ML20056H007
| ML20056H007 | |
| Person / Time | |
|---|---|
| Issue date: | 09/02/1993 |
| From: | Cordes J NRC OFFICE OF THE GENERAL COUNSEL (OGC) |
| To: | |
| References | |
| SECY-93-246, NUDOCS 9309080071 | |
| Download: ML20056H007 (14) | |
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ADJUDICATORY ISSUE (InfOrlTlalIOn)
September 2, 1993 SECY-93-246 FOR:
The Commission FROM:
John F.
Cordes, Jr.
Solicitor l
SUBJECT:
LITIGATION REPORT - 1993 - 13 National Treasury Employees Union v.
FLRA, No. 93-1422 (D.C.
Cir., NRC Motion to Intervene filed July 28, 1993)
In June the Federal Labor Relations Authority ruled that an NTEU proposal to negotiate wages with the NRC was not negotiable.
The FLRA found that the particular NTEU proposal in this case would interfere with the right of NRC management to determine the agency's budget.
In addition, however, the FLRA rejected the NRC's broad position that the Atomic Energy Act precludes wage bargaining altogether.
The NTEU filed an immediate petition for review in the D.C.
Circuit to challenge the FLRA decision against wage bargaining in this case.
The NRC filed a motion to intervene, which the court of appeals recently granted.
We are working closely with Department of Justice attorneys on this case.
Attachment:
Motion
Contact:
Marvin L.
Itzkowitz 504-1566 Atlas Corp.
v.
NRC, No. 92-1561 (D.C. Cir., Aug.
4, 1993)
Petitioner, the owner of a defunct milling operation, brought this case against the NRC last year to challenge an annual fee assessment.
After considerable negotiations under the D.C.
Circuit's mediation program, we reached a settlement with h'
NOTE:
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petitioner, which the Commission approved.
Petitioner made its first payment under the settlement in July, and filed a motion to withdraw its lawsuit.
The court of appeals granted the motion and dismissed the case.
Attachment:
D.C.
Circuit Order i
Contact:
I L. Michael Rafky 504-1974 Holden v.
NRC, Civ. No. 93-1628 (D.D.C.,
filed August 10, 1993) i Plaintiff in this Freedom of Information Act suit is pursuing a l
whistleblowing complaint against Gulf States Utilities before the Department of Labor.
He seeks access under FOIA to GSU's 62-page response to an NRC " chilling effects" letter.
GSU considers its
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response confidential and exempt from disclosure under FOIA exemption 4.
The NRC has not yet acted on the FOIA request,'but expects to do so shortly.
Plaintiff's lawsuit seeks a court order requiring immediate disclosure.
We are working with the.
United States Attorney's office in this case.
t Attachment Complaint
Contact:
Daryl M.
Shapiro
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_ IN THE UNITED STATES COURT OF APPEALS FOR THE DISTRICT OF COLUMBIA CIRCUIT NATIONAL TREASURY EMPLOYEES UNION
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Petitioner,
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No. 93-1422 v.
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FEDERAL LABOR RELATIONS AUTHORITY,
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Respondent.
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MOTION FOR LEAVE TO INTERVENE i
Pursuant to Fed.
R. App.
P.
15, the United States Nuclear Regulatory Commission ("NRC") respectfully moves for leave to intervene in support of the result reached by respondent Federal Labor Relations Authority ("FLRA") in this matter.
The petition for review was filed on July 1, 1993, and this motion is filed within the 30-day period specified by Fed. R. App.
P. 15(d).
Counsel for petitioner and respondent do not oppose this motion.
In this case, the FLRA held nonnegotiable a proposal by the National Treasury Employees Union ("NTEU") to require the NRC to bargain over the salary-of certain agency employees.
In its decision, the FLRA, among other things, disagreed with the Fourth Circuit's opinion in Euclear Regulatorv Comm'n v. FLRA, 879 F.2d 1225 (4th Cir. 1989), vacated and remanded on other arounds, 110 S. Ct. 2579, 2580 (1990), and concluded that wage bargaining was not precluded by section 161(d) of the Atomic Energy Act, which provides that the NRC may fix the compensation of its employees t
without regard to the civil service laws "to the extent that the Commission deems such action necessary to the discharge of its responsibilities."
