ML20045G924
| ML20045G924 | |
| Person / Time | |
|---|---|
| Site: | Vogtle  |
| Issue date: | 06/27/1993 |
| From: | Kohn M JOINT INTERVENORS - VOGTLE, KOHN, KOHN & COLAPINTO, P.C. (FORMERLY KOHN & ASSOCIA |
| To: | Bloch P, Carpenter J, Murphy T Atomic Safety and Licensing Board Panel |
| References | |
| CON-#393-14077 93-671-01-OLA-3, 93-671-1-OLA-3, OLA-3, NUDOCS 9307160149 | |
| Download: ML20045G924 (34) | |
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i; June 27, 1993 Peter B.
Bloch, Chair l
Atomic Safety and Licensing Board Nuclear Regulatory Commission U.S.
]
Washington, D.C.
20555 Dr. James H. Carpenter Atomic Safety and Licensing Board U.S.
Nuclear Regulatory Commission 4
Washington, D.C.
20555 Thomas D. Murphy Atomic Safety and Licensing Board U.S. Nuclear Regulatory Commission j
Washington, D.C.
20555 l
Re:
In the Matter of Georgia Power Company, et.al. (Vogtle Electric Generating Plant, j
Units 1 and 2) Dockets Nos. 50-424-OLA-3 E l
50-425-OLA-3, ASLBP No. 93-671-01-OLA-3
Dear Honorable Judges:
We are writing in regards to the Memorandum and Order issued on June 24, 1993 (Order to Mr. Mosbaugh to Release Six Tapes).
In this memorandum, the Board raises a concern regarding Mr.
Mosbaugh's " apparent lack of openness" in the discovery process.
j^
The Intervenor strongly believes that the discovery process should be as open, fair and complete as possible and will fully j
comply with all of the rules and regulations governing discovery in this proceeding.
i i
In order to address the concern raised by the Board, 1
Intervenor's counsel has already contacted counsel to GPC and has scheduled a conference for Tuesday, June 29, 1993 and will, at i
that time, seek to resolve GPC's outstanding discovery concerns.
We hope that this process will lead to a " full and fair" discovery process for all parties.
I 93071601 $ h h 24 DR ADO PDR.
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Page 2 June 27, 1993 Letter to ABLB Additionally, Intervenor will supplement his responses to GPC's first set of interrogatories and GPC's first document request on or before June 30, 1993.
We hope that through the supplemental responses and our discussions with GPC's counsel on discovery matters, Intervenor will be able to resolve most if not all of the concerns GPC raised in Applicant's Motion to Compel dated June 17.,
1993.
Should GPC and Intervenor still have outstanding differences, counsel to Intervenor will file a response to the Motion to Compel on June 30, 1993.
Mr. Mosbaugh is very concerned about the Board's perception that Intervenor has not been open during the discovery process.1 In this respect, Intervenor would like to make this Board aware of the fact that GPC and Intervenor have a two year history of legal proceedings prior to the institution of this License Amendment proceeding.
During this time a significant amount of discovery had transpired between the parties.
In fact, prior to Applicant's filing of their document and interrogatory requests in this proceeding Mr. Mosbaugh had previously produced almost all of the documentation identified in GPC's document request.
1 In its June 24, 1994 Memorandum and Order, the ASLB referenced an earlier discovery controversy between the Mr.
Mosbaugh and GPC which was discussed in an order by Department of Labor Administrative Law Judge B.J. Gilday, Jr. ASLB M&O p.
2, N.
1.
The controversy addressed in Judge Gilday's Order was briefed by the parties to the Secretary of Labor for resolution.
- See, e.a.,
" Complainant's Brief in Support of Complainant's Right to Dismissal Without Prejudice," dated April 3, 1991, which is attached hereto as Attachment "A".
In response to the briefs filed by the parties, the SOL issued a Final Order rendering all orders issued by Judge Gilday, including the order referenced by this Board in footnote 1 of its June 24th Memorandum and Order, a
" nullity" which would have no legal or precedential value.
Mosbauch v. GPC, 90-ERA-58, Final Decision and Order of SOL, September 23, 1992, pp.
5-6, N.
4 (a copy of the Secretary's Order can be found as " Exhibit 3" to Intervenor's Information and Brief Concerning Motion for Protective Order, dated June 9, 1993).
Moreover, the SOL reviewed the discovery controversy and held that she was not " convinced factually or legally of [GPC's]
accusation" against Mr. Mosbaugh.
Thereafter, GPC failed to appeal the SOL's Order, which became final 60 days after its issuance.
2
Page 3 June 27, 1993 Letter to ABLB For example, during the U.S.
Department of Labor proceedings, Mr. Mosbaugh initially produced thousands of pages of documents pursuant to a notice of deposition and thereafter timely produced to GPC some 20 boxes of documents containing an additional 100,000 pages or more.
The fact remains that back in February of, 1991 every document that Mr. Mosbaugh and his counsel had located as of that date that in any way related to GPC or SONOPCO (excluding attorney-client and work product documentation, the tape recordings and documents NRC instructed 1
Mr.MosbaughnottoprovidetoGPC]wereproducedintheir entirety or made available to GPC With the following exceptions, Intervenor will make available all of the documentation in his control and possession I
responsive to GPC's discovery requests:
1.
Documents NRC-OI had previously sought leave to intervene to prohibit the release to GPC and which were withheld from GPC by order of Judge Gilday.
These documents are listed in an addendum to the Affidavit of Larry Robinson accompanying a motion to intervene filed by NRC (a copy of NRC's Motion and accompanying i
affidavit of Larry Robinson are attached hereto as Attachment B).
With respect to these documents, Intervenor will withhold production for a reasonable period of time to allow NRC an opportunity to renew its j
objection to their release.
Should NRC no longer object, or should this Board overrule NRC's objection or otherwise require Intervenor to produce these documents, Intervenor will make this documentation available to GPC; l
2 Since 1990, Mr. Mosbaugh has assisted NRC-OI investigate numerous allegations relevant to this proceeding.
From the outset, Mr. Mosbaugh has been very concerned that his disclosure of information to GPC not interfere with the confidential nature of the OI investigation.
It has been the past practice of Mr. Mosbaugh to confer with NRC-OI as to whether the release of certain information would interfere with its on-going investigations.
On this basis, the NRC-OI has objected to Mr. Mosbaugh's release of certain information during the course of the 2.206 and Section 210 proceedings.
1 Page 4 l
June 27, 1993 j
Letter to ASLB 2.
Written allegations Allen Mosbaugh delivered to NRC-OI substantially identical to the documents NRC previously objected to the release thereof.
Intervenor will withhold disclosure of these documents for a reasonable period to allow NRC an opportunity to object to their production.
If the NRC Staff does not object to their 4
disclosure, or should this Board order their disclosure, these documents will be provided to GPC.
4 3.
Attorney-client communications.
Intervenor will index all such documentation being withheld and provide this index to GPC and the NRC Staff.
4.
Attorney Work Product.
Intervenor will index all such documentation and will provide GPC and NRC Staff a copy of this index.
2 Intervenor is compiling an index of all documents to be withheld (i.e., the documents identified in items 1-4 and/or any other document which intervenor is not :taking available to GPC for any reason whatsoever.
Intervenor will serve this index on counsel to GPC on or before July 2, 1993.
This index will
~
prcvide GPC an opportunity to raise objections to any specific document withheld by Intervenor.
Respectfully submitted, J
Michael D, Kohn Stephen M.
Kohn Attorneys for Intervenor H
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i Page 5 l
June 27, 1993 i
Letter to ASLB 4
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5 CC:
1 Charles A.
Barth, Esq.
I Office of General Counsel l
U.S.
Nuclear Regulatory Commission i
Washington, D.C.
20555 3
John Lamberski, Esq.
1 Troutman Sanders
{
Suite 5200 600 Peachtree Street, N.E.
]
Atlanta, GA 30308-2216 i
Office of the Secretary Attn: Docketing and Service l.
U.S.. Nuclear Regulatory Commission j
Washington, D.C.
20555 Ernest L.
Blake, Jr.
David R.
Lewis SHAW, PITTMAN, POTTS & TROWBRIDGE.
4 2300 N Street, N.W.
Washington, D.C.
20037
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8 Note:
This letter has been faxed to all parties without 3
attachments and a copy with attachments sent by first class mail.
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i UNITED STATES OF AMERICA BEFORE THE UNITED STATES SECRETARY OF LABOR
)
Allen L. Mosbaugh,
)
)
Complainant,
)
)
v.
)
)
90-ERA-58 Georgia Power Co.
)
)
Respondent.
)
)
COMPLAINANT'S BRIEF IN SUPPORT OF' COMPLAINANT'S RIGHT TO DISMISSAL WITHOUT PREJUDICE On March 15, 1991, complainant's counsel received from the U.S. Department of Labor Office of Administrative Appeals a Supplemental Order Amending Briefing Schedule, dated March 14, 1991.
This brief is filed in a timely manner in accordance with that Order.
I.
ARGUMENT 1.
Judge Gilday Abused his Power During Discovery to The Point of Forcing Complainant to seek a Without Prejudice Dismissal of His Case and, as such, four orders issued by Judge Gilday should be vacated before the Secretary of Labor dismisses this case A.
Backaround on February 20, 1991, Administrative Law Judge Bernard J.
Gild y Jr., issued a Recommended Decision and Order of Dismissal Withot '. Prejudice (hereinafter "RDO").
Judge Gilday issued his RDO in response to a February 19, 1991 Notice of Dismissal Without Prejudice filed by complainant's counsel pursuant to' Rule 41(a) (1) (1) of the Federal Rules of civil Procedure and the decision of the Secretary of Labor in Stites v. Houston Lichtina
& Power Co., 87-ERA-41 (September 29, 1989).
complainant was forced to seek a without prejudice dismissal of his case as a result of systematic denial of basic due process l
rights by Judge Gilday.
These proceedings are governed by the Rules of Practice and Procedure for Administrative Hearings before the Office of Administrative Law Judges found in 29 C.F.R.
Part 18. 29 C.F.R.
S18.6 states in relevant part that "all parties shall be given reasonable opportunity to state an objection to [any] motion."
29 C.F.R.
S18.6(b) states that "within ten (10) days after a motion is served, or within such other period as the Administrative Law Judge may fix, any party to the proceeding may file an answer...in opposition to the motion...."
During the course of this proceeding, respondent filed four discovery motions with Judge Gilday.
Each was granted in violation of 29 C.F.R.
S18.6 inasmuch as Judge Gilday never affording complainant an opportunity to respond --
even aftcr complainant's counsel expressly advised the court of s
complainant's intent and desire to file a timely response.
Finally, on February 19, 1991 Judge Gilday attacked complainant's motives in an Order he issued.
The attack was based on allegations contained in a February 15, 1991 pleading filed by respondent -- allegations complainant knew to be false and misleading.
