ML19260E072

Notifies That Subj Utils Have Filed Three Review Petitions Including Allegation Re Aslab Method of Dividing Antitrust Review Responsibilities.Forwards Decision in Civil Antitrust Case in Northern District of Oh

ML19260E072
Person / Time
Site:	Davis Besse, Perry
Issue date:	01/29/1980
From:	Reynolds W SHAW, PITTMAN, POTTS & TROWBRIDGE
To:	Chilk S NRC OFFICE OF THE SECRETARY (SECY)
References
NUDOCS 8002130283
Download: ML19260E072 (31)

Text

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$ I Mr. Samuel J. Chilk -

M 3{ $$ W# -5 Secretary U.S. Nuclear Regulatory g otncetl%g Commission Ontdyn p Washington, D. C. 20555 D a Re: The Toledo Edison Company and The Cleveland Electric Illuminating Company (Davis-Besse Nuclear Power Station, Unit 1)

NRC Docket No. 50-346A; The Cleveland Electric Illuminating Company, et al.

(Perry Nuclear Power Plant, Units 1 and 2)

NRC Docket Nos. 50-440A and 50-441A; The Toledo Edison Company, et al.

(Davis-Besse Power Station, Units 2 and 3)

NRC Docket Nos. 50-500A and 50-501A

Dear Mr. Chilk:

There are currently pending before the Commission three Review Petitions filed in tht sve antitrust proceeding by Duquesne Light Company, by Ohio Edison Company and Pennsylvania Power Company, and by The Cleveland Electric Illuminating Company and The Toledo Edison Company. One of the grounds on which Commission review has been sought relates to the highly irregular manner in which the members of the Appeal Board divided their antitrust review respon-sibility among themselves -- effectively eliminating meaningful interchange with one another regarding admittedly differing opinions as to certain factual matters of record and legal conclusions, and also depriving the parties and this Commission of a reasoned de-cision which adequately identified those particular fi.ndings on which the Appeal Board's conclusions rested.

8002130

• SHAW, PITTMAN, POTTS & TROWBRIDGE Mr. Samuel J. Chilk January 29, 1980 Page Two Similar concern with the manner in which the Appeal Board exercised antitrust review in this proceeding was recently voiced by Judge Krupansky in the civil antitrust case pending in the United States District Court for the Northern District of Ohio in City of Cleveland v The Cleveland Electric Illuminating Company, et al.,

Civil Action No. C75-560. We are enclosing a copy of the January 15, 1980 Memorandum and Order containing Judge Krupansky's remarks, together with the Appendix thereto, for the Commission's information in connection with its consideration of the aforesaid Review Petitions.

Respectfully submitted, h ,- - .\ A W Wm. Bradfor eynolds Counsel for the Applicants WBR:ats Enclosure cc: Chairman John F. Ahearne )

Commissioner Joseph M. Hendrie )

Commissioner Victor Gilinsky )

Commissioner Richard T. Kennedy)w/ encl.

Commissioner Peter A. Bradford )

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THE CLEVELAND ELECTRIC ) -

3 ILLUMINATING COMPANY, e t al . ,) , j

) 1 Defendants) "E'f0RaNDf'M AND ORDER '

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, KRUPANSKY, J. A l

Presently before the Court is the City of Cleveland's

, Motien for an Order in Licine whereby said plaintiff urges the l

I Court to accord conclusive effect in the instant proceeding to l

certain factual deter =inations made by the Atomic Safety &

Licensing Board of the Nuclear Regulatory Commission (""RC"),

as afficred by the NRC's Atonic Safety & Licensing Appeal j 3oard, and to bar introduction at trial of any evidence incen- '

I

sistent with such facts. Ignoring this Court's previous rulings l

to the centrary, plaintiff currently urges the Court to invcke the doctrine of collateral estoppel in order to preclude herein the relitigation of fac cal matters resolved in the course e licensing proceedings befcre the afcrarcationed subsidiar -

boards of the ?.RC.

De fend -ts have respended in cppositi I

the instant notion.

l Cn three soparate cecasfors, th's Court ha s cc as f .'. r.:d i

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and rejected the contention that the doctrine of collateral estoppel is properly applied to the *adninistrative determina-tiens of the URC and/or the Federal Power Coccission ("F?C").

Thus , by Menorandum and Order issued February 15, 1978, the i

j Ccurt, i- denying defendant C".I's "otion for Partial Su= nary

! Judgment and for an Order 4-Linine, expressly declined to

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' A) i apply in the instant proceeding either the doctrine of res f I

i judicata or that of collateral estopoel to the administrative -

deter =inations of the FPC. A review of this Court's decree ,.

discloses that the foregoing resolution was predicated in [

significant part upon the fact that administrative proceedings before the NRC and FPC had produced entirely discordant and i 4

inconsistent findings. The Court reasoned: j 1

One final consideration which cerits j review significantly impacts the Court's decision to reject the doctrine of collateral 2

i estoppel. On several prior occasions, allega- . l tions of anticcepetitive activities of defen- )

dant CEI and others have been raised in various proceedings before nd-taistrative .k agencies of the United States, in particular, the Federal Fower Commission, the Atomic '

r Energy Ccncission, and the Nuclear Regulatory Cc missiot (URC), none of which is pcssessed of jurisdiction to entertain claims under the Sherman '.ct and to afford the parties thereto a statraory re=edy for violations of the Act.

The co.itention that the opiniens of one of those administrative azencies should bear sc=e res iudicata/ collateral estoppel effect upon tEese proceedings logically argues for the sane deternination with respect to the opinions of all of those administrative -

agencies.

i

! The resolution of the issues presented I

to the FPC and the "RC has resulted in a l

spate of indecisive rulings and conflicting opinicas. This Court cannot defer a full and fair presentation of the evidence to the j discordant and inconsistent findings of the F?C and the SRC. To invoke the doctrine of  ;

cellateral esteppel by adopting the conflict-ing administrative decisions and the antithe-

, cical findings of fact of the FPC and the NRC i would blanket these proceedings with an l impenetrable stygian fog of cenfusion and

[ dcubt. This Court shall not becere a party l

t to this administrative chaos.

l Menorandum and Order, February 15, 1978, at p.5.

I The pronouncenents of the forezoing candate were subsequently reaffirmed by this Court in its Order of February  !

I 17, 1973. There, the Court refused.co stay its hand pending l cenpletion of the "RC licensing proceedings, writing in caterial part:

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In support of the proposed continuance, >

plaintiff asserts the doctrine of pritary )

jurisdiction and further offers the final

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decision of the ::RC, whenever it =ay issue, '

as cenclusive of the issues joined herein.

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i The recuested continuance would be t arranted only if this Court were to find the final decision of the NRC relevant to the proceed- ,

ings before this Court by applying the doc-trine of collateral estoppel. However, as previously stated in its order of February  ;

15, 1978, the Court may not invoke the doc- l 3 trine of collateral estoppel with respect to i the rulings of either the Federal Pcver  ; )

Cc==ission (FPC) or the NRC. i 1

As the Court has concluded, the conflict- -)

ing and inconsistent decisions of the FPC and - 4

, the NRC shall not provide the rule of order 1 by which these proceedings shall be conducted. .

The NRC, and its subsidiary hoards, are  ;)

• neither interpretors nor guardis.ns of the antitrust la.es of this nation. Although the l' URC cay have developed a particular expertise ',

j in catters involving the nuclear generation i of electrical pcwer, this narreu field of experience does not exta.d to that administra- '

! tive agency any unicue insight into the l intricate legal interpretations and aoplica-tiens of the Sherman and Clayton Acts or

! bespeak an expertise in antitrust law.

