ML19326A727

Supports Squire,Sanders & Dempsey Dismissal Motion. Certificate of Svc Encl

ML19326A727
Person / Time
Site:	Davis Besse, Perry
Issue date:	09/24/1976
From:	Reynolds W CLEVELAND ELECTRIC ILLUMINATING CO., SHAW, PITTMAN, POTTS & TROWBRIDGE, TOLEDO EDISON CO.
To:	Atomic Safety and Licensing Board Panel
References
NUDOCS 8002270895
Download: ML19326A727 (11)

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Septcmber 24, 1976 l

UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION Before the Special Atomic Safety and Licensing Board on Disqualification In the Matter of )

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THE TOLEDO EDISON COMPANY and )

THE CLEVELAND ELECTRIC ILLUMINATING ) Docket No. Q -346 Q COMPANY ) -

(Davis-Besse Nuclear Power Station, )

Unit 1) )

)

THE CLEVELAND ELECTRIC ILLUMINATING )

COMPANY, ET AL. ) Docket Nos. 50-440A (Perry Nuclear Power Plant, ) 50-441A Units 1 and 2) )

)

THE TOLEDO EDISON COMPANY, ET AL. )

(Davis-Besse Nuclear Power Station, ) Docket Nos. 50-500A Units 2 and 3) ) 50-501A APPLICANTS' VIEWS ON DISMISSAL MOTION OF SQUIRE, SANDERS & DEMPSEY

l. In a telephone conference call on September 1, 1976, the Special Board Chairman granted Applicants' request for an extension of time until September 24, 1976, to respond to the' dismissal motion of Squire, Sanders & Dempsey ("SS&D")

(see " Minutes Of Conference Call Held September 1, 1976", p. 4).

! We have since then had an opportunity to review in some detail l

l the position of SS&D based upon collateral estoppel, to read j Judge Krupansky's careful opinion in the United States District i

Court, and to evaluate the actual (City of Cleveland) and pos-sible (NRC Staff) arguments that might be raised in opposition 8D02 270 Qg

2-to the motion. It is Applicants' view that the Special Board can reach but one conclusior, i.e., to grant SS&D's motion.

2. We are not inclined to rehash the argument that has already been effectively presented to the Special Board in SS&D's moving papers. Such an exercise would not assist the Board in any real sense and seems to us to be con-trary to Applicants' agreed role in this inquiry. It is so clear as to require no extended discussion that the real par-ties in interest before this Special Board on the disqualifi-cation matter are SS&D and the City of Cleveland. These are the identical parties who joined issue over the identical question in the United States District Court for the Northern District of Ohio. If the doctrine of collateral estoppel has any meaning whatsoever -- and we would observe in passing that, in the present climate of increasing case-loads and overcrowded dockets at both the judicial and administrative levels, there is more, rather than less, reason to apply the doctrine in appropriate circumstances -- the present situation calls for its application.

3. In arriving at this conclusion, Applicants found particularly instructive the Appeal Board's Decision of June 11, 1976.-1/ In remanding the matter to this Special Board I

1 1/ The Toledo Edison Company and The Cleveland Electric IllEminating Company (Davis Besse Nuclear Power Station, Units 1, 2& 3), ALAB-332, NRCI-76/6, 785-803 (June 11, 1976).

for an evidentiary hearing, the Appeal Board cautioned that the Commission's responsibility in matters of such sensitivity was to evaluate the claim under "the standards of conduct ap-plicable irt the federal courts" -(NRCI-76/6, at 796; emphasis added), and to grant "the same type of relief on a meritorious motion to disqualify an attorney that the federal courts are accustomed to grant * * *" (NRCI-76/6, at 795-96; emphasis added). The Special Board need not speculate in the present instance about how the federal courts would treat the disqual-ification claim of the City of Cleveland. Judge Krupansky has elogantly provided the answer. Certainly in the Appeal Board's view, there can be no legitimate escape from the collateral estoppel effect of that federal court decision because the same pcrties are now making the same arguments in an adminis-trative proceeding.

4. Moreover, the Appeal Board placed heavy emphasis on the need for the City of Cleveland to show a " substantial relationship" between the . issues in the current proceeding and those involved in the former representation (NRCI-76/6, at 799, 802). Judge Krupansky was equally cognizant of that stan-dard. Following a full evidentiary hearing he found as a fact as follows: "It is conceded that apart from the services performed by its bond department, SS&D's ad hoc legal repre-sentations of the City had no substantial relationship to the

case at hand * * *" (Slip op., p. 8; emphasis added). As to the activities of the firm's bond department, moreover, the finding was:

The Court concludes that there exists no substantial relation-ship between the pending anti-trust action and SS&D's services to the City on an ad hoc basis as special bond counsel attesting to the veracity of proposed bond offerings. [ Slip op., p. 31; emphasis added.]

The Court necessarily concludes that the City has failed to meet its burden of proving a substan-tial relationship between the instant relationships. [ Slip op. ,

p. 32.]