Yet, after complainant faxed Judge Gilday a letter advising him of complainant's desire to file a reply, Judge Gilday still chose to attack complainant's motives (a critical element of the case) before complainant could file a timely reply 2
i to respondent's brief.
j Simply stated, Judge Gilday's habitual denial of basic due process rights to complainant every time respondent filed a motion with the court eventually became so oppressive and gave complainant the impression that Judge Gilday was prejudiced and l
i bias against him that complainant chose to voluntarily dismiss j
the instant case without prejudice.
Below is a brief description of the four successive motions filed by respondent and summarily granted by Judge Gilday in violation of 29 C.F.R.
518.6.
1 September 4.
1990 Order On August 30, 1990, respondent filed the first of four motions with the Court.
It was mailed by Federal Express on j
August 30, 1990.
On or about August 31, 1990, complainant's counsel contacted Judge Gilday's law clerk to request a telephone conference call related to the motions pending before the court.
The clerk, after advising complainant's counsel that he had spoken with Judge Gilday, informed him that Judge Gilday did not j
wish to participate in a conference call at this time or in the future.
Complainant's counsel advised Judge Gilday's clerk that a written reply to the motion would be filed.
On September 4, 1990, Judge Gilday granted respondent's motion without allowing complainant an opportunity to respond.
September 12. 1990 Order i
On September 12, 1990 respondent filed a second motion to compel with Judge Gilday.
An Order granting this motion was 3
'I r
t 4
issued the dame day.
Judge Gilday never as much as inquired whether complainant wished to file a reply to the motion before issuing his Order.
The judge never issued an order truncating the time period in which to file a response.
January 22, 1991 Order On January 22, 1991 Judge Gilday received Respondent's Third Motion to Compel.
Again, without as much as offering complainant an opportunity to be heard, Judge Gilday, on January 22, 1991 granted Respondent's Third Motion to Compel the same day it was filed.1 February 19, 1991 Order On February 14, 1991 the U.S.
Nuclear Regulatory Commission
("NRC") filed a motion requesting a partial Stay of Judge Gilday's January 22, 1991 Order.2 On February 15, 1991, GPC filed an inflammatory response to the NRC motion.
- Therein, 1
Four months prior to issuing his January 22, 1991 Order, Judge Gilday had already issued a previous order dated September 13, 1990, which stated, inter alia, that a response to a motion s
could be filed within ten days of the filing of a motion.
In Judge Gilday's own words motions were to "be filed in the orderly cause of business and a response thereto shall be filed within ten (10) workina of each filina.
A rulina will be made within five _(jD.
workina days thereafter,"
(emphasis added).
But the moment i
respondent filed another motion, Judge Gilday disregard the dictates of his September, 1990
- and, once
- again, denied complainant's the right to be heard.
2 The NRC advised Judge Gilday in its February 14, 1990 brief that release of the documentation could " seriously compromise the ongoing NRC investigations into various alleged violations of NRC regulations at GPC's Vogtle Power Station."
See, NRC Motion for a Partial Stay of Judge Gilday's January 22, 1991 Order, at p.
4; also see September 13, 1990 NRC Motion to Stay Discovery at p.
1.
Judge Gilday was further advised that the NRC-OI investigation could result in criminal prosecution.
Id.
4
respondent asserted that complainant had an " ulterior motivo to avoid production in defiance of [ Judge Gilday's] order," 14. at p.
7, and challenged complainant's motive for not turning over the documents to the NRC sooner.
Complainant and his counsel discussed respondent's February 15, 1991 pleading and determined that the record needed to be corrected with respect to the alleged facts respondent relied upon when it asserted that complainant had an ulterior motive for not turning the documents over to the NRC prior to February, 1991.3 Given Judge Gilday's prior history of granting respondent's motions without offering complainant an opportunity to be heard, complainant's counsel sent a letter via facsimile to Judge Gilday on February 18, 1991 advising him that complainant intended to file a response to the pleadings before the Court and specifically advised Judge Gilday that the response would be filed "no later than close of business on February 21, 1991."'
See, February 18, 1991 letter from M. Kohn to Judge Gilday 3
Complainant was intending on advising the court that, in fact, copies most of the documents identified in the NRC's February 14, 1991 motion were long ago turned over to the NRC by complainant; and that only reason complainant notified the NRC that certain documents were about to be turned over to GPC was because complainant sunpected that by turning over the documents he would interfere with on-going NRC-OI investigations. Indeed, complainant was correct and, the NRC, on its own motion, sought to protect disclosure of certain documents from GPC.
Complainant further intended to point out to the court that what was rather occurring was that respondent was attempting to use discover in a Section 210 case in order to help defend itself against possible criminal indictments stemming from four on-going NRC-OI investigations.
Pursuant to 29 C.F.R.
S18.6, the ten day period in which to file a reply gave complainant until February 24, 1991 in which to file a reply.
5
4 J
(appended hereto as attachment 1).
Nonetheless, on February 19, 1991, Judge Gilday, for the fourth consecutive time in a row, issued his Order Granting Motion for Partial Stay of Execution of Order Granting Motion to Compel Issued on January 22, 1991
(" February 19, 1991 Order")
i without regard to complainant's due process right to be heard.
But more troubling was the fact that Judge Gilday's February 19, j
1991 Order overtly attacked complainant's motive -- the very aspect of the record complainant wished to correct.
The February 19, 1991 Order states in part:
Complainant's actions raise serious questions, not only about his true motives and goals, but also about the quality of the techniques which have been employed... complainant has affixed to his j
case a brand he personally designed.
February 19, 1991 Order at pp.
1-2.
From the tone of the February 19, 1991 Order, Complainant i
concluded that Judge Gilday was biased and had prejudged the issue of motive without allowing complainant the right to be s
heard.