! Section 2133(c) of Title 42, United States

! Code, does not cloak the NRC with the cantle i of judicial utsdom and experience, and statu-tory authority, through which the United States district and appellate courts have shaped and guided this nation's antitrust law for nearly a century. :n accordance with the j fcregoing conclusions. the Ccurt reiteratas -

. its rejection of the doctrine of collateral l esteppel and adopts herein its pronounce 2ents of law anncunced in the Order of February 15, <

l' 1978.

Order, February 17, 19 7 8, pp. 3-6 ( ~ootnotes c-itted).

This Court was presented wish a third c:portunity to assess the propriety of assigning estoppel effect to the fore-

! ;oing ad inistrative detercinations hy the Motion in Limine of I

defendant Toledo Edison Company. Consistent with the principles l articulated in the aforementioned Orders, this Ccurt once again i

j declined to afford binding effect or otherNise defer to the ad=inistrative findings and deter =inatiens of the MRC or the FPC. Indeed the Court, by Menorand$c and Order issued t.ugust 10, 1979, entered an order in 11=ine which, in clear and unequi-vocal language, instructed the litigants thusly:

Accordingly, for the foregoing reasons ,

during the course of trial, no carty shall,

in the presence of the jury, allude to, refer ,

• o, or attempt to convey, either directly or i

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indirectly, in any nanner the findings, con- I clusiens. deterrinaticns, or substance of any .

, "RC or FPC administrative determination as l l

such determination reflects uoan the defen- * .

dants' acts alleged herein to'be in violation  ;

T of Sections 1 or 2 c' mm Sherran Act.  :

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Mecorandum and Crder, August 10, 197', at p. 5. {

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This Court regards its 'revious mandates of February  ! ;

15, 1978, February 17, 1973, and Augus t 10, 1979, .ehich are  :  ;

incorporated herein and =ade a part hereto, as dispositive of A g

the issues joined by the cotion at bar. The Court, having y I

carefully reviewed the instant record, is not persuaded that a )'

s departure frem its prior decrees is currently carranted. =3 i

Indeed, the Cecre aould observe, as discussed more fully belcw, l

3 that events transpiring subsequent to the issuance of the )

aforesaid Orders sculd appear to both confirm the soundness of ,

this Court's previous resolutions and demonstrate further the inpropriety, if not the infeasibility, of applying collateral i

, esteppel principles herein to the administrative findings of j l

the NRC. &

Ateng the established prerequisites to the application

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I of the collateral estoppel doctrine is the requira ent that the determination in the prior proceeding he necessary and essential l

to the resulting judgment. 13 J. Mocre, Federal Practice i

10.443[5] (2d ed. 1974). See Restatenent (Seccnd) of Jodements i

563, Con =ent h (tent. draft No. 4, 1977), Parklano Mosterv Con-i i ranv, Inc. v. Sh o e , 439 U.S. 322, 99 S.Ct. 645, 649 n. 5  ;

I 1 (1979). As stated by the Sixth Circuit Ccurt of A peals in 1

I United States v. School District cf Ferndale, 577 F.2d 1339, 1

1349 (6th Cir. 1973):

It is basic to the law of collateral esteppel }

that a finding in ene prcceeding cannot bind i tribunals in subsequent cases unless the finding acted as a basis for final judgnent j in the first.

In applying this fundarental principle, the Court is 3

constrained to conclude that it is currently impossible to i

I ascertain with any appreciable degree of accuracy and reliability 1

! the specific factual determinaticns .ehich in actuality underlie - .

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l Board (" Appeal Board"). The Court would observe initially that

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precise identification of those findings necessary to the Appeal 3 card's resolution would appear precluded by the rather l 1 f

irregular nanner in which the three nonber Appe al Panel arrived >

I at and issued its decision of September 6, 1979, and the uncer- ,

tainties created thereby. A revieu of said decision 1/ discloses N a.

' I that the cember of the Appeal 3 card assigned the responsibility i3

.)

of drafting the panel's opinien, Jercee E. Sharfran ("Sharfran"). - ;'

resigned frcm the ::RC shcetly af ter completing the opinion but y I '

before the same could be fully reviewed by the tuo remaining i

l nenbers of the panel. To avoid the appearance of inpropriety,

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the remaining a, bars c: the Anpaal Panel felt obliged to e 2

l refrain from consulting alth Sharfran at any tire subsequent to his departure. The ranifications ensuing from this some -that t

l irregular crocedure were described by the nondeparting cembers ,.

l of the panel at the very outset of Appeal Board Cecision: ,

i

Shortly after cc.pleting his opinion,

! hewaver, our colleague resigned f rc: the l Appeal Panel to enter private law practice in

another city. *t .

a s in:cssible for us to i cceplete cur evn review of "r. Sharfran's l lengthy decision before his departure. And i since that time, censiderations of avoiding even the accearance of a conflict of intarost l situation n've a served to preclude our discuss-ing with him any aspect of this proceeding.

Had "r. Sharfman remained a ec=ber of this Soard, or continued to be available for censultation, va ~1cht uell have succested revisions in his treat ent of certain issues anc nave encesvoree -in otner ressects to cer-susce ht, or tne cc:rectness or our views

, (particularly on the question of relief) to I the extent that they do not coincide with

his. These cpticns have not hean ?ca to us.

In the circunstances, we file his opinion as it was presented to us (pp. 65ff., infra.).

' e concur in its ultinata factuil anc legal

! conclusiens and tne renI in it reichas j I except where indicated in;our separate opinion, I I

which follows irnediately.

NRC Appeal Board Decision at p. 3, (caphasis supplied). The i

panelists' lack of unanimity with respect to certain anspecified  :

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The decision of the Appeal Board is before the Court pur-suant to the plaintif f's Motion for Leave to Lo d g e , filed Cctcher 25, 1979, which the Court hereby grants.

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i issues was further :(flected in a later passage free the sepa-rate opinien of the two remaining Appeal Soard me=bers: . .

I The remaining issues raised on appeal  !

ceriting extended discussion are covered in  ;

Mr. Sharfnan's cceprehensive and copiously l annotated opinion (uhich begins at p. 65, a e infra). As we centinrod earlier, had circum-  !'

stances not intervened we night have suv ested I !

revisions in nis treatment o: certain c: tnem.

• i Perusal of his opinion persuaces us, hcwever, =}

that our former colleague's disposition of 's

, cast of the issues is sound and little would - 't be gainec by accing cur sacarate analyses to  : $*

his lengthy discourse. We therefore join in his ultimate factual and legal conclusions e except enose dealing with relief. .-'Je disagree 2 I

with some of these and we turn to then now.

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Id. at p. 41 (emphasis supplied). ,

It is apparent from the foregoing that a numerical tsjority of the Appeal Scard expressly linited their con:arranta i

with Sharfran's lengthy and detailed opinion, wherein a prepen-

! derance of the 3' card's detereinations are contained, to the i

"ultirate factual and legal cenclusions" expressed therein.

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Significantly, the majority specifically disavoued concurrence

, with an undisclosed nunber of Sharfran's factual and Icgal I

i resolutions, advising in fact that, had -he opportunity been ,

presented, certain unspecified revisions in the departing i

rember's opinica would have been suggested.