These findings are dispositve here. It is no answer that the City should be given an opportunity to relitigate these same issues on new or different evidence. The fundamental purpose underlying the doctrine of collateral estoppel is to preclude such a "second bite at the apple." Moreover, such a course would'be particularly inappropriate here.

For, the antitrust licensing board in this proceeding ex-pressly excluded from the matters in controversy those al-legations by the City relating to SS&D's services as bond counsel (see Perry Antitrust Tr. 7499). As to all other matters, the City " conceded" there was no substantial re-

lationship (Slip op. 8). It should not now be allowed to come before this Special Board to litigate the very issue it declined to contest in the federal court. If the doc-trine of collateral estoppel can be so easily sidestepped, it has little meaning.

5. Finally, Applicants would point quickly to the Appeal Board's recognition of SS&D's waiver defense as a legitimate matter for scrutiny on remand (NRCI-76/6, at 802). As it stated, the matter of waiver "snould be de-cided within the framework of existing federal case law on this question" (NRCI-76/6, at 802). Judge Krupansky did just that, and specifically found that the record " leaves no room for doubt that the City did indeed waive any and all objection to SS&D's continued representation of CEI" (Slip op., p. 23). Such a finding pretermits any need for further inquiry by this Special Board; such a result is precisely what the doctrine of collateral estoppel is designed to ac-

.complish. Indeed, even if the district court had not made specific findings on the question of "no substantial rela-tionship," its rulings in the area of waiver and equitable estoppel (see also Slip op., pp. 15-16, 20), are sufficient for purposes of SS&D's present motion.

6. In conclusion, Applicants would make one final observation. The "public interest" element which must be

weighed heavily in any decision by the Commission, argues forcefully for an application of collateral estoppel here.

The matter has already been once litigated and resolved.

As it comes before this Special Board we cannot help but note that the administrative proceeding in which the City urges disqualification of SS&D is now in its concluding stages. There is not the prospect here of future involve-ment by SS&D in a prolonged evidentiary hearing. Nor is there the prospect of participation by SS&D in post-hearing briefing activities. All such matters are now behind us.

There is in these circumstances, when faced with a careful district court decision based on a full evidentiary evalua-tion of the identical claim, no public interest to be served by putting the parties on this Special Board to the burden and expense of a relitigation of the same issues simply for the purpose of obtaining an advisory opinion which can have no practical value or importance at this late stage in the antitrust hearing process. It is no more appropriate for this agency to be rendering advisory rulings of academic in-terest only than it is for the courts. Certainly, to divert the time and efforts of the members of this Special Board away from legitimate and live controversies for purposes of engaging in such a carbon-copy hearing serves no legitimate public in'terest.

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7. Accordingly, Applicants join in and fully support SS&D's motion to dismiss the disqualification pro-caeding on the basis of collateral estoppel.

Respectfully submitted, SHAW, PITTMAN, POTTS & TROWBRIDGE f

By: f ... u'> lv [e__ _ i Wm. Bradford Reynolds (

Counsel for Applicants Dated: September 24, 1976.

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UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION Before the Special Atomic Safety and Licensing Board On Disqualification In the Matter of )

)

THE TOLEDO EDISON COMPANY and )

THE CLEVELAND ELECTRIC ILLUMINATING ) Docket No. 50-346A COMPANY )

(Davis-Besse Nuclear Power Station, )

Unit 1) )

)

THE CLEVELAND ELECTRIC ILLUMINATING )

COMPANY, ET AL. ) Docket Nos. 50-440A (Perry Nuclear Power Plant, ) 50-441A Units 1 and 2) )

)

THE TOLEDO EDISON COMPANY, ET AL. )

(Davis-Besse Nuclear Power Station, ) Docket Nos. 50-500A Units 2 and 3) ) 50-501A CERTIFICATE OF SERVICE I hereby certify that copies of the foregoing

" Applicants' Views On Dismissal Motion Of Squire, Sanders &

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Dempsey" were served upon each of the persons listed on the attached Service List, by mailing copies, first class post-age prepaid, this 24th day of September, 1976.

SHAW, PITTMAN, POTTS & TROWBRIDGE By- '\

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Wm. Bradford Reynolds l Counsel for Applicants i

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SERVICE LIST 4

Robert M. Lazo, Esq. Howard K. Shapar, Esq.

Chcirman Executive Legal Director Atomic Safety & Licensing Board U. S. Nuclear Regulatory Commission U.S. Nuclear-Regulatory Commission Washington, D. C. 20555 Washington, D. C. 20555 Andrew C. Goodhope, Esq. Mr. Frank W. Karas ,

M mber Maryland National Bank Building Atomic Safety & Licensing Board 7735 Old Georgeton Road 3320 Estelle Terrace Bethesda, Maryland 20014 Whnaton, Maryland 20906 Jerome E. Sharfman, Esq.

D niel M. Head, Esq. Atomic Safety & Licensing Appeals Board

• Manber U. S. Nuclear Regulatory Commission Atomic Safety & Licensing Board Washington, D. C. 20555 U. S. Nuclear Regulatory Commission Washington, D. C. 20555 Richard S. Salzman, Chairman Atomic Safety and Licensing Appeals Board Douglas V. Rigler, Esq. U. S. Nuclear Regulatory Commission

, Chairman Washington, D. C. 20555 Atomic Safety & Licensing Board Panel

, Foley, Lardner, Hollabaugh & Jacobs Dr. W. Reed Johnson 815 Connecticut Avenue, NW Atomic Safety and Licensing Ayala Board Washington, D. C. 20006 U. S. Nuclear Regulatory Commission I Washington, D. C. 20555 Ivan W. Smith, Esq.

Atomic Safety & Licensing Board Panel Benjamin H.-Vogler, Esq.

U. S. Nuclear Regulatory Commission Joseph Rutherg, Esq.

Washington, D. C. 20555 Robert J. Verdisco, Esq.

! Roy P. Lessy, Jr., Esq.

John M. . Frysiak, Esq. Office of the General Counsel Regulation 1

! Atomic Safety & Licensing Board Panel U. S. Nuclear Regulatory Commission l l U. S. Nuclear Regulatory Commission Washington, D. C. 20555 j Washington, D. C. 20555

• Mr. Chase R. Stephens )

Alan S. Rosenthal, Chairman Docketing & Service Section '

l Atomic Safety and Licensing Appaala Boa'.t. l U. S. Nuclear Regulatory Commission l U. S._ Nuclear Regulatory Commission 1717 H Street, NW Washington, D. C. 20555 Washington, D. C. 20006 Dr. John H. Buck

.Dr. Lawrence K. Quarles Atomic Safety and Licensing Appeals Board U. S. Nuclear Regulaotyr Commission Wuhington, D. C.J20555

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Melvin C. Berger, Esq. Victor F. Greenslade, Jr., Esq.

Joseph J. Saunders, Esq.- Principal Staff Counsel Stsven M. Charno, Esq. The Cleveland Electric Illuminating Co.

David A. Leckie, Esq. P. O. Box 5000 Janet R. Urban, Esq. Cleveland, Ohio 44101 Ruth Greenspan Bell, Esq.

Antitrust Division William J. Kerner, Esq.

D2partment of Justice Office of the General Attorney P. O. Box 7513 The Cleveland Electric Illuminating Co.

Wachington, D. C. 20044 P. O. Box 5000 Cleveland, Ohio 44101 RGuben Goldberg, Esq.

David C. Hjelmfelt, Esq. Michael R. Gallagher, Esq.

1700 Pennsylvania Avenue, NW- Gallagher, Sharp, Fulton, Norman & Mallison Suite 550 630 Bulkley Building Washington, D. C. 20006 Cleveland, Ohio 44115 Vincent C. Campanella, Esq. John Lansdale, Esq.

1 Director of Law Cox, Langford & Brown City of Cleveland 21 Dupont Circle, NW 213 City Hall Washington, D. C. 20036 Cleveland, Ohio 44114 Alan P. Buchmann, Esq.

Robert D. Hart, Esq. Squire, Sanders & Dempsey First Assistant Director of Law 1800 Union Commerce Building City of Cleveland Cleveland, Ohio 44115 213 City' Hall Cleveland, Ohio 44114 Michael M. Briley, Esq.

Roger P. Klee, Esq.

James B. Davis, Esq. Fuller, Henry, Hodge & Snyder Spscial Counsel P. O. Box 2088 Hahn, Icesser, Frwwim, Dean & Wellman Toledo, Ohio 43603 National City - E. 6th Building Cleveland,-Ohio 44114 Russell J. Spetrino, Esq.

Thomas A. Kayuha, Esq.

Frank R. Clokey, Esq.- Ohio Edison Company Spscial Assistant Attorney General 47 North Main Street

! Towne House Apartments, Room 219 Akron, Ohio-44308 l Harrisburg, PA 17105

James E. Edgerly, Esq.

l - Donald H. Hauser, Esq. Secretary and General Counsel General Attorney ,

Pennsylvania Power Company Tho ' Cleveland Electric Illuminating Co. One East Washington Street P. O. Box 5000 New Castle, PA 16103

- Cleveland,-Ohio 44101 l Terrance H. Benbow, Esq.

Winthrop,. Stimson, Putnam & Pcterts 40 Wall Street New York, New York 10005 )

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Thomas J. Munsch, Jr., Esq.

Gentral-Attorney Duquesne Light Company 435 Sixth Avenue Pittsburgh, PA 15219 Dnvid McN. Olds, Esq.

John McN. Cramer, Esq.

R;cd Smith Shaw & McClay P. O. Cox 2009 Pittsburgh, PA 15230 LEn A. Rau, Esq.

Joseph A. Rieser, Jr., Esq.

Racd Smtih Shaw & McClay Suite 900 1150 Connecticut Avenue Washington, D. C. 20036 Edward A. Matto, Esq.

Assistant Attorney General Chief, Antitrust Section 30 East Broad Street, 15th Floor Columbus, Ohio 43215 Christopher R. Schraff, Esq.

Assistant Attorney General Environment Law Section 361 East Broad Street, 8th Floor Columbus, Ohio 43215 i

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