Based on Judge Gilday's continued denial of basic due process to complainant, and based on the contents of Judge i
Gilday's February 19, 1991 Order, complainant concluded Judge
- l Gilday was biase'd against him.
Because complainant was systematically denied his fundamental due process right to be heard, he now seeks vacation of the various orders issued by Judge Gilday where complainant was denied his basic due process right to be heard.
6
7 b.
Authority 3
It is well settled that due process violations stemming from 1
the failure to follow an agency's established procedural rules l
" taints the proceeding" and violates the results."
Tideland Weldina Service, et. al v. Walter Sawyer, et. al, 881 F.2d 157 at 661 (
Cir. 1989) (quoting from Hall v.
Schweiker, 660 F.2d 116, 119 (5th Cir. 1981), citing Pacific Molasses Co.
v.
F.T.C.,
356 F.2d 386 (5th Cir. 1986) and Alamo Exnress. Inc.
v.
U.S.,
613 F.2d 96 (5th Cir. 1980).
Moreover:
The obligation of an agency to follow its own regulations is the primary building block of administrative law.
'When an administrative agency promulgates rules to govern its proceedings, these rules must be scrupulously observed...If an agency in its proceedings violates its rules and prejudices results, any action taken as a result of the proceedings cannot stand.'"
Scott v.
Neckler, 768 F.2d 172, 178-179 (7th Cir. 1985) (quoting Black v.
ICC, 737 F.2d 643, 652 n.
3 (7th Cir. 1984)(quoting Pacific Molasses Co. v.
FTC, 356 F.2d 386, 389-90 (5th Cir.
1966) (citations omitted).
Also see, U.S. v. Nixon, 418 U.S.
- 683, 695-96, 94 S.Ct. 3090, 3101, 41 L.Ed.2d. 1039 (1974).
)
It is well settled that the " fundamental requirement of due 1
l process of law is the opportunity to be heard," Goldbero v.
Kelly, 397 U.S.
254, 267-68, 90 S.Ct. 1011, 1020, 25 L.Ed.2d 287 (1970) and that "the requirements of fairness are not exhausted in the taking or consideration of evidence but extend to...the beginning and intermediate steps as well."
Moraan v. Unites 7
4 States, 304 U.S.
1 at 19-20, 58 S.Ct. 773 at 777, 82 L.Ed. 1129 (1938).
"[F]ailure on the part of the agency to act in compliance with its own regulation is fatal to such action."
Frisby v.
HUD, 755 F.2d 1052, 1055 (1985) (citing Kelly v.
Railroad Retirement Bd.,
625 F.2d 486, 492 (3rd Cir. 1980).
Fundamental fairness required Judge Gilday to allow Complainant an opportunity to be heard.
By systematically
]
denying complainant the right to present any argument or correct 1
the record prior to granting four consecutive motion filed by respondent, Judge Gilday prejudiced Complainant.
j As a result of the continuous denial of due process to complainant, the Secretary of Labor should vacate Judge Gilday's Orders of September 4, 1990, September 12, 1990, January 22, 1991 and February 19, 1991 in their entirety.5 2.
After the Secretary Vacates Judge Gilday's Orders of September 4 and 12 of 1990, and January 22 and February 19 of 1991, this Case Should be Dismissed Without Prejudice Pursuant to Complainant's Notice of Dismissal Filed on February 19, 1991.
s Upon receiving Judge Gilday's February 19, 1991 Order, complainant concluded that Judge Gilday's systematic denial of basic due process procedural rights had irrevocably prejudiced complainant's case.
Within an hour or so after reviewing the order, complainant' counsel immediately filed Notice of Dismissal 5
The fact that Judge Gilday might still have reached the same conclusion after affording complainant a
reasonable opportunity to be heard makes no difference; the orders must still be vacated in there entirety.
See Russell-Newman Mfa. Co. v. NLRB, 370 F.2d 980, 984 (5th Cir. 1967).
o 8
i l
l without Prejudice pursuant to Fed.
R.
Civ.
P. 41 (a) 1) (1) and l
Order of Dismissal of the Secretary in Stites v. Houston Lichtina
& Power Co.,
87-ERA-41 (Sept. 29, 1989).
On February 20, 1991 Judge Gilday issued a Recommended
}
Decision and Order of Dismissal Without Prejudice.
Respondent makes three separate argues as to why Rule 41(a) (1) (1) should not be applied to the instant case.
For the reasons set out below, i
these arguments are frivolous at best.
A.
Rule 41(a) (1) (i) does anniv to ERA Cases 4
Respondent argues on page 8 of its Brief that Rule 41(a) (1) (1) should not be applied to the instant case.
But, the Rules of Practice and Procedure for Administrative Hearings before the Office of Administrative Law Judges, 29 C.F.R.
Part
[
18, explicitly acknowledges that the Federal Rules of Civil
{.
Procedure should be applied in every circumstance not provided for in 29 C.F.R.
Part 18.
See, 29 C.F.R. 18.1(a).
Under 29 C.F.R.
18.29 (a) (8), ALJ's are vested with the authority to s
exercise, where applicable, the Federal Rules of Civil Procedure (F.R.C.P).
Obviously, the F.R.C.P.
apply in this case because voluntary dismissal is only addressed in the F.R.C.P.
and not 29 C.F.R.
Part 18.
l The Secretary's Order of Dismissal in Stites v.
Houston Lichtinc & Power Co.,
87-ERA-41 (Sept. 29, 1989) is unambiguous and correctly reasoned.
The Secretary has already determined that a complainant is free to dismiss any appeal of a Wage and Hour determination filed by the complainant up until respondent 9
l
files an answer or motion for Summary Judgment.
Id. at 3.
The requirement that respondent " file an answer or move for summary I
judgment is a
' bright line' rule leaving 'no discretion to the courts.'"
Johnson Chemical Co.,
Inc. v Home care Products, 823 4
F.2d 28, 30 (2nd Cir. 1987) (quoting Thorne v.
Scarne, 599 F.2d 1169, 1173, 1175-76 (2nd Cir. 1979).
Also see, Universidad Cent.
- Ste, v.
Liaison C.
on Med.
Ed.,
760 14, 19 (1st Cir. 1985)
(" Rule
{
41(a) (1) is clear and unambiguous on its face and admits of no exceptions that call for the exercise of judicial discretion-by any court.)
B.
GPC has not Filed the Eauivalent of an Answer Respondent argues in its brief beginning at page 15 that GPC's filing of a position a statement with the DOL Wage and Hour investigator was the equivalent of a motion for summary judgment.
i This assertion is utterly frivolous.
First, respondent's position statement is not a part of the record in this a
proceeding.
It was not served upon the complainant or filed with the court, it does not set out GPC's affirmative defenses and it does not meet the other specific requirements of an
" answer" as contemplated under the F.R.C.P.
Where GPC admits in its Brief that the filing of this position statement was i
" exclusively within the option of the respondent."
Id. at p.
The filing of an answer under F.R.C.P.
is mandatory.
- Moreover, complainant's filing of the telegrammed appeal creates a de novo proceeding.
A letter filed before the telegrammed appeal (which is not part of the record in this case) is not equivalent to an 10
4 1
answer or a motion for summary judgment.
Moreover, respondent's Brief in Support of its Motion to Vacate conveniently overlooked the case law concerning I
equivalency.
It is well settled that a memorandum of law can not be
" transformed" into a motion for Summary Judgement for the purpose of F.R.R.C. Rule 41(a) (1) (i).
Thorne v.
Scarne, 599 F.2d 1169 at
- p. 1174 (2nd Cir. 1979).
Also see cases cited therein (Scam Instrument Corp.
v.
Contral Data Coro., 458 F.2d 885 (7th Cir.
4 1972) (holding that a motion to dismiss is not equivalent to a 4
motion for Summary Judgment under Rule 41(a) (1) (i).
Merit Ind.
Co.
v.
Leatherby Ins.
Co.,
581 F.2d 137 (7th Cir. 1973); Nix v.
Fulton Lodce No. 2 of IAMAW, 452 F.2d 794, 797-98 (5th Cir.
i 1971), cert. denied, 406 U.S. 946 (1972).
e 5
C.
The Case Has Not Proceeded Too Far to Deny Complainant a Richt to a Dismissal Without Preiudice i
Respondent asserts on page 17 of its brief that this case i
has proceeded too far for complainant's right to a without l
prejudice dismissal to stand.
To make this argument respondent relies upon Harvey Aluminum. Inc. v.
American Cvnamid Co.,
203
~
F.2d 105 (2nd Cir. 1953).
But, the Harvey case has been explicitly limit'ed and all but overruled in the circuit it originated and has not been followed in any other circuit.
- Egg, e.a. Thorne, supra. at 1175.
Respondent's argument that the case has progressed too far to allow complainant the right of voluntary dismissal is 11
1 l
l frivolous for the simple reasons that "[m)ere expenditure of time j
I and money by a defendant, however, does not bar a plaintiff from I
timely dismissing an action under Rule 41(a) (1) (1).
Johnson Chemical Co..
Inc. v.
Home care Products, 823 F.2d 28, 31 (2nd i
Cir.1987) (citing Carter v.
U.S.,
547 F.2d 258, 259 (5th Cir.
4 l
1977).
l Respondent's argument that the Wage and Hour investigation i
is the equivalent of a hearing on the merits is equally flawed.
d i
The Wage and Hour investigatory phase is an ex carte proceeding I
i without any form of due process rights or discovery privileges j
afforded to the complainant.
Egg 29 C.F.R.
524.4.
Indeed, 29 i
l i
C.F.R.
524.4 states that the filing of the telegram constitutes a a
" request" for a " hearing," and that, pursuant to 29 C.F.R.
524.5, j.
a notice of hearing is issued by the administrative law judge j
assigned to the case.
Because due process requirements are 4
absent before the Wage and Hour investigatory phase and because I
the regulations clearly establish that a hearing on the complaint j
does not commence until after a telegramed request for a hearing l
is sent, the Wage and Hour investigation can not be said to constitute a hearing on the merits.
I i
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12
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CONCLUSION For the foregoing reasons, Judge Gilday's Discovery Orders of September 4, 1990, September 12, 1990, January 22, 1991 and February 19, 1991 must be vacated and thereafter, this case should be dismissed without prejudice pursuant to F.R.C.P.
41(a) (1) (1).
Respectfully submitted, Michael D. Kohn Kohn, Kohn & Colapinto, P.C.
517 Florida Avenue, N.W.
Washington, D.C.
20001 l
(202) 234-4663 1
Dated: April 3, 1991 4
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February 18, 199,1 By: Facsimile Hon. Bernard J.
Gilday, Jr.
U.S.
Department of Labor Office of Admin. Law Judges 525 Vine Street, Suite 900 Cincinnati, Ohio 45202 i
Re:
Mosbaugh V. Georgia Power Company, Case No. 90-ERA-58
Dear Judge Gilday:
On February 14,iled a motion requesting a partial stay 1991, the U.S. Nuclear Regulatory Commission of discovery ("NRC")
f in the above-referenced matter.