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Given the failure of a majority of the appeal ?vnel l

l to etbrace aithout reservation the legal and factual conclusions i contained in Sharfran's opinion, or to delineate with scre pre-cision the spacific deterninst!.ons fcund objecticnable or 1

acceptable, it cannot reasonably be denied that scricus ambiguity i

exists with res

ect to the actual findings un f orlying the l d

j Appeal Board's decision.13/ It is equally apparent that col-e l

! j lateral estoppel cannot properly obtain where, as here, the underlying decisicn in the prior proceeding is entirely ambigu-l l ous as to the factual findings necessary to supoort it. See l

l United States v. School District of Ferndale, suora at 1349-50.

1 I

't i As defendants CEI and Duquesne Light have argued, it is . i virtually " impossible to knew not only t6at facts were neces- ,

sary to the cocision of the Appeal Board, but. note basically, ,

I what facts the Ao.r. cal ? card actually found." Joint "anorandum in C:pesitica to City's "otien in Linine, at pp. 11-12.

i i

1 7 In view of the manifest ambiguities perreating the resolution i of the Appeal 2 card, as described abcve, the Court is constrained , _ .

Y to emphasize once again its unwillingness to "becc=e a party to i this administrative chaos." !3

' 4 The Court would obserie additionally that identifica- i j

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tien of those factual determinations necessary and essential to :j i

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the NRC's decision appears foreclosed at present by the absence j of any final agency action. A review of the instant record .f. _

I discloses, for exa:ple, that each of the defendants involved in the SRC licensing proceeding have petitioned the full Cc =ission j

' r for review of the Appeal Soard's decision. !n .he event the t

- Commission elects to undertake such review, it vould appear -

V

$52.1 et seq.,

l under the MRC's Rules of ?ractice, 10 C.F.R.

I-that the Concission is fully authorized to review the Appeal Board's decision with respect to catters of law and policy. 10 C.F.R. $2.736(b)(4)(i). While the full Commission is not, as plaintiff correctly asserts, enpcuered to disturb those factual I

l detereinations initially resolved by the Ato7ic Safety 5 Lican-I i

sing Scard and affirmed theraaf ter by the Appeal Scard, 10 i

C.T.R. 52.736(b)(C)(iv), the Cornission ray, pursuant to its authority to reconsider questions of law and policy, materially alter the Appeal Panel's decision. Should significant rodifica-i I'

tions in the Appeal Scard's resolution ensue as e result of the full Co==ission's review, any collateral estoppel treatment to be afforded the NRC's subsidiary boards' factual findings 5.ould correspondingly be altered by application of the aforecentioned principle that only findings necessary to the prior judgment t

. may be given subsequent ostoppel effect. I In view of the pendency of the aforesaid petitions  ;

for further ad=inistrative review, the Court at this juncture l t

can only speculate as the substance of the NRC's final decision j

and the factual determinations which may ultimately prove l-i necessary to that decision. Even assu=ing then that the core '

t lfundamentalobjectiens to the invocation of collateral estoppel i

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i principles enu=erated in this Court's above-cited Orders cculd be overcome, an assumption, incidentally, this Court regards as -

entirely without foundation, the Court would nenetheless be  ;

' a constrained under the present circumstances to join and apply .

a, i herein the prevailit. view that.adelnistrative findings cannot II L

i i, I be afforded estoppel effect absent final agency action. See j l

Coca-Cola Cec.cany v. Federal Trade Connission, 475 F.2d 299, 4 l'

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304 (5th Cir.), cert. denied, 414 U.S. 377, 94 S.Ct. 121 (1973); i

)

Continental can Coreanv, U.S.A. v. 'ta r sh a l l , 503 F.2d 590, l

. 1 j 594-96 (7th Cir. 1979)< United Telechene Cor.cany of Pennsv1vania i

, v. Federal Co- unica tions Cornis sion , 3 75 F. Supp. 992, 99 7 n.3 i, (M.D. Fa. 1974); -cf. Cuneein v. Zayre Seoart ent Store, 437 F. -

Supp. 100, 133 (S.D. Nis. 1977). In addition to its more

! fundamental shortcomingsl/ then, plaintiff's notion vould

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appear to be pre =ature at this time.

-3/ A review of this Court's prior Orders discloses that its l failure to invoke collateral estoppel principles has been pre-dicated in significant part on the recognition that the statu-f tory randates of the foregoing administrative forums dif fer substantia!!) 2nd aterially frem. Phat of a tribunal presiding i over a civil antitrust action. See Tioler v. E I. du Pont de .

• encurs and Co., 443 F.2d 125, 1H~2I(Tih7t r . 1D1) . It could appear trem the recent decision of In the ' fatter of i

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"ousten Lirheine and Pouer Co., (South Texas Froject, Units l 1 anc 2), Loccet Ses. 5 0 -CTECT 50 -19 9 A , (October 9, 1979),

I thic a SBC licensing to.trd is in cenplete agrec=ent. T'aere, the licensing board refused to be bound by the antitrust findings of a United States District Court, reasoning in pertinent part:

(Clonsideratien cust be given to the ccapara-bility of the issues involved in the two oreceed-ings when the application of res indicata or col-lateral estoppel is invoked. !Tsues are not iden-tical if the second action invnives the application of s diffecent lezal standard, even thcuzh the fact-uti setting of both proceedings may be the sane.

Thus the same historical facts cay be i. rec 1ved in two actions, but the leg 11 significance of the facts may differ because different legal standards are applicable to them. . . .*

The instant proceeding involves a finding under

$105c(5) whether the activities under the license would create or maintain a situation inconsistent '

with the specified antitrust laws (42 U.S.C. 52135 (c)). Such an inquiry covers a broad range of acti-vities considerably beyond the secpe of the " viola-tion" standard of Sectica 1 of the Shernan Act. It is well established that in a Section 105c proceeding, it is not necessary to show an actual violation of the '

antitrust laws. . . ,

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l The Court would observe lastly that the Supreme i

i l Cour 's recent decision in Parklane Mestery Cercanv, Inc., 4 i

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! suora, lends substantial support to this tribunal's consistent

! i i refusal to apply collateral estoppel principles to the fore;oing  ;

j j administrative detereinstiens. In ? ark 12ne, the Supreme Court  !

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expressly affirmed the discretion of the trial court to dete - 8 4

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_q l cine when the principles of collateral estoppel should properly j A

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obtain. The Court reasoned that " broad discretion" xas appropri-l n}

ately ecnferred upon the district courts in order to safeguard a

! litigants against potentially inequitable arplications of the .

j

, collateral asteppel dcctrine. Id., 99 S.Ct. at 651. Of parti-1 cular significance to the instant controversy, the Court express-ly intimated that a defendant vould be unjustly burdened by invocatien of estoppel principles in the instance Scre "the I judgment relied upon as a basis for the estcppel is itself I

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inconsistent with one or more previous judgments in favor of I

the defendant."Id.-

This Court has emphasized in its previous Orders the incensistent 2nd indeed antithetical findin;s of the F;C and t' e :PC. See in particular Mamorant:0 and 'rder, Februsry 17, 19 7 3, at pp. 3-4, n.l. In view of these discordant administra-l tive determinations, and in accordsnce ,ith the equitable u

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consideraticas of Farklane, sucra, 12e Starker v. inited States,

[T]here are substantial differences between the standards and issues involved in the Sherman Act.

Section 1 suit based on restraint of trade by cen-i carted action as alleged in the District Ccurt

! litigation, tihen contr asted ':ith the issues

! involved in this proceeding arising frc: allega-tions of noncpoli:ation (Sherman Act, Section 2),

unfair methods of competition (FTC Act, Section 5),

! and inconsistency with unjerlying policies of anti-trust laws (Sectica 105c). there, as here, the legal standards of two statutes are significantly different, the decision of issues -+;er cne statute does tot give rise to collateral estoppel in the litigation of similar issues under a different statute.

I, In the Matter of Meuston Lizhtinz and Power Co., sucra at j pp. 5-10. (footnotes cettted) ,

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502 F.2d 1341, 1343-49 9th Cir. 1979), the Court can only

conclude that

the principles of collateral estoppel cannot be I

exter.ded to either the ::RC or the FPC adninistrative deternina-

! tions consistent with eier:entary principles of fairness and

' justice.

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For all the reasons stated hereinabcve, the Court , t f finds the plaintiff's Motion for an Order in Linine without i j4

, rerit and prcperly denied. *

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IT IS SO ORDERED. j

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THE SCRTHERN DISTRICT OF CHIO -

EASTERN DIVISION ,

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" CITY CF CLE'.*ILA'.ID, ) CIVIL ACTICN 50. C7 5-560 l ia

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. 'j;3E CLE7ILAND ELECTRIC ILLUMINATING CO., et al.,

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1 Osfendant Cleveland Electric Illu=insting Co. (CII) t i

has filed a M0 tion for Partial Su==ary Jed;:ent snd for an Crder In Licine seeking to bind this Court to a ruling of the I

i

'T**a al Power C ==ission (FPC), cursuant to the doctrines of t

i _res fudicata and collateral estepe.el. Plaintiff respended in I,cpposition and furthermore sought leave to lodge an F.:C Cpinion li f,;with the C:urt to assist in its datermination of defendant's

'l M: tion for Partial Sc= nary Judgment. Oefendant CEI filed a i

I

respense thereto asserting that it had no objection to the I l filing of said FPC Cpinion. Accordingly, the 5

cticn for Leave i to Lodge FPC Coinion is hereby granted.

f I

! The dc: trine of res judicata is succinctly stated at t

46 Am. Jur. Id Jud; rents $394 at 553-559 (1969):

i 1

, [T]he doctrine cf res judicata is that an l

existing final judgment rendered upon the

merits, without fraud or cellusicn, by a i court of ccrpetan

;urisdiction, is conclu-

, sive of causes of action and facts or issues

thereby litiga:ed, as to the parties and I

l their privies, in all other actions in the

' same or any other judicial tribunal of con- ,

f current jurisdicticn. (fedtnotes Omitted) .

I see, Crerwell v. County of Sac, 94 U.S. ". 51 '1377); '3 ;eski

1. -

lv. City of tuskeecn, 550 F.2d 1075 (6th Cir. .977); Brachett is

v. Universal Life Inserance Coreany, 519 F.2d 1073 (5th Cir.

f f

l')

M s

. b 1

i 1 , .

1

=

.)

E  ; T v

t i

l Roebuck and Co., 454 '

Pan American Match, Inc. v. Sears, fl975);

cert. denied, 409 U.S. 392 (1972); Harrison '

l v.2d 871 (1st cir.), ,

I nc ._, 435 F.2d 1192 (6th

[ . Blocefield 3uildine Industries, State 3 card of Chir 0eractic Examiner _s, Cir. 1970); Fivna v. Lindslev, 391 F.2d 965 Savler v. .'

h,J413 F.2d 559 (9th Cir. 1969);

see also, E2rt v. Federal Reserve Bank of (2d Cir.1963) ; }

1966), aff'd, 379 F.2d A

, lAtlanta, 270 F. Supp. 296 ( -: . D. Tenn. 6 i- denied 390 U.S. 924 1963) .

961 (6th Cir. 1967), cert. )

E'lI The doctrine is, moreover, extenfed to include within

/.-

rt i e

> its scope those issues which could have been, but v._ were not, i first action. .cceski l

3 i

'actually raised and decided in the  !

h of Mskegcq, suo ra_: 3rachett i -Universal Life Insurance 3_ity C -

State 3 card of Chirocractic Examiners, surra: Fivnn v.

d, C_:=c anv , ,

Savlor v. Lindslev, supra.

l supra; f Collateral estoppel, an cffshcot of the doctrine o l 441[2]

[res iudicata, is defined at 13 Moores Federal Practice 10.

a

!at i

3777:

t The essence of collateral estcppel by jud7:ent in fispute has

{ is that sc=e questien er fact .

j

, been judicially and finally de: ermined by acourt o ,

j same parties cr their privies.

i I ciple of such an es:Oppel may be stated asWhere ther follows:

I parties, er their privies, who are bound by abut the second l judprent rendered in a prior suit, actica involves a different in the claim, cause, first suit or cperates l demand, the judgm2ntas a collateral in est:ppel issue as or to, but cnly as to, those eatters er points which were h

,l centroverted andnecessarily u_cn thedepended.

determination(f oo t- of whic f

the initial judirent l,

notes emitted) f actica, i

! Where ras iudicata requires identity of causes o Where y!, collateral esteppel requires identity of f actual issues.lusive i

! res iudicata renders the earlier final adjudication conc l

litigatien, collateral estep el renders I

of all such subsequent  !

issues et fact necessarily litigated.

j I conclusive only those J I

44 3 F .2d 125 (6 th

! dupont de Nemours and Co.,

( Tipler v. E.:.

l Cir.1971) .

I I,

t I

)

'e i ..

t _

y I

.y.

5 l

l l l t

i The doctrines of res judicata and collateral estoppe '

i by a court of co:- ,

' speak in ter s s of " judicial daterminat ons

! Nhile it is certain beyond peradventure ' 3

!petentjurisdiction." i i l tribunal of ,

i

' that tae Federal Power CO =ission is not a jud c a t

I District Court,  !

5 i

t jurisdiction concurrent with a United States i i

Iunder certain circumstances, the final decisions of administr 4

i hagencies may be given a res judicata or collateral 1

334 esteppel a Y

See e.g.,

United States v. Ctah Construction Co.,  %-

and Co._, suora. The

! effect. -

(1966); E.I. du?cnt de Nar urs U

"h.S.934[ doctrines are nonetheless applied more se Grose v. C: hen, 406 T.2d t,

administrative finding is involved. I i

School District of Farndsle,  ;

823 (4th Cir.1969); United States v.

As stated in

(E..D. Mich. July 25, 1977).

' Case No. 75-70958 Grese v. C: hen _, sucra_ at 324-825:

3 k 2es judicata of administrative decisions is not encrustad with the rigid finality thatin judicial proceed-

[

l characterizes the precept 276 F. 3upp. 270, ings. See Farley v. Gardner, Application of the doc-i 272 ( S .D. W .Va. 1967).

i trine often serves a useful purpose in prevent-

{

ing relitigation of issues administrativelye.g. , Sansh determined, 331, 402, 60 S.Ct. 907, 34 j v. Adkins, 310 U.S. but practical reasons may j

L.Ed. 1263 (1940); e.g., United '

i exist for refusing to apply it,274 U.S. 225, 47 i

States v. Stone 5 0:wner Co.,

[ 616, 71 L.Ed. 1013 (1927). And in any s

S.Ct. when traditional concepts of res judicata~

do not work well, theyinjustice.

shculd be relaied^or event, l 2 Davis, 1

qualified to prevent i

Administrative Law, 513.03 (1958).

! The Sixth Circuit Court of Appeals has furthermore b

jrecogni:ed that if neither collateral estoppel nor res judicataBoth rules are qua l is rigidly applied.

