ML19326A673

City of Cleveland Motion for ASLB Order Enforcing Disqualification Order.Certificate of Svc Encl

ML19326A673
Person / Time
Site:	Davis Besse, Perry
Issue date:	03/01/1976
From:	Goldberg R CLEVELAND, OH, GOLDBERG, FIELDMAN & HJELMFELT
To:	Atomic Safety and Licensing Board Panel
References
NUDOCS 8002260893
Download: ML19326A673 (8)

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W UNITED STATES OF AMERICA g 1 NUCLEAR RECULATORY COMMISSION  ; Mg 3 g {

Before the Atomic Safety and Licensine Board D T ** g o, ha p In the Matter of ) .

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) p The Toledo Edison Company and )' Docket Nos. 50-346A The Cleveland Electric Illuminating ) 50-500A Company ) 50-501A (Davis-Besse Nuclear Power Station )

Units 1, 2 and 3) )

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The Cleveland Electric Illuminating ) Docket Nos. 50-440A Company, et al. ) 50-441A (Perry Nuclear Power Plant )

U. nits 1 and 2) )

MOTION OF CITY OF CLEVELAND FOR

. AN ORDER OF THE BOARD ENFORCING

. ITS O,RDER OF DISQUA LIFICATION By Motion of November 20,* 1975, 'the City of Cleveland (City) moved t'.is Board to disqualify the law firm of Squire, Sanders & Dempsey (SS&D) u.8 its Wsshington office, Cox, Langford & Brown, from appearing and/or a :cing a= counsel for CEI or any other Applicant in these preceedings. By its order of January 20, 1976, this Board, acting under Section 2. 713 of the Commissioi rules, granted the City's motion to suspend but stayed the e.f activeness of its order until a report had been received from another b ird. On February 25, 1976, the Special Licensing Br.'.rd (Special Board) ,

impaneled to grant SS&D the hearing required-by Section 2.713 issued its i

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i report. City now moves this Board to make effective tl.a suspension of SS&D ordered by it on January 20, 1976, or in the alternative to certify the issue to the Atomic Safety and Licensing Board. ,

Although both this Board and the Special Licensing Board recognized that Section 2.713 of the Commission's rules was never intended to apply -

to a situation like this one, both Boards felt bound to follow the procedures se t forth in Section 2. 713.

i Section 2. 713(c) provides: -

A presiding officer may, by order, suspend or'bar any person from participation as an attorney in a proceeding if the presiding officer finds that such person:

(2) Has failed to conform to the standards of conduct required in the courts of the United States.

By order of January 20, 1976, this Board found that SS&D had failed te r onform to the standards of conduct required in the courts of the United Sta'as and accordingly suspended SS&D.

Section 2. 713(c) further provides that: ,

Before any person is suspended or barred from participation as an attorney in a proceeding, charges shall be preferr ed by the presiding officer against such person and he shall be afforded an opportunity to be heard thereon before another presiding officer.

SS&D accordingly was granted an opportunity to be heard before the

• Special Board prior to the Board's order of suspension' taking effect.

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3 That hearing having been completed, the time is ripe for the Board's order

'to become effective.

It is important to note that Section 2.713 does not empower the presiding officer to whom the matter is referred to make'any ruling with regard to order of suspension. His sole purpose is to provide the attorney,. in this case SSkD, with an opportunity to be. heard prior to the suspension or disbarment being made effective. Only the original presiding officer, this Board, is empowered to suspend. This Board has ordered suspension.

The hearing required by Section 2. 713 has been held. Accordingly, this Board may now make its order effective or reconsider its order of suspen-sion.

Although the Special Board purported to enter an order dismissing the charges and vacating this Board's order of suspension, the Special Board is clearly without power to do so. The Special Board's ruling is no rrere than an advisory report on the hearing held before it.

There is nothing in the Special Board's advisory report which

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veoald givs reason to further stay this Board's order suspending counsel.

Both the Special Board's opinion and the concurring opinion find a lack of jr r'sdiction in the NRC to suspend SS&D on the facts of this case. To reach tha: conclusion the Special Board members ignored the. clear ruling of the Appeal Board that the ABA Code of Professional Resconsibility is applicable to , roceedings before the Commission, Northern Indiana Publ:c Service Company, A LAB -204, RAI-74-5,' page 835. Moreover, the Appeal Board

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has ruled that attornsys practicing before the Commission "are under an express mandate to conform to the standards of conduct required in courts of the United States," Louisiana Power & Light Company, A LAB-121,

' RAI-73-5, page 319.