On February 15, 1991, respondent, Georgia Power Company ("GPC"), filed a response to the NRC's Motion alleging that complainant has used the NRC to avoid produc1ng documents respondent is entitled to discover in this proceeding.
s Complainant intends to respond to these pleadings and will do so no later than close of business on February 21, 1991.
Respectfully submitted, K
Michael D.
Kohn Counsel to Allen L.
Mosbaugh cc:
Jesse P. Schaudies NRC Office of General Counsel 65a/6 6-
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j CERTIFICATE _OF_ SERVICE I
J I HEREBY CERTIFY that a copy of the foregoing was served upon j
the following parties by first-class mail, postage prepaid on April 3,
1991:
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office of Administrative Appeals U.S.
Department of Labor j
200 Constitution Ave., N.W.
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Room S-4309 j
washington, D.C..
20210 4
i Jesse Schaudies Troutman, Sanders, Lockerman i
and Ashmore 1400 Candler Building 127 Peachtree Street, N.E.
j Atlanta, GA 30303 By:
Michael D.
Kohn d
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UNITED STATES DEPARTMENT OF LABOR WAGE AND HOUR DIVISION
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ALLEN MOSBAUGH,
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Complainant,
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v.
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90-ERA-58
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GEORGIA POWER COMPArY,
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Respondent.
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MOTION BY THE U.S.
NUCLEAR REGULATORY COMMISSION FOR A PARTIAL STAY OF THIS TRIBUNAL'S ORDER j
GRANTING MOTION TO COMPEL DATED JANUARY 22. 1991 The Nuclear Regulatory Commission ("NRC") hereby requests this Tribunal to issue a partial stay of its " Order Granting Motion To Compel" (January 22, 1991) ("the Order"), as set forth below.
I.
Backcround.
r 1.
On September 13, 1990, at the NRC's request, this Tribunal issued an Order staying Complainant's requirement to comply with prior discovery requests by respondent Georgia Power d
Company ("GPC") because that compliance might compromise an ongoing investigation into alleged violations of the NRC's public health and safety regulations by GPC.
See NRC Stay Request (Sept. 13, 1990); Stay of Execution (Sept. 13, 1990).
2.
As a result of that order, GPC Counsel asked the NRC to attempt to resolve future similar discovery disputes on an
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e informal basis instead of proceeding to seek stays of discovery i
orders by this Tribunal.
3.
On January 22, 1991, this Tribunal issued an Order directing Complainant to comply with requests for discovery by GPC and to produce documents for GPC review and copying.
4.
Late in the afternoon of Friday, January 25, 1991, the Complainant notified Mr. Larry Robinson, the lead investigator assigned to these cases from the NRC's Region II Office of Investigations ("OI"), at the investigator's residence, that he had received an Order from this Tribunal directing production of documents.
Mr. Robinson was unable to notify NRC I
counsel of this matter until Monday, January 28, 1991.
4 5.
On Tuesday, January 29, 1991, the day Complainant was to comply with the Order, the Complainant arrived at Region II OI Headquarters with approximately twenty (20) boxes of documents subject to the Order.
6.
At that time, Complainant advised Mr. Robinson that the Order encompassed documents which not only might compromise the NRC investigation but some of which he had not previously provided to the NRC.
7.
After an abbreviated review, Mr. Robinson identified seventeen (17) documents which, in his professional judgment, if disclosed could seriously compromise the investigation of GPC for alleged violations of NRC health and safety regulations.
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j II.
The NRC's Recuest To GPC.
1 I
8.
On Tuesday, January 29, 1991, upon request by Mr.
i Robinson, the undersigned NRC counsel communicated with GPC i
l counsel and requested that GPC temporarily excuse Complainant from compliance with the Order as to those 17 documents and only those 17 documents.
i 9.
GPC Counsel agreed to NRC Counsel's request on the express conditions that: (1) GPC did not waive any of its rights j
to ultimately receive the documents so withheld; and (2) the NRC provide GPC with an index describing the documents.
10.
NRC Counsel agreed to both conditions, GPC Counsel agreed to excuse Complainant from compliance with the order, and, based on that agreement, Complainant withheld the documents from j
discovery on January 29, 1990.
Those documents are now in the sole possession of the NRC.
The NRC agreed that GPC could file a i
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statement with the Tribunal explaining the actions taken and 4
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reserving its rights.
f 11.
Late on January 29, 1990, the undersigned 1
i confirmed GPC's agreement with Complainant's Counsel during a i
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telephone conversation.
12.
On February 5, 1991, the NRC provided GPC with an I
index of the documents withheld.
A copy of that index is j.
attached to Mr. Robinson's Declaration.
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III.
Necotiations For A Joint Stipulation.
13.
On January 30, 1991, GPC Counsel notified the NRC that GPC wished the NRC to join in filing a joint stipulation with this Tribunal.
14.
The NRC advised GPC that it did not object to GPC filing its own statement protecting its rights.
However, the NRC agreed to negotiate with CPC over the terms of a proposed joint stipulation, i
15.
The negotiations failed, in major part, because GPC insisted that the NRC commit to release the documents within a specified time, measured in days, while the NRC agreed to j
release the documents at an unspecified future date, measured in months, when release of the documents would not compromise the I
investigation, even if the investigation was still ongoing.
16.
On February 12, 1991, Counsel for GPC informed the undersigned that if an agreement was not concluded by c.o.b.
]
February 13, 1991, GPC would take the position that it was free to seek enforcement of the January 22 Order against Complainant.
IV.
Reasons Underlyina The NRC's Motion.
17.
In the professional judgment of Mr. Larry
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Robinson, the NRC investigator assigned to the cases involving
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this matter, release of the seventeen (17) documents described in Exhibit 1 could seriously compromise the ongoing NRC investigations into various alleged violations of NRC regulations at GPC's Vogtle Nuclear Power Station.
Mr. Robinson's
i Declaration is attached as Exhibit 3.
Attached to the Declaration is Mr. Robinson's Statement of Professional Qualifications.
18.
In view of the fact that several of the NRC 4
regulations of which violations have been alleged were enacted d
under Sections 161(b), (i), or (o) of the Atomic Energy Act of 1
1954 as amended, 42 U.S.C.
2201(b), (i), or (o), and because willful violations of these regulations are made criminal under section 223 of the Atomic Energy Act, 42 U.S.C.
2273, compromise of the NRC investigation may also prejudice any possible referral of the completed NRC case to the U.S.
Department of Justice i
i
("DOJ") for prosecutorial review.
19.
Under the Memorandum of Understanding ("MOU")
s between the NRC and the Department of Labor (" DOL"), 47 Fed. Reg.
)
55444 (Dec.
9, 1982), the NRC "has independent authority under the Atomic Energy Act to take appropriate enforcement action against Commission licensees that violate the Atomic Energy Act, 1
the Reorganization Act, or Commission regulations."
1 20.
The MOU also provides that "the agencies agree that administrative efficiency and sound enforcement policies j
will be maximized by cooperation and the timely exchange of information in preas of mutual interest."
Id.
Moreover, "(e]ach agency agrees to share and promote access to all information it obtains concerning a particular allegation and to the extent permitted by law, will protect the confidentiality of information 5
identified as sensitive that has been supplied to it by the other i
agency."
Id.
I 21.
The NRC commits to this Tribunal that it will process this case expeditiously and, because of the unique and J
exigent circumstances surrounding this case, if the requested stay is granted, the NRC will file a status report on the 1
availability of the documents withheld at sixty (60) day intervals beginning on May 1, 1991.
22.
The NRC is prepared to appear before this Tribunal, at the Tribunal's convenience, in camera, to explain l
j the basis for this motion, or to discuss this motion in open session to the extent that the discussion will not compromise the investigation.
23.
In a related matter, the NRC will return to the Complainant a significant number of the originals of his tapes which he provided to the NRC under protection of this Tribunal's Order of September 13, 1990.
Upon information and belief, these tapes will be delivered to Complainant on or about February 14, 1991.
The NRC intends to return 201 out of a total of 277 tapes.
THEREFORE, j
The NRC respectfully moves this Tribunal for an Order which:
- 1. Excuses compliance by the Complainant with this Tribunal's Order of January 22, 1991, to the extent and only to the extent of the documents described in Exhibit 1; and 6
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Excuses such compliance on a temporary basis until and only until the NRC notifies the parties and this Tribunal i
that release of the documents would not compromise the NRC i
investigation and/or possible subsequent referral to the U.S.
DOJ i
and that it has released the documents to the Complainant.
Respectfully submitted i
i i
i F.
CORDES, JR.
i olicitor i
^s S
CHRELES E. MULIII S' Attorney Office of the neral Counsel U.S.
Nuclear R gulatory Commission Washington, D.C.
20555 (301) 492-1606 Dated:
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cc:
Michael D. Kohn, Esq.
Jesse P. Schaudies, Esq.
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i OECLARAi!0N OF LARRY L.
ROBINSON
- ..arry L.
Rootnsen, ce nereov :eclare tnat tne following is true ano
- rrect, under :enalty cf cer;ury, t: tne nest of my abritty.
1.
My name is Larry L.
Rootnson.
I as employed as an Investigator with the Cffice of Investigations, United States Nuclear Regulatory Coomassten.
My
- uttes incluce the conduct of Investigations of licensees, applicants, their contractors or vendors, including tne investigation of all allegations of arongcoing by other than NRC emoleyees anc contractors.
2.
I sake these statements cased upon my own personal knowledge, or upon knowledge entainec by me during the course of my employment. and relied upon-by me in the performance of my official duties.
2.
The Office of Investigations (01), Region II (RII), NRC, currently has four pending investigations regarding allegations of intentional wrongdoing on the part of Georgia Power Company (GPC) Managers atlthe Vogtle Electric Generating Plant (VEGP).
These investigations basically involve allegations of delinerate Violations of Tecnnical Specifications, and Material False Statements.
If these allegations are substantiated, they could constitute violations of NRC regulations enactea to protect the public' health and safety.
4 On January 25, 1991, Allen L. Mosbaugh, formerly a GPC.emoloyee at VEGP, telephoned and advised me that, an the progress of his discrimination complaint against GPC (Departsent of Labor Case No.
90-ERA-58), he was ordered, by the Department of Labor on January 22, 1991, to provide to GPC, within five working days, all documents in his possession that pertained to Plant Vogtle.
From Mosbaugn's description of some of these documents, I determined that there was reasonable cause to believe that oending NRC Investigations would be compromised if these documents were to be provided to GPC prior to completion of these investigations.
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5.
On January 29, 1991, Mosbaugh appeared at my office in Atlanta, GA to display and further cescribe the documents to which he referred in his January 25, 1991 telephone call to me.
This meeting further confirmed my determination of probable compromise of pending investigations if these I
documents were to be released prior to completion of these investigations.
6.
An index of these documents is attached to this Declaration.
7.
In my professional judgement, review of these documents by GPC personnel, or their representatives, prior to the completion of the af orementioned investigations, would severely compromise the integrity of these investigations.
Further, declarant sayeth naught.
Dated this'13th day of Februiry, 1991 at Atlanta, Georgia.
Larry
. Robinson
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i 1.