' or rejected when their application would con- lt travene an overriding public policy or resuL= migration in canifest injustice. Title322 v. F.2d 21 (9th j

i and Naturali:stien Service,v. Gardner, 236 F.

Cir . 19 5 3) ; Matias1963);

RiveraCid Outch Farms, Inc.

! Supp. 305 (D.?.R. Cairy Enployees Local Union l; v. Milk Drivers &Supp. 971 (E.D.N.Y. 1969); 13 i

No. 534, 231 F. 0.405[12], at 791; Moore's Federal practice t2 K. Davis, Administrative Law t

at 543 (1953). i

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i.

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3 pTipler v. E.I. duPent f e tiercurs and Co., suora at 128.

The opinion of the FPC which is at issue here was rendered within the centext of a prcceeding under Section >

'202(b) of the Federal Fewer Act, 15 U.S.C. 5324(a), for an ,

i crder requiring CII to establish an electrical interecnnection vith the City of Cleveland. Although alleged antice::etitive !s jyractices by CII were ultimately raised by the City in that -f hi the underlying cause of actica was not fcunded upon j ii hl preceeding, Sections 1 and 2 of the Sherman Act, 15 U.S.C. 551 and 2, as is

the present centroversy. The failure of identi y of causes of I

' action precludes resort to the doctrine cf gas judicata.

h Jurthermore, pursuant to Section 15 of the Clayton Act, 15 0

OU.S.C. 515, Congress vestad the District Courts with exclusiv=

I  !

l jurisdiction to adjudicate claimed violations of the antitrust l l

l tlaws, and the doctrine of re_s judicata is particularly inap-

,i i forum lacks the ability to afford the j hlpropriatewherethefirst  !

Prelief sought in the secend ferum. Cream Too Creamery v. taan

~

11 11 0411k Ccetany, Inc., 383 F.2d 353 (6th Cir. 1967).

i The Court s'ao cbserves that I

i l

absent a special consideration, a determination i

I arising solely under one statu:e should not l

autcratically be binding when a similar cuestion l I arises under ancther statu e. See Title v. l

! Immigraticn and ::aturali:aticn Service, 322 i F.2d 21, 25 n. 11 (9th Cir. 1963); 2 K. Davis, i Ad=inistrative Law Treatise 513.04, at 577-78 (1958); cf. Cc missioner of Internal ?.evenue v.

I Sunnen, 3II U.S. 591, 601-602, 68 S.Ct. 715, 92 j L.Ed. 398 (1943). This is because the purpcses,  !

I requirements, perspective and configuratica of .

! different statutes crdinarily vary.

I

!-isler v..E.I. duPent dsNemours and Co., sutra at 123-129.

O Admittedly, in ruling upon :stters involving the'intercen- l' nection and coordinatien of electrical generating facilities lh

the FPC may censider allegations of Inticc petitive prictices. l ll lievertheless, the decisien of the FPC was premised upcn statutory authority wholly different from that which places the issue b

i before this Court. Furtherrore, within the centext of the TPC ,

I i

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I'

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preceedings, a deter =ination that defendant CEI had in fact '

engaged in anti-ec=petitive practices was not an i=autable '

. i prerequisite to the granting of the requested relief. In i i

I consequence thereof, collateral estoppel is . equally inappropriate l

I in these antitrust proceedings. 3 I

i one final consideratica which cerits review significantly 4 i= pacts the Court's decision to redect the d:ctrine of collateral d a s s

J

.  ! estoppel. On several prior ocessiens7 allegaticas of anticc=- .a 4

4 petitive activities of defendant CEI and others have been I l =

i

raised in 'raricus proceedings haf.re administrative agencies of 3 3

the United States, in particular, the Federal Pcwer Cc==ission,

~

I 1

the Atomic Energy Cct=ission, and the Nuclear Regulatory Ccenission ' (

.i , . 3 (NRC), ncne of which is possessed of jurisdiction to entertain t

l claims under the Sherman Act and to afford the parties thereto ,

t

! a statutory remedy for violati ns of the Act. Che ccntentica i ,

i that the cpinions of One of those administrative agencies '

should bear seme _res judicata/ccllateral estoppel effect upon i  :

l these precaedings logically arguas for the same datermination ,

i i i

with r2spect to the opinions of all of those administrative

,agnncies.

l l

i The resolution of the issues cresented to the FPC and

! the NRC has resulted in a spate of indecisive rulings and

cenflicting opinions. This Court cannot defer a full and fair l

l presentatica of the evidence to the discordant and incensistant t

findings of the FPC and the NRC. To invoke the doctrine of collateral estc;pel by ad:pting the ccnflicting administrative decisions and the shtithetical findings of fact of the FPC and i i

I the NRC would blanket these preceedings with an impenetrable 1 i

)  ; stygian fcq cf confusien and doubt. This Court shall not i t

I' become a party to this administrative chaos.

l Accordingly, defendant's Motion for Partial Sc==ary Jud7 ment and for an Crder in Limine is hereby denied.

IT IS SO CROERID.

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THE CN! TID STATIS DISTRICT CCURT CLIiELA:.0 '

l THE SCRTHERN DISTRICT CF CHIO I-4 EASTIRN DIVISICN  !:

' CITY OF CLIVELAND, ) CIVIL ACTICN NO. C7 5-5 60 ,

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$ h f - 1 i 2efore th2 Csurt is tha February 7, 1977 "3tica of I i  ! f Plaintiff to stay Trial of this Actica p2nding the final dis- >

f l.

position of the proceedings before the Nuclear ?r201 story '

i ,

lCc==ission.The d

timing of this Motion, considered within the L

[ historical context of these procesfings, necessitates a review '

i l

of the numerous forestalled attempts to bring this acticn to I

l trial. .

l This action was initiated with the filing of a Ccm- i .

e

! plaint on July 1, 1975. In view of the significanco of the i

claims and allegations cresented therein, the Court, in an  !

4 t l effort to accc==cdate plaintiff's express desire f;r a speedy l

! l

! dispcsiti:n, initially assigned a trial date of January 19, ,

( 1976.

Ecwever, upon tha urging of plaintiff that alditional l I

! I time was necessary to c: plete discovery and upon the *presenta-tion that setclerent negotiations were then unferway, the I

Court continued the trial date to '!srch 1, 1976 and set aside '

l the initial days of that proceeding for i

an evidentiary hearing 1on the City's Motion to Disqualify ccunsel for daf+ndant iCleveland Electric Illuninating Cenpany (CEI), the law .irm -

j

! of Squire, Sanders i Cempsey (SSsD). Upon the further assertion i'

of the parties thr.- -he aforesaid settlemenc negotiatic , might

$ Ccurt

, prove fruitful wi - an c'fitional extensica f ti e, L s

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l '

I i ence again centinued the trial date and hearing on the Motion to Disqualify to March 15, 1976. '

At a March 12, 1976 hearing, the Court was again ,

i=portuned by the City to continue the trial date in order <>

/u to acccc odate the settle: nt negotiations of the parties. 1, Cnce again, the Court acceded to the prayer of the city and '

J continued the sr5eduled trial date of March 15, 1978. The 0 4

- . f i

repeated delays and requests for continuances ultimately placed '1 '

in doubt the portended success of these settlement negotiations, 4 and when those negotiations terminated in failure, the Court 1 l

scheduled the disqualification hearing for Jcne 14, 1976 with t

the trial to folicw i==adiatsiy thereaf ter. That hearing ,

pr:ceeded en schedule and ultimately resulted in the Court's August 3, 1376 Order denying plaintiff's Motion to Disqualify.

Plaintiff's interlocutcry appeal of that Crder necessitated a stay of further proceedings pending a resolution of the appeal

)

by the Court of Appeals for the Sixth Circuit. The Crder of <

August 3,1976 was subsequently affirmed by the Court of Appsals i

i en Ce:arber 12, 1977.

I With the disqualificatica catter resolved by the Court of Appeals, the case is once again in a posture to be tried, albeit scre than 2 1/2 years after the City elected to initiate these preceedings. A trial date of March 13, 1978 has heen scheduled pending the issuance of the candate of the Court of Appeals on the disqualification appeal. The City, however, wculd further delay these proceedings in its andeavor to cbtain another continuance of the scheduled trial date to a future indefinite date, ostensibly to acc0=nedate final i

i disp:sition of proceedings before the.touclear Regulatory  ;

l C0= ission (NRC) ("uccessor to the Atcmic Energy Cc==ission) initiated by the petitions of the Toledo Edisen Cc=pany and i

The Cleveland Electric Illuminating Cc=pany for licenses to l

1 l

~ ' .

.1

i t

4 J

operate the Ctvis-Besse and Perry Nuclear Fewer Stations.

Chose p cceedings before the NRC, which have continued for the ,

past eight years and admit of no imminent conclusion, shall not ,

i serve to further delay the trial of this action. I t 1 e

In support of the preposed continuance, plaintiff i

(

asserts the doctrine of primary jurisdiction and further  :;

s 4 offers the finsi decision of the NRC, whenever it asy issue, as j conclusive of the issues joined herein. The requested cen- }

}

i tinuance would be warranted only if this Court were to find the 9 a

final decisica of the MRC relevant to the preceedings before '

• I this Court by applying the doctrine of collateral est ppel.

j Rcwever, as previcusly stated in its Crder of February 15, 1973, the Court =ay not invoke ' he doctrine of collateral i

esteppel with respect wo the rulings of either the Federal l

Power Cc==issica (FPC) cr the NRC.

As the Court has concluded, the conflicting and l

l inconsistent decisions of the FPC and the NRC shall not provide I

I the rule of order by which thsse proceefings shall be conducted.1 1

Cn July 12, 1972, the presiding examiner for the FPC entered his decision en the petition of the City of Cleveland :or a permanent inter:0nnection with CII. That decision was later j j ad pted by the FPC on January 11, 1973. At page 15 of the j initial decision, the administrative law judge cencluded:

Finally, the City's allegations that its di.fficulties in maintaining service to its c stemers are due in whole or in part to CEI's

.tticompetitive practices are not supported by the record in this censolidated proceeding.

This record indicates that the City's past inability to furnish reliable, dependable ser-vice on the "ILP system to its cwn customers has been due primarily to inccmpetent managanent and inefficient operations . . . f i A contrary conclusion was reached by the Atcmic Safety and Licensing 30ard of the NRC in its initisi decision of January 6, 1977 upon review of petitions fcr licenses to cperate the Davis-Sesse and Perry %uclear Pcwer Stations. The confusion raised by the elemental ecnflict of the decisions of the FPC and the NRC is more surprising in light of the NRC's failure to bind itself to the earlier determinaticas of the FPC under the doctrine of collateral estoppel. Plaintiff wculd, nevertheless, have th s Court follow in the footsteps of the NRC.

s e

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L rarther=cre, the NRC has not c::: ended itself convincingly in

.  ; i croceedings ancillary to its review of the licensing petitiens ,

t

(

of CEI and the Coledo Edison C:=pany, (viz. in disqualificatica  ?

' 1 proceedings before the Atomic E..ergy Licensing Scard, which I

were scre remarkable for the =anner in which they evolved than 5 2 t >

for the ulti=ste conclusion reached therein) .2 Notwithstanding 4

)

l l N,

i l 1 .4 i,

Reviewing the opposing conclusicns of the FPC and the I,lfNs

!NRC, this Court stated, at page 5 of its Order of February 15, i 1973:

i f

j >

~

l The resolutica of the issues presented to f

the FPC and the NRC has resulted in a spate of

l indecisive rulings and conflicting cpinions.  ?

i This Court cannot defer a ful) and fair presenta- J tion of the evidence to the discordant and incen- "

l sistant findings Of ths ??C and the N3C. Co q

j invoke the doctrine of collateral estoppel by <

l adopting the conflicting administrative decisions ;1 and the antithetical findtngs of fact of the FPC i j

and SRC would blanket these proceedings with an ' l l Engenetrable stygian f:q of confusion and doubt. -

l This Court shall not hecc=e a party to this !i I'

administrative chaos. ,  :

li 4]That respectdetermination to the instant also reflects the Court's position with Motion and is tnerefere ad:pted herein. -

N a2

j

n the proceedings befcre the Ate ic Energy Licensing 3 card of s the NRC, the City of Cleveland filed a motion en November 20, I jc!1975 seeking the disqualificatica of the law firm of Squire, ISanders & Dempsey (5550), counsel for CEI. After an eviden-ftiaryhearing, the 3 card granted the motion en January 20, 1976 i:and disqualified SS&D frcm further representation of CEI in

i procaedings before the NRC. Fursuant to the rules and regula-4tions et *

.e C:==ission, the matter was thereafter referred to ia Special Board for review of thi disqualification proceedings.

f!he Special Soard issued its cpinion on February 24, 1976 therein concluding that SS&D should not be disqualified. The lLicensingEcardsubsequentlydetorniEe?that the opinion of the

.S;*cial 2 card was advisory only, and, choosing not to folicw tha' opinion, the Licensing Board again disqualified SS&D. I Undaunted by this double reverse, SS&D pressed an jappeal to the At:mic Safety and Licensing App 2al Soard. In its j>decisionofJune11, 1376, the Appeal scard con '.uded that the I l

' Licensin; Scard had proceeded improperly in con acting disqualifi- i<

! cation prc:eedings in the first instance and reranded the I l matter t' the Special Scard for a formal evidentiary hearing. p

) Shortly:nereafter,onAugust 3, 1976, while the administrative eq

'icarcusel whirled merrily along, this Court, in disqualification i hprocaedings simultaneously conducted in the within action, Uentered its Crder denying the City's Motter *o Disqualify SS&D.

Decelerating to keep :ime with the music, the Special Scard of the NRC' granted, on Ncventer 5, 1976, the motion of CEI to i

I

i i .1 !

4 .

i this history of administrative discerd and infecision, plaintiff urges the Court to defer to the determinations of the NRC in .

these matters. -

The NRC, and its sch ,idiary boards, are neither r l

+ interpretors nor guardians of the antitrust laws of this nation. 0 ,>

~8 Although the NRC =ay have developed a partictlar expertise in y

=atters involving the nuclear generation of electrical power,  ; '$T this nar cw field of experience does not extend to that adminis- . - ,

trative agency any unique insight into the intricate legal 1

l

' interpretations and applications of the Sherman and Clayton Acts 1 3 '

cr bespeak an expertise in antitrust law. Section 2135(c) of l i. ,'

J dismiss the disqualificatica prece' dings in confo.-mity with the '

Court's Crder of August 3, 1975. The City, however, still out '

of tempo, appealed the decision of the Special scard to the "

Appeal Scard. On March 1, 1977 the Appeal 20ard stopped the

! usic altcgether by af firming the decision of the Special 30ard,

! with the caveat that the chase could begin anew if the Court of

Appeals for the Sixth Circuit reversed this Court's Order of l nugust 3, 1376.

The Court of Appeals affirmed the August 3,  ;

j 1976 Crder in its opinion dated Cecomber 12, 1977, and reaf- 1

firmed that position en January 24, 1978.

t The matter is new, of course, a cicsed chapt <. in the j

NRC proceedings. In retrospect, he .

eve r , this cir:uitous and ,

debilitating administrative i=breglio rese bles rs a confusing l

=isadventure than it dces an orderly and ef ficient system of l

administrative justice imbued with sagacity and experience.

The IRC disqualification proceedings feronstrated not only a

isunderstanding of the substantive legal principles of conflict 3=f o interest, but further manifested a fundamental misinterpreta-tion of the procedural rules and regulations by which adminis-trative proceedings are to be conducted.

3 The NRC's " Congressionally candated antitrust review", advanced l in plaintiff's r.: tion, is authorized by the recent arend ents to

! the Atc=ic Energy Act, 42 U.S.C.

S2135(c) (a ended Decerber 19, j 1970), pub. L. ::o .91-560, 24 Stat. 1473, which directs the

- Commissien to "make a finding as to whether the activities under I

the license would create or maintain a situation incensistent with the antitrust laws as specified in subsection (2) o f thi s

Section. " 42 U.S.C. 5 213 5 (c) (5 ) . This finding, which is the

sole manifestation of the ';RC's authority to review alleged l

l antico=petitive activities of prospective licencees, is dependent l

in large part upon the advice of thq Attorney Ge.neral regarding the existence of any advarse antitrust aspects of a proposed ,

j license. 42 U.S.C. 5 213 5 (c) ( 5) . It may also be observed that f -

l the wording of this particular statutory prevision is deliberately ambiguous, (e.g.

• adverse antitrust aspects", "a situation ,  ;

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Citle 42, United States Code, does not cloak the NRC with i

the =antle of judicial wisdcm and experience, and statutory -

authority, through which the United States district and

appellate , courts have shaped and guided this nation's antitrust [

l law for nearly a century. In a:cordance with the foregoing !l 3

i.

conclusions, the Court reiterates its rejection of the

\

t

.<>s!

l' doctrine of collateral estoppel and adopts herein its pronounce- =q 4

=ents of law announced in the Crder of February 15, 1978. I i

. 4 In passing, the Court pauses to observe that [4 I recent public statements present the appearance of a calculated '

effort on behalf of the City to delay these proceedings, for ,

i purposes kncwn only to itself. Early on in these proceedings,

+

I the Court ai=0nished the parties to refrain fr:m ,coliticizing ,

l the Court's jurisdiction by projecting this tribunal as a jforumforpolitic;1debateortomanipulateoratte=ptto i

t canipulate the Court's administration for partisan political j purposes. Accordingly, through oversight or otherwise, the  ;

jCourt's ai=0nicien shculd not go unheeded and the ,arties

{ should be ever mindful of the prasent posture of this case I

I as pending before a United States District Court and =eticulcasly t'

avoid conduct which may be even remotely construed as incen-l sistent with 13 U.S.C. 55401 and 402.

j Accordingly, the Motion to Stay Trial is hereby denied I

and the trial of this action shall proceed as scheduled unless l

! and until any action by the Supreme Court of the United States, li er the Court of Appeals foe the Sixth Circuit, en plaintiff's l

l' 1

inccasistent with the antitrust laws"), and affords the NRC no I

authority to determine the existence of any direct violations of

! the Sherman and Clayton Acts. Chat determination rests within j the statutory jurisdiction of the "nited States District Court.

l 15 U.S.C. 554 and 15.

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, proposed petition for certiorari on the disp:alifiestion issue .

!warrantsafurtherextensionofthetrial.

IT IS SO OC ERED. '

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I This c.attor is new before the C:urt on th2 ::o tion I

in Linine of Triodo E; sen 01 pany (Toledo Edisen) and the l

. oint "otion in Linina of Chio Eli20n C .pany and Pennsyl-

}/aniaPc..erC:-.any (collecti coly Chio Edison) , ahore'ya said l defendants seek ,orcliminary talings.cn anticipated evidantiary i

q u e s :10 . 3 -hich rj n isa 2 ring trial.

i l It its Mtica, Toledo Edison stitions the C urt ttn foreciese the City frez discicsing to the jury either i

l directly or indirectly:

i (1) T';c ex'.st2nce or pandancy of pr:ccedings b2 fore th .uclear Regulatory C: mission I

s

ich havo :: er/ affect in v. of the .carties

to this actien, and any oninions or conclu-l siens of -' ..cclear 32;u12 tory C rnission j which have or ay herasftar he rendered as

-s rasult of - af:re entioned prcceedings I hofore the '.uc. car Reguistory Cormissien; i snd i

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(2) iny alicted activities of thp Toledo Edison C pany in relation to

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(a) the cities of 39./ ling Green, 3ryan, I l Napoleon and Etaterville; l l (b) wheeling r failure to wheel pcwor l in .;crthwestern Chio; I

(c) power supply sgrSerents in North.estern Chio; 1

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(d) territorisi s;raanents in :;or sh-l e I western Ohio; I

l (e) agreerents with the 3uckeye power . l COnpany; -

l (f) refus11 to engage in joint ownership b.

j of large-scale :eneratin; facilities l l sith electric atility companies in L f .;crthwestern Chio; d h

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i (g) acquisitions of or rergers with other j j electric utility companies in North-

' western Chio; f'

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exc2pt insofar as any of t.e above iters msy ,,

rafer or relate directly to plaintiff City i of Cleveland, ap?lication by any person for ,

arbership or unit trvar 7urchase partici- 1

' pation in CAPCO or c.scussion by any defan- ',

j dsnt in ralation therato, or application - 4 by any persen for cwnarahip in any nuclear  !

j f acility or portion thereof or discusgjon by any dafandant in elacion thereto.- ,

h Chio Elison seeks s si:ilar prchibitic.' 'Jainst the City to avoid alluding to:

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(1) any aspect of any relationship between i any . . . defendant (other than CEI] and I any municipal elactric utility, rural I elactric cooparative, or association of j unicipal utilities or rural electric c: perativas lect:ed in the ge: graphical ares served by said . . defendant; and (2) any allege: territorial xjrc rant betveen any defendant and another in; aster-cwned i

utility. (footnote cnitted)i/

i This is not the first occasion the issue 3 joined i

by the present "Oticns have be2n before the Court. ilth Irespect to teclear Regulatory Ccnmission (

::RC) proceedings I

in which certain of the present partias appeared, in an Crder dated Ecbruary l'7, 1973 the Ccurt denied the City's

Motion to stay the trial of this action pending the final i

dispcsition of the proccadings before tha "?.C.3/ In doing so, I

ithe Court stated:

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l/ Motion in Linine of Toledo Edison.

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l 2/ Motion in Linine of Ohio Edison.

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!1[ The City's appeal frc= the denial of that "otion was dis-j missed, as a non-final order, by the Sixth Circuit Court of n Appeals. City of Cleveland " Clev? land Electric Illumina-jl ting Co., So. 73-3223 (6th Cir. aug. 4, 1978).

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1 The NRC, and its subsidiary beards, , l are neither interpreters nor guardians of , [

the antitrust laws of this nation. Although the NRC may have developed a particular  ;

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expertise in r.atters involving the nuclear j <

l generatica of electrical power, this narrow i field of experience does not extend to that i administrative agency any unique insight (

into the intricate legal interpretations and j }

applications of the Sherman and Clayton Acts t or bespeak an expertise in antitrust law.

Section 2135(c) of Title 42, United States 1

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• C:de, does not cloak the :;RC with the mantle 4 I of judicial wisdom and experience, and statu- i k

l tory authority, through which the United States ,,,

l district and appellate courts have shaped and g I guided this nations antitrust law for nearly ,

i l a century. 'Mr e r a n d um and Crder, Fchruary 17, 3 j

1973, at 4-5 (footnote cmitted).  ;

A f For substantially similar reasons, the Court rejected CSI's

,atta.pt to c: nit the Court to a ruling of the radaral P: war '

N hCcmmission (FPC). Sie '-Mmerandun and Crder, February 15, l 1973. The Court of Appeals for the District of Columbia has i

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1 l =cnsistently held that regulatory agencies have neither a _

I duty to administer the antitrust laws nor jurisdiction to 1

determine violatiens thereof. Sig Alabama Pcwer Co. v. Faderal I

fPcwer C ris.sien, 511 F.2d 333, 393 (D.C. Cir. 1974); Cities of i

Statesville v. Atomic Ener

y Co nission, 441 F.2d 962, 986-ll6 37 (D.C. Cir. 1969) (Leventhal, J., concurring); Northern h'*stural Gas Co. v. Federal Pc,rer C missien, 399 F.2d 953, i

960 (D.C. Cir. 1963). Thus, in "orthern Natural Gas Co. v.

. Federal Power Cermission, id. at 960-61, the court, after I-I review of the relationship between antitrust law and the duties ,

of federal regulatory agencies, concluded:

This is not 'o suggest, hcwcVer, that i

regulatory agencies have jurisdiction to determine violations of the antitrust laws. I Eee People of State of California v. F.P.C.,

! supra, 369 U.S. at 490, 32 S.Ct. 901; United States v. Fadio CorporatioA of America, supra, 358 U.S. at 350 n. 13, 79 S.Ct. 457; ,

National Broadcasting Co. v. United States, 319 U.S. 190, 223-224, 73 S.Ct. 999 (1943); ,3 Mansfield Journal Co. v. F.C.C., 66 U.S. App. d 9

D.C. 102, 107, 133 F.2d 23, 33 (1950), t;or are the agencies strictly bound by the dictates of those laws, for they can and do approve actions which violate antitrust policies where  ;

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ether econo.nic, social and political con-siderations are f:end to be of cverriding importance. In short, the antitrust laws are merc ly another tool which a regulatory -

agency erpicys to a greater or lesser degree to give " understandable content to the broad ,

statutory concept of the 'public interest.'" s F.M.C. v. Aktiebolaget Svenska Amerika Linien, .

.;~

supra, 330 U.S. at 244, 83 S.Ct. at 1009.  !

(f oc:ncte emitted)  :

a Contrary to the arguments of the City, the statutory .

j i e authority and responsibility of the NRC is related solely to r

prelicensing anticompetitive review and is severely proscribed h

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, to considerations of efformation and perpetuation of reasonably i 4 l probable anticompetitive practico foresacably arising from l 1 future activities under the license. See 42 U.S.C. 52135(c) 4

' ( 5 ) . ~/ The NRC is permitted to undertake this finite prospac- i 3

lY tive revi2w under what the Saprcme C:urt has c nsistantly l 1 i

referred to as the "cublic interest standard" of federal regu-l' latory commissions. See, for exarole, otter Tail Power Co. v. ]

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- i p United Statas, 410 U.S. 366, 373 (1973); California v. Federal  :

0  ! d 1hPcuer Commission, 369 U.S. 432, 434 (1362); United States v. j '

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Radio Corporation of 'rerica, 353 U.S. 334, 351 (1959). The i

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The comments of the Joint Committee on Atcmic Energy cn l the 1970 amendment of 42 U.S.C. 52135 are instructive in this regard.

The concept of certainty of contravention of

, the antitrust laws or policies clearly under-

' lying these laws is not intended to be implicit in this standard . . . . It is intended that, in effect, the C:mmission will conclude whether, in its judgment, it is reasonably prcbable that the activities under the license would, when the license is issued or thereafter, be incon-sistent with any of the antitrust laws or the policies clearly undcrlying these laws.

With respect to the above finding, although the words " reasonable probability" do not appear in the standard, the concept of resscnable pro-hability is intended to be a silent partner to i d

the factors in the standard. The standard must be considered in the focus of reasonable proba-bility - not certainty or possibility.

l H. R. F.ep. No. 91-1470, 91st Cong., 2d Sess., reorinted in I

1970 U. 5. Code Cong, & Ad. News 4981, 4994, 5011.

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';RC's refinement of the public interest standard is set .

forth in 42 U.S.C. 5213 5 (c) ( 6 ) and eads:

i In the event the Commission's finding  ! :1 under paragraph (3) is in the affirmative, /

the Cc mission shall 41so consider, in deter-mining whether the license should be issued { *e or continued, such other factors, including  : ,

the need for power in the affected area, as 4 the Ccmmission in its judgment deems neces- i sary to protect the public interest. j Addressing the effect of a regulatory agency de.armination 1 i

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l r under a substantially similar public interest statute, the (

Supreme Court held that approval by the Federal Communications l

Commission (FCC) of an exchange of radio stations would have j no esteppel effect on a subsequent antitrust action because el 1

t l "the issua in controversy before the (FCC] was whether the i

I exchange would se.rve the public interest,,not whether 51 of l the Sherman Act had been violated." United States v. Radio i

Corcoration of America, supra, 358 U.S. at 468.

I Accordingly, for the foregoing reasons, during the 1

course of trial, no party shall, in the presence of the I

jury, allude to, refer to, or attempt to convey, either fdirectlyorindirectly, in any . manner the findings, conclu-  !

I sions, deterr.inations, or substance of any NRC or FPC admi- i i

nistrative determination as such determination reflects upon q!

the defendsnts' acts alleged herein to be in violation of I Sections 1 or 2 of the Sherman Act. The Court is mindful, hcwever, that occasions may arise during trial when a party l l deems it necessary to discuss, or to elicit testimony con-cerning, proceedings before the NRC or the FPC. In those t

instances, counsel shall request a determination by the l i

i Court as to the propriety and necessfty thereof, which' request shall be made outside the hearing of the jury.5/

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Chis Court's Order of February 6, 1978, which held that depcsitions taken in the NRC p oceeding may be used in the

' same manner and to the same extent as if thev had been taken in this action, presents no insurmountable 7.;blems. If coun-sel for the City finds it necessary to refer to the NRC pro-ceeding in laying a proper foundation for the use of such a n

h, deposition, a side bar conference will be appropriate.

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a The Court defers ruling upon the cbjections presented by Chio Edison's ::otion in Limine and the second branch of .

Toledo. Edison's !!ction in Limine, both of which are directed to a conron issue, i.e., exclusion of evidence concerning l'

alleged territorial agreements with other investor cwned  ;

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! utilities and/or evidence of existing practices between the  :  ;

i respective companies and municipally owned utilities and . ,

1 electrical cooperativos within their respective service ,3 v

areas to a point during trial when such objections may be con- (

sidered within the context of all of the evidence developed to that juncture of the proceeding.

Toledo Edison's Motion in Limine is hereby granted [

, in part and denied in part as praraturo, and Chio Edison's l

"otion in Limine is hereby denied as premature.

IT IS 30 CRDERED.

[9 #[

"Jnited States Discrict Jci>q '

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