The- concurring opinion demonstrates a complete lack of under-standing of the issues involved in the antitrust case when it states (Slip. op.

10) that "Neither of the two fact situations relied on by the First Board majority is even 'substantially related' to the antitrust proceeding presently before the Licensing Board. " An opinion based upon such a fundamental lack of understanding of.the matters at issue is certainly entitled to no weight.

The Special Board's opinion, in footnote 10, appears to grant some recognition to the relationship of the " fact situations" to'the antitrust pro-c'e edings but centends that before SS&D can be disqualified "the Board should have required hard evidence of injury-in-fact or at least evidence of si ecific ' confidences' that were breached. " For the Special Board to r pire hard evidence after it first denied the City the right to subpoena 1

di ces tecum to obtain documents from SS&D (including files claimed to l n ve been reviewed by Lansdal'e in preparing his affidavit) in order to cor..uct effective cross-examination and then to preclude the parties from .

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ofi ring any "hard evidence" at all is absolutely astounding. It is a com-l .pl.r e denial of procedural due process.

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The Special Board failed to develop any new factual material and instead merely heard oral argument and read briefs submitted by the parties. Therefore, the Special Board's advisory report offers no basis for continuing the stay of this Board's order of suspension.

WHEREFORE, City prays that this Board issue an order making its order suspending ' Squire, Sanders & Deinpsey effective.

Respe'etfully submitted,

/ bW $/h Reuben ~Goldbe rg

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David C. Hjelmfelt Goldberg, Fieldman & Hjelmfelt 1700 Pennsylvania Avenue, N. W.

Washington, D. C. 20006 Telephone (202) 659-2333 -

James B. Davis Director of Law Robert D. Hart First Assistant Director of Law City of Cleveland 213 City Hall Cleveland, Ohio 44114 Telephone (216) 694-2737

- Attorneys for City of Cleveland, Ohio M a rch 1, 1976 s

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CERTIFICATE OF SE'RVICE I hereby certify that servic'e of the foregoing Motion of City of

' Cleveland for an Order of the Board Enforcing its Ordei of Disqualification has been made on the following parties listed on the attachment hereto this let day of March,1976, by depositing copies thereof in the United States mail, first class postage prepaid, or by hand' delivery.

Reuben Goldberg Attorney for City of Cleveland, Ohio Attachment ~

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Douglas V. Rigler, Esq. , Chairman Ivan W. Smith, Esq.

Atomic Safety and Licensing Board John M. Frysiak, Esq.

Foley, Lardner, Hollabaugh and Jacobs Atomic Shfety and Licensing Board 315 Connecticut Avenue, N. W. U.S. Nuclear Regulatory Commission l Washington, D. C. 20006 Washington, D. C. 20555 Alan S. 3.osenthal, Chairman ~ Richard S. Salzman, Chairman Atomic Safety and Licensing Appeals Board Atomic Safety and Licensing Appeals Board U. S. Nuclear Regulatory Commission U.S. Nuclear Regulatory Commission ,

Washington, D. C. 20555 Washington, D. C. 20555 Dr. John H. Buck Michael C. Farrar Dr. Lawrence K. Quarles Dr. W. Reed Johnson Atomic Safety and Licensing Appeals Board Atomic Safety and Licensing Appeals Board U.S. Nuclear Regulatory Commission U.S. Nuclear Regulatory Commission Washington, D. C. 20555 Washington, D. C. 20555 l Howard K. Shapar, Esq. -

Executive Legal Director Jack R. Goldberg, Esq.

U.S. Nuclear Regulatory Commission ' Office of the Executive Legal Director Washington, D. C. 20555 U. S. Nuclear Regulatory Commission

. Washington, D. C. 20555

.\.~ r. Fra sk W. Karas, Chief Emb2ic Proceedings Branch Benjamin H. Vogler, Esq.

Ol'ca of the Secretary Joseph Rutberg, Esq.

l U E.' Nuclear Regulatory Commission Robert' J. Verdis co, Esq.

V.'n shington,. D. C. 20555 Roy P. Les sy, Jr. , Esq.

Office of the General Counsel A3raham Braitman, Esq. Regulation C Cee c,f Antitrust and Indemnity U. Si Nuclear Regulatory Commission U.S. No 21 ear Regulatory Commission Washington, D., C. 20555 V shiz. ; ton, D. C. 20555 l Melvin G. Berger, Esq.

l F-ank R. Clokey, Esq. Joseph J. Saunders, Esq.

5p .ial Assistant Attorney General Steven M. Charno, Esq.

Towne 7ouse Apartments, Room 219 ' David A. Leckie, Esq.

-Iarrisi t rg, Pennsylvania 17105 Janet R. Urban, Esq.

Ruth Greenspan Bell, Esq.

it card . i. Matto, Esq. Antitrust Division Assistant Attorney General Department of Justice Chief, Antitrust Section Post Office Box 7513 30 East troad Street, 15th floor Washington, D C. 20044 ,

. ambu s, Ohio 43215 Karen H. Adkins, Esg.

Christopher R. Schraff, Esq. Richard M. Firestone, Esq.

4cristant Attorney General Assistant Attorneys General Cnviro mental Law Section

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Antitrust Section 361 Ea : Brca(Street, 8th floor 30 East Broad Street, 15th floor -

-1. .nl 2 s, Ohio 43215 Coltim. bus, Ohio 43215

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ATTACHMNT (Cominuca)

Russell J. Spetrino, Esq. Leslie Henry, Esq.

Thomas A. Kayuha, Esq. -

Michael M. Briley, Esq.

Ohio Edison Company Roger P. Klee, Esq.

47 North Main Street

• Fuller, Henry, Hodge & Snyder Akron, Ohio 44308 Post Office Box 2088 Toledo, Ohio 43604 John Lansdale, Jr. , Esq.

Cox, Langford & Brown James R. Edgerly, Esq.

21 Dupont Circle, N. W. Secretary and General Councel Washington, D. C. 20036 ,

Pennsylvania Power Company One East Washington Street

. Richard A. Miller, Esq. New' Castle, Pennsylvania 16103 Vice President and General Counsel The Cleveland Electric Illuminating Co.

• Donald H. Hauser, Esq.

Post Office Box 5000 Victor A. Greenslade, Jr., Esq.

Cleveland, Ohio 44101 The Cleveland Electric Illuminating Co.

Post' Office Box 5000 Oerald Charnoff, Esq. Cleveland, Ohio 44101 ,

Wm. Bradford Reynolds, Esq.

Shaw, Pittman, Potts & Tr'owbridge Thomas J. Munsch, Jr. , Esq.

1800 M Street, N. W. General Attorney Washington, D. C. 20036 Duquesne Light Company

. 435 Sixth Avenue David.McNeill Olds, Esq. Pittsburgh, Pennsylvania 15219

.. tiliam S. Lerach, Esq.

L.eed, f mith, Shaw & McClay Joseph A. Rieser, Esq.

'odt Office Box 2009 Reed, Smith, Shaw & Mc Clay Mttsburgh, Pennsylvania 15230 1155 Fiftee, nth Street, N. W.

Washington, D. C. 20005

'Jerre ice H. Benbow, Esq.

Winth c p, Stimson, Putnam & Roberts John C. Engle, President

. Wa.1 Street AMP-O, Inc. .

• w York, New York 10005 20 High Street Hamilton, Ohio 45012 "

.an T. Brown, Esq. ,

bncr i Brown, Weinberg & Palmer Atomic Safety and Licensing Board Panel h0 I . msylvania Avenue, N. W. U. S.. Nuclear Regulatory Commission Vashin , ton, D C. 20006 Washington, D. C. 20555

ocke ing and Service Section Atomic Safety and Licensing Appeal Office c f the Secretary Board Panel L . S.

hclear Regulatory Commission U. S., Nuclear R.egulatory Commission ,

., ashin ; ton, D. C. 20555 Washington, D. C. 20555 Alan P Buchmann, Esq. Elizabeth S. Bowers, E sq. Chairman Squir , Sanders & Dempsey Edward Luton, E sq. , Member 1800 'nion Commerce Building Thomas W. Reilly, E sq. , Member Cle se a nd, Ohio 44115 Ato'mic Safety and Licensing Board Panel U.S. Nuclear Regulatory Commission

Page 3 ATTACHMr.:NT (continued)'

Michae 1 R. Gallagher, Esq..

630 Bulkley Building ~

1501 Euclid Cleveland, Ohio 44115 9

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