Copies of Transcript of Interview of Allen Mosbaugh by 4
the United States Nuclear Regulatory Commission, at Augusta, Georgia, on July 18, 1990 (pages 1-97), and j
July 19,1990 (pages98-255).
i 2.
One page handwritten note, headed 'PRB- + Cliff & Ramsey
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2-7-90*
1 a
3.
One-page handwritten note, dated B-14-90, headed '9:30 Parton*
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4.
Copy of one-page 6PC Interoffice Correspondence, dated August 29, 1990, Re Classification of Saf eguard Documents 5.
One page document titled, " Alternate Radwaste Building 3
Liquid Radwaste Systen Failure Of f site Dose Analysis' 6.
Six page document, untitled, first line reads
- The
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6eorgia Power Company has made two material false....*
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-- 7.
Three-page document titled, " Operation outside the Design l
Basis Fire plus LOSP Defeats Safe Shutdown Design Capability
- 1 5
8.
Two-page document, addressed: To: Larry Robinson, NRC 01.
The first sentence begins,' During my interview with you on j
2-8-90, you had asked......."
j
--- 9.
Five page docusent entitled, " Uncontrolled Safeguards Documents in SON 0PCD............"
J i
10.
Two-page document entitled, " Failure to Perfora Adequate Shutdown Margin Calculations......."
w Two-page document entitled,
- Sequencer out of service places Plant in TS 3.0.3 Action Statement" i
j
-r-12.
Three-page document addressed to the Nuclear Regulatory i
Consission.
The first line reads," On 10-13-88 at approximately i
10:30 and again at 1640 CST......'
q-13.
One-p' age document addressed to the Nuclear Regulatory Consi s si on.
The first line reads," On 2-26-90 around 10:00 the
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NRC's resident inspector at........"
d' 14.
One-page document, untitled.
First line reads,' Suddenly a t has become a popular argument at plant........"
15.
Three page document, untitled.
First line reads, 'On the 4
morning of 2-28-90 Operations personnel at Plant....."
-- 16.
Six page docussnt, untitled.
First line reads, " Georgia Power l
has made an additional material false........."
4
-- 17.
One page document entitled, "Vogtle Procurement Policy fails to j
Apply 10 CFR Part 21 requirements.........*
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LARRY L. ROBINSON ORGANIZATION:
U. S. Nuclear Regulatory Consnission Office of Investigations Field Office, RII TITLE:
Investigator GRADE:
GG-13 i
BIRTHDATE:
June 11, 1942
)
EDUCATION:
B.
S., Engineering, U. S. Naval Academy, 1964 4
EXPERIENCE.
I 1983 - Present Investigator, Office of Investigations, RII
- Plans, organizes, and conducts complex and sensitive investi-4 4
gations of alleged / suspected violations of Federal Regulations, NRC regulations and/or federal criminal statutes which occur at, or are related to. NRC licensed facilities and activities.
1978 - 1983 Special Agent, Office of Investigations, Atlanta l
Regional Office of Inspector General, Veterans Admini-stration - Conducted complex and sensitive investiga-t tions of criminal fraud in connection with the numerous i
VA benefit programs, as well as other federal crimes and violations of VA regulations at the various VA Regional Offices and Hospitals.
Position involved
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assisting various U. S. Attorney's Offices in taking j
cases through prosecution and testifying before Federal
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Grand Juries.
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f 1976 - 1977 Technical Sales Representative, Medtronic, Inc., North Florida Region - Sold, and assisted in the surgical implantation of heart pacemakers.
Sold and instructed in the use of, the related ancillary and follow-up equipment that was necessary to monitor the cardiac pacemaker system performance.
Had a thorough working i
knowledge of the human cardiovascular system and the J
interpretation of electrocardiograms (EKGs).
Dealt primarily with Thoracic and Cardiovascular Surgeons and Cardiologists, and conducted in-service training of CCU/ICU and surgery room nurses.
1973 - 1976 Special Agent, Federal Bureau of Investigations (FBI),
Jacksonville, Florida Conducted investigations of alleged violations of the Federal Criminal Statutes over which the FBI has jurisdiction.
Administered i
e-
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-.r-----,
2 oaths, made arrests, and executed search warrants.
Coordinated with Assistant U. S. Attorneys in taking ca:tes through the federal prosecutive system.
Testi-fied before Federal Grand Juries and in criminal trial in U. S. District Court.
1968 - 1976 Development Engineer and Technical Sales Representative Firestone Tire and Rubber Company Designed and developed original equipment passenger tires and bus tires.
Solid steel wheels and rims to truck and trailer manufacturers, and coordinated with their engineering departments on the technical aspects of the wheel / rim / tire design.
1964 - 1968 U. S. Marine Corps - Served as an Artillery Officer in EEU Lai, Vietnam (1965-66), and as a Perimeter Security Officer and Operations Officer, Marine Barracks, U. S.
Fleet Activities, Yokosuka, Japan (1966-68).
Attained rank of Captain.
TRAINING:
Federal Law Enforcement Training Center, Glynco, GA Procurement and Contract Fraud Seminar - 1982 White Collar Crime Seminar - 1979 FBI Academy Basic Criminal Investigative Course - 1973 Special Weapons and Tactics In-Service - 1975 i
Department of Justice Government Fraud Investigation and Prosecutions Mini Course - 1981 Personal Development Two Quarters of Computer Science Courses, University of North Florida, Jacksonville, FL - 1977-78 NRC Technical Training Basic Design and Layout of BWR and PWR Power Plants, '
NRC Technical Training Center, Chattanooga, TN - 1984 Quality Assurance Construction Course (C-301), NRC Technical Training Center, SUPRA - 1984