42 L.S.C. 2201(d).
See National Treasurv
i Erolo'ees Union and U.S. E_uclear Regulatory Commission, 47 FLRA No. 95, slip op. at 12-16.
The FLRA went on to find, however, that the NTEU's proposal would interfere with the right of agency i
nanagement under the federal labor relations statute to determine the agency's budget, see 5 U.S.C.
7106 (a) (1), concluding that the NTEU proposal " entails an increase in costs that is significant and unavoidable and is not offset by conpensating benefits that are of a tangible, monetary nature."
Id. at 19.
The NTEU's petition for review evidently challenges the FLRA's determination that the union's proposal is nonnegotiable.
This case raises issues of considerable importance to the NRC -- the agency respondent that appeared before the FLRA -- as well as to government agencies in general.
Intervention is appropriate to ensure that the interests of the~NRC and other i
agencies are fully represented in this matter.
For the foregoing reasons, the NRC respectfully moves for leave to intervene in this proceeding.
Respectfully submitted, r
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4 WILLIAM KANTER (202) 514-4515 L
N JA M.
LEWIS (20 514-5090 Attorneys Civil Division, Appellate Staff U.S.
Department of Justice Room 7400C 9th & Pennsylvania Ave., N.W.
Washington, D.C.
20530 DATE: July M, 1993
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i CERTIFICATE OF SERVICE I hereby certify that on this 23dkday of July 1993, I
served copies of the foregoing Motion For leave To Int vene by U.S. mail (first-class, postage prepaid) upon the following:
David M. Smith Solicitor Federal Labor Relations Authority 607 14th Street, N.W.
i Suite 330 I
Washington, D.C.
20424-0001 Gregory O'Duden General Counsel National Treasury Employees Union 901 E Street, N.W.
Suite 600 Washington, D.C.
20004
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ATTACHMENT -
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Atlas Corp. v.
NRC, No. 92-1561 (D.C. Cir., Aug.
4, 1993)
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Elnittb States Couct of 9ppeals Fon THE DISTRICT OF COLUMBI, CIRCulT No. 92-1561 September Term,1992 Atlas Corporation, Petitioner, v.
Nuclear Regulatory Commission and United States C0urt Of Appeals United States of America, For the Distnct of Cob mhia Circuit i
Respondents.
fil[D AUG 0 4 1993 RON GARVlN 0RDER CLERK Upon consideration of petitioner's motion to dismiss, it is ORDERED that the motion is granted and this case is hereby dismissed.
The Clerk is directed to transmit a certified copy of this order to respondents in lieu of a formal mandate.
FOR THE COURT:
j RON GARVIN t}/LL h./T By:
Cheri Carter Deputy Clerk i
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Holden v.
NRC, Civ. No. 93-1628-(D.D.C., filed August 10, 1993) j 1
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IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA MICHAEL W. HOLDEN,
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c/o The Old Place
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Christmas Farn
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Highway 45 North
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Marian, Mississippi 39242
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Plaintiff
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v.
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Civil Action No. 95 -/&A8
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Ohnnn, J. NrlJ UNITED STATES NUCLEAR
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REGULATORY COMMISSION
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Washington, D.C.
20555
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Defendant
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f COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF 1.
This is an action pursuant to the Freedon of Information Act
("FOIA"),
5 U.S.C.
Sec.
- 552, as
- arended, to order the i
production of agency records which are described nore fully below.
2.
This Court has jurisdiction over this action pursuant to i
5 U.S.C. Sec. 552 (a) (4) (B).
3.
Plaintiff, Michael W. Holden, is a citizen of the United States, and is the requester of the withheld records. "
4.
Defendant Nuclear Regulatory Connission ("NRC") is an j
i agency of the United States, and has possession of and control over the records that Plaintiff seeks.
S.
By letter dated September 30, 1992, (FOIA Request No.92-493)
Mark
- Siurek, counsel for Michael W.
- Holden, requested documents contained in any and all investigative files and/or other documents generated by the NRC in connection with Hplden v.
- GSU, DOL Case No. 92-ERA-44 and any and/or all documents which refer or
relate in any way to Holden and/or the subject natter of the DOL i
case.
(Attachment 1) i 6.
On October 28, 1992, Donnie H. Grinsley, Director of the Division of Freedon of Information and Publications Services of the NRC responded that " Records subject to the request naintained in l
the Office of Investigations' file relate to an ongoing investigation and are being withheld in their entirety pursuant to Exemption 7(A)."
(Attachment 2) 7.
By letter dated February 11, 1993, (Attachnent 3) Mr.
Grinsley provided a final response to FOIA 92-493 by releasing additional records which included a July 31,1992 " chilling ef fect" letter fren James L. Milhcan, Administrator of Region IV of the NRC to Jares C.
- Deddens, Senior Vice President of Gulf States l
Utilities, which requested GSU to respond to an NRC request for GSU to show cause why no chilling effect existed as a result of the treatment of Michael Holden by GSU.
8.
On March 1, 1993, Billie Garde, counsel for Mr. Holden, wrote to Mr. Grinsley of the NRC questioning the adequacy of the a
NRC's response because it did not identify or address in any way GSU's 62-page response to the NRC's July 31,1992 " chilling effect" i
i letter.
Ms. Garde's letter also addressed other major processing problens encountered with the FOIA request. Ms. Garde's letter was treated as an appeal and assigned FOIA No. 93-A-2.
(Attachment 4) 9.
Again en April 7, 1993, Ms. Garde wrote to Mr. Grimsley of the NRC complaining about the lack of any response to her March j
1, 1993 letter.
(Attachment 5) 2
J 10.
On May 19,1993, under cover of FOIA 93-276, Mr. Grimsley of the URC released additional dccunents responsive to the initial FOIA request, but the response still did not refer in any way to GSU's 62-page response to the NRC's July 31,1992 " chilling effect" l
letter.
(Attachment 6) 11.
On May 28, 1993, Ms. Garde wrote advising that because she had not received any formal response to her letters of March 1 and April 7,
1993, and specific documents addressed in those letters still had not been released, she would file suit by June 3, 1993.
(Attachment 7) 12.
On June 4, 1993, Ms. Garde was informed by telephone that the NRC's FOIA office would be responding to her requests during the week of June 7, 1993.
13.
By letter dated June 9,
1993, Hugh L.
- Thompson, Jr.,
i Deputy Executive Director for Nuclear i:aterials Safety, Safeguards and Operations Support of the NRC provided a final response to Ms.
j Garde's March 1, 1993 appeal (FOIA-93-A-2) of FOIA 92-493, which j
specifically listed as a document being withheld pursuant to Exemptien 7 (A) the September 29, 1992 62-page response of GSU to the NRC's July 31, 1992 " chilling effect" letter.
(Attachment 8) i 14.
On June 14, 1993, Ms. Garde wrote to James Taylor, l
r Executive Director of Operations of the NRC in an attenpt to persuade him to release the September 29, 1992 62-page response of GSU to the NRC's July 31, 1992 " chilling effect" letter without the need for filing suit.
(Attachnent 9)
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On June 21, 1993, Ms. Garde wrote to Mr. Thenpson in a final attempt to convince the NRC to release the requested 62-page t
docunent.
(Attachrent 10) 16.
By letter dated June 29, 1993, Mr. Grinsley responded to Ms. Garde's letters of June 14 and 21, 1993, informing her of the NRC's determination that "exenption 7 (A) no longer applies to this record."
In that letter Mr.
Grinsley explained further that because the Septe:.ber 29, 1992 62-page response of GSU was submitted under request for confidential treatment, "the agency nust afford GSU an opportunity to object to disclosure of the requested material...."
(Attachrent 11) 17.
More than ten ncnths have elapsed since Plaintiff's initial FOIA request was nade, and since the NRC FOIA office first clained that Exenption 7(a) applied to the September 29, 1992 GSU 62-page response letter.
More than a nonth has elapsed since the NRC FOIA of fice deternined that Exenption 7 (A) no longer applies to the withheld document.
Plaintiff has been infornally advised by the NRC FOIA office that Plaintiff's request is "under review" and
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the NRC FOIA office has not indicated when and if they will release the requested records.
18.
Plaintiff has a statutory right to the records that he seeks, and there is no legal basis for Defendant's refusal to l
release the records to hin.
hTEREFORE, