esq.
City of Austin John P. Mathis, Esq.
P.O. Box 1088 Baker & Botts Austin, Texas 78767 1701 Pennsylvania Avenue, N.W.
Washington, D.C.
20006 Robert Lowenstein, Esq.
J.A. Bouknight, Jr., Esq.
Roy P.
Lessy, Jr., Esq.
William J.
Franklin, Esq.-
Michael B. Blume, Esq.
Douglas G. Green, Esq.
Fredric D.
Chanania, Esq.
Lovenstein, Newman, Reis, Ann P.
Hodgdon, Esq.
Axelrad and Toll U.S. Nuclear Regulatory 1025 Connecticut Avenue, N.W.
Commission Washington, D.C.
20036 Washington, D.C.
20555 John W. Davidson, Esq.
Roff Hardy Sawtelle, Goode, Davidson &
Chairman and Chief Executive Tioilo Officer 1100 San Antonio Savings Bldg.
Central Power and Light Company San Antonio, Texas 78205 P.O.
Box 2121 Corpus Christi, Texas 78403 Douglas F.
John, Esq.
Akin, Gump, Haver & Feld Mr. Perry G. Brittain 1333 New Hampshire Ave., N.W.
President Suite 400 Texas Utilities Generating Washington, D.C.
20036 Company 2001 Bryan Tower Bill D.
St. Clair, Esq.
Dallas, Texas 75201 Morgan Hunter, Esq.
McGinnis, Lockridge & Kilgore R.L.
Hancock, Director Fifth Floor, Texas State City of Austin-Electric Utility Bank Building P.O. Box 1086 900 Concress Avenue
~
Austin, Texas 78767 Austin, Texas 78701 G.W.
Oprea,. Jr.-
Joseph Gallo, Esq.
~~
Executive Vice President Robert H. Leoffler, Esq.
Houston Lighting & Power David M. Stahl, Esq.
Company Isham, Lincoln & Beale P.O.
Box 1700 1050 17th Street, N.W.
Houston,' Texas 77001 Suite 701 Washington, D.C.
20036 Susan B.
Cyphert, Esq.
Frederick H. Parmenter, Esq.
David A.
Dopsovic, Esq.
Nancy Luque, Esq.
U.S.
Department of Justice Antitrust Division P.O.
Box 14141 Washington, D.C.
20044 j Sarah Welling, Esq. Michael I. Miller, Esq. Kevin B. Pratt, Esq. James A. Carney, Esq. Attorney General's Office Isham, Lincoln & Beale State of Texas One First National Plaza P.O. Box 12548 Suite 4200 Austin, Texas 78711 Chicago, Illinois 60603 Frederick H. Ritts, Esq. Don H. Davidson William H. Burchette, Esq. City Manager Northcutt Ely City of Austin Watergate 600 Building P.O. Box 1088 Washington, D.C. 20037 Austin, Texas 78767 W.S. Robson ' General Manager South Texas Electric [. Cooperative, Inc.. m, um Route 6, Building 102 C. Dennis Ahearn Victors.a Regional A.trport ~ ~~ Victoria Texas 77901 r Robert C. McDiarmid, Esq. Robert Jablon, Esq. Marc Poirier, Esq. 2600 Virginia Avenue, N.W. Washington, D.C. 20037 W.N. Woolsey, Esq. Dyer and Redford 1030 Petroleum Tower Corpus Christi, Texas 78474 Donald M. Clements Gulf States Utilities Company Post Office Box 2951 Beaumont, Texas 77704 Marc i.i. Wetterhahn, Esq. Robert M. Rader, Esq. Conner, Moore & Corber 1747 Pennsylvania Avenue, N.W. Washington, D.C. 20006 \\650 \\ 0}}