ML20045D241

Affidavit of AL Mosbaugh.W/Certificate of Svc

ML20045D241
Person / Time
Site:	Vogtle
Issue date:	06/08/1993
From:	Mosbaugh A AFFILIATION NOT ASSIGNED
To:
Shared Package
ML20045D232	List: ML20045D231 ML20045D235 ML20045D241
References
93-671-01-OLA-3, 93-671-1-OLA-3, OLA-3, NUDOCS 9306280122
Download: ML20045D241 (11)

Text

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• O UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION ATOMIC SAFETY AND LICENSING BOARD Before Administrative Judges:

Peter B. Bloch,' Chair Dr. James H. Carpenter Thomas D. Murphy

)

In the Matter of )

) Docket Nos. 50-424-OLA-3 GEORGIA POWER COMPANY ) 50-425-OLA-3 si &, )

) Re: License Amendment (Vogtle Electric Generating ) (transfer to Southern Nuclear)

Plant, Unit 1 and Unit 2) )

) ASLBP No. 93-671-01-OLA-3 AFFIDAVIT OF ALLEN L. MOSBAUGH My name is Allen L. Mosbaugh and I am over the age of 18.

The following statements are made under the pains and penalties of perjury and are true and correct to the best of my knowledge and belief.

1. I am an intervenor in the above-captioned proceeding.

2. I categorically state that I did not release any ,

tape recording (s) or any portions and/or excerpts and/or segments of any tape recording (s), or transcripts or pa.rtial transcripts, that I have ever had in my possession or control that in any way relate to the Site Area Emergency at Plant Vogtle or any other matter concerning Georgia Power Company to any person or persons associated with the news media. I do 'not know of anyone that has ever released any such tape recording (s) or transcripts on mp' behalf to the news media. EXHIBIT d 9306280122 930610 dl PDR ADOCK 05000424  !

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3. I have no first hand knowledge how the news media-obtained any tape recording (s) or any portions and/or excerpts .

and/or segments of any tape recording (s), or any transcripts or partial transcripts that was either obtained or broadcast by NBC i news.

AFFIANT SAYETH FURTHER NOT, C"8'%

Allen L. Mosbaugh -Date i

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U.S. DEPARTMENT OF LABOR SECRETARY of LABOR W ASHINGTON. O.C.

DATE: September 23, 1992 CASE NO. 90-ERA-58 IN THE MATTER OF ALLEN MOSBAUGH, COMPLAINANT, v.

GEORGIA POWER COMPANY, RESPONDENT.

BEFORE: THE SECRETARY OF LABOR FINAL DECISION AND ORDER On February 20, 1991, the Administrative Law Judge (ALJ) issued a Recommended Decision and Order of Dismissal Without Prejudice in this case arising under the Energy Reorganization Act of 1974, as amended (ERA), 42 U.S.C. S 5851 (1988). The ALJ's decision is based on Complainant's February 19, 1991, Notice of Dismissal Without Prejudice, which cites as authority Rule 41(a) (1) (1) of the Federal Rules of Civil Procedure and the Secretary's decision in Stites v. Houston Lichtina & Power Co.,

Case No. 87-ERA-41, Sec. Ord. of Dis., slip op. at 2-3, as authority. Respondent opposes the ALJ's recommended decision, arguing that if Complainant is allowed,to dismiss at all, it should be by leave of court and subject to certain conditions pursuant to Rule 41(a) (2) . After considering the record and the EXHIBIT EAGE OF

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law, I reject Respondent's arguments and agree with the ALJ's-recommendation. F The Secretary has held that under the ERA, a complainant is entitled to unilateral, unconditional dismissal of his ERA complaint in accordance with Rule 41(a) (1) (i) , where the respondent has not filed the functional equivalent of either an answer to the complaint or a motion for summary judgment. Reece

v. Detroit Edison, Case No. 92-ERA-1, Sec. Fin. Ord. of Dis.,

Apr. 9, 1992, slip op, at 2; Rainev v. Wayne State University, Case No. 90-ERA-40, Sec. Ord. to Show Cause, Jan. 7, 1991, slip op. at 4, Sec. Ord. of Dis., Feb. 27, 1991; Hendrix v. Duke Power Co., Case No. 90-ERA-32, Sec. Fin. Ord. of Dis., Sept. 2, 1990, slip op. at 2; Stites, slip op. at 2-3. F If a complainant's dismissal request is not covered by Rule 41(a) (1) , then "an action shall not be dismissed at the plaintiff's instance save upon order of the court and upon such terms and conditions as the F Respondent initially filed a motion with the ALJ requesting that he vacate his recommended decision. The ALJ forwarded the-motion and supporting brief to the Secretary, as the case already was pending before the Secretary for final review, and the documents were accepted into the record as Respondent's opposition brief. Supplemental Order Amending Briefing Schedule, dated March 14, 1991. Subsequently, both Respondent and Complainant filed additional briefs in response to the ALJ's recommended decision, as permitted by the briefing schedule.

F It is well settled that voluntary dismissals of ERA complaints are covered by Rule 41. Rainev, slip,op, at 3. Rule 41 applies because there are no procedures for voluntary dismissals contained in either the ERA, the implementing regulations at 29 C.F.R. Part 24 (1991), or the regulations at 29 C.F.R. Part 18 l (1991), which are generally applicable to any adjudicatory i proceeding brought before a Department of Labor administrative law judge. 29 C.F.R. S 18.1(a). j3 )

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court. deems proper." Fed. R. Civ. P. 41(a) (2) . See Nolder v.

Raymond Kaiser Encineers, Inc., Case No. 84-ERA-5, Sec. Fin. Dec.

and '(Rem.) Ord., June 28, 1985, slip op, at 6-7, appeal

-dismissed, No. 85-7472 (9th Cir.'1985).

Respondent argues: (1) that Rule 41(a) (1) (i) should not ,

apply because there is no opportunity in these circumstances to. .

file an answer or a motion; (2) that even if Rule 41(a) (1) (1) does apply, Respcndent filed the equivalent of an answer so as to preclude dismissal without leave of court; and (3) that even if Respondent cannot be deemed to have filed an answer, the advanced <

stage of the litigation precludes voluntary dismissal without leave of court. Respondent requests that any dismissal should be '

with prejudice, coupled with an order to require complainant to produce certain discovery, and also conditioned on payment of attorneys' fees and costs.

Respondent's arguments are without merit. First, I reject Respondent's argument that a " statement of position" document it filed before the Wage-Hour Administrator should be considered an

" answer" to the corolaint for purposes of Rule 41(a) (1) (1) . 2' The complaint filed with the Administrator under the ERA simply initiates an investigation. 29 C.F.R. S 24.4; Enalish v. General Electric Co., Case No. 85-ERA-2, Sec. Fin. Dec. and Ord., Feb. 13, ,

1992, slip op. at 10-11. If a party appeals the determination, F The Secretary has held that the respondent's request.for a-hearing following the adverse preliminary determination of.the Wage-Hour Administrator is the functional equivalent of an

" answer" for purposes of Rule 41(a) (1) (i) . Nolder, slip op, at 7-8. Here, complainant requested the hearing. 3 PAGE J3 -- DF to r

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4 1.e., requests a hearing, the parties are entitled to a de novo consideration of the case and all extant issues by an administrative law judge. Smith v. TVA, Case No. 87-ERA-20, Sec.

Fin. Ord. of Dis., Apr. 27, 1990, slip op. at 4 n.2; Ecenrieder

v. Metropolitan Edison Co., Case No. 85-ERA-23, Sec. Ord.,

Apr. 20, 1987, slip op. at 8 n.8. Consequently, and consistent with the narrow, delineating approach taken by the federal courts under Rule 41(a) (1) (i) , I do not find that Respondent's preliminary " statement of position," filed merely before the Administrator, is equivalent to an " answer" under the rules. See generally Thorn v. Scarne, 599 F.2d 1169, 1175-76 (2d Cir. 1979);

D.C. Electronics. Inc. v. Nartron Coro._, 511 F.2d 294, 297 (6th Cir. 1975); Pilot Freicht Carriers. Inc. v. International Brotherhood of Teamsters, 506 F.2d 914, 916 (5th Cir. 1975),

cert, denied, 422 U.S. 1048 (1975). In any event, the record contains no evidence of this document or that such a document was ever " served" on Complainant as would be required under Rule 41(a) (1) (i) . Lockarv v. Kavfetz, 917 F.2d 1150, 1157 (9th Cir.

1990) ; Aero-Colours. Inc. v. Propst, 833 F.2d 51, 52 (5th Cir.

1987). Respondent's argument must, therefore, fail.

Despite Respondent's general assertions, it has made no convincing argument that it could not have foreclosed Complainant's unilateral right of dismissal by the simple expedient of filing b'efore the ALJ the equivalent of a motion for summary judgment. See 29 C.F.R. S 18.40. Cf. D.C. Electronics. )

l Inc., 511 F.2d at 298 (rejecting the defendant's position that l EXHIBIT - 3 PAGE Y OF 0

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Rule 41(a) (1) (1) leaves it defenseless against the whim and caprice of the plaintiff). The fact that the ERA and the regulations at Part 24 do not expressly set forth a procedure in this regard does not preclude a respondent from filing an appropriate motion on its own volition.

Finally,-the courts repeatedly have admonished against engaging in a subjective approach of considering whether an

" advanced stage" of an action has been reached to find any exception to Rule 41(a) (1) (i) . E.g., Thorn, 599 F.2d at 1176; D.C. Electronics. Inc., 511 F.2d at 297-98; Pilot Freicht carriers Inc., 506 F.2d at 916-17. This is not an " extreme" case that might warrant such an exception. Thorn, 599 F.2d at 1176.

The merits of the case were never squarely raised, nor did the considerable time and effort expended by both parties in discovery procedures extend this suit into an " advanced stage."

Id.; Sheldon v. Amperex Electronic Corp., 52 F.R.D. 1, 7 (E.D.N.Y. 1971), aff'd, 449 F.2d 146 (2d Cir. 1971). Mere expenditure of time and money by Respondent does not bar Complainant's entitlement, as of right, to dismiss without prejudice. F Johnson Chemical Co.. Inc. v. Home Care Products.

F Respondent accuses Complainant of attempting to avoid the consequences of orders that had been previously entered by the ALJ, following a great expenditure of time and money by Respondent. Complainant replies that the ALJ had engaged-in a

" systematical denial of basic due process rights" which evinced bias, and now, Complainant seeks vacation of various orders issued by the ALJ in addition to dismissal without prejudice.

Complainant's Brief in Support of Complainant's Right to Dismissal Without Prejudice at 2-3, 6. First, I'am not convinced factually or legally of Respondent's accusation. Procedural (continued...)

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6 Inc., 823 F.2d 28, 31 (2d Cir. 1987).

Since the record indicates that Respondent did not file the functional equivalent of either an answer.or a motion for summary judgment, dismissal of the case is proper under Rule 41(a) (1) (i) rather than Rule 41(a)(2). Rainey, slip op. at 4-5; Hendrix, slip op. at 2; Stites, slip op, at 2-3. Where, as here, a complainant properly invokes the right, I decline to attach any

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condition or burden to that right.

Accordingly, the complaint IS DISMISSED.

SO ORDERED.

SedrWtary of Labor F(... continued) tactics employed by either party are not determinative of the legal questions posed here. Sheldon, 52 F.R.D. at 12. Nor will I entertain Complainant's request that I vacate certain orders issued by the ALJ. The effect of Complainant's notice of voluntary dismissal without prejudice was to render the proceedings a nullity.and leave the parties as if the action had never been brought. "It carries down with it previous proceedings and orders in the action, and all pleadings, both of plaintiff and defendant, and all issues, with respect to plaintiff's clain." Piner Aircraft Distribution System Antitrust Litication v. Piper-Aircraft Coro., 551 F.2d 213, 219 (8th Cir.

1977). 25 EXHIBIT -

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UNITED STATES OF AMERICA UMii'C NUCLEAR REGULATORY COMMISSION ATOMIC SAFETY AND LICENSING BOARD 93 JN 10 P3 :31 Before Administrative Judges:

Peter B. Bloch, Chair a !.  : .ic t r+ v Dr. James H. carpenter *E N m;~"-y' diI Thomas D. Murphy *

)

In the Matter of )

) Docket Nos. 50-424-OLA-3 GEORGIA POWER COMPANY ) 50-425-OLA-3 et al., )

) Re: License Amendment (Vogtle Electric Generating ) (transfer to Southern Nuclear)

Plant, Unit 1 and Unit 2) )

_ ) ASLBP No. 93-671-01-OLA-3 CERTIFICATE OF BERVICE I hereby certify that on June 9, 1993-Intervenor's Information and Brief concerning Motion for Protective-Order was served by first class mail upon the following:

Administrative Judge Peter B. Bloch, Chair Atomic Safety and Licensing Board U.S. Nuclear' Regulatory Commission Washington, D.C. 20555 Administrative Judge Dr. James H. Carpenter Atomic Safety and Licensing Board U.S. Nuclear Regulatory Commission Washington, D.C. 20555 Administrative Judge Thomas D. Murphy Atomic Safety and Licensing Board U.S. Nuclear Regulatory Commission Washington, D.C. 20555 Charles A. Barth, Esq. ,

Office of General Counsel ,

U.S. Nuclear Regulatory Commission Washington, D.C. 20555 l

I

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Ernest L. Blake, Jr.

David R. Lewis SHAW, PITTMAN, POTTS &

TROWBRIDGE

.2300 N Street, N.W.

Washington, D.C. 20037 John Lamberski, Esq.

Troutman Sanders Suite 5200 600 Peachtree Street, N.E.

Atlanta, GA 30308-2216

• Office of the Secretary (* Original and two copies)

Attn: Docketing and Service U.S. Nuclear Regulatory Commission Washington, D.C. 20555 Office of Commission Appellate Adjudication U.S. Nuclear Regulatory Commission Washington, D.C. 20555

_ ,sm By: # ' c~x ' m David K.I C'olapir@6/

Kohn, Kohn & Colapinto, P.C.

517 Florida Ave., N.W.

Washington, D.C. 20001 (202) 234-4663 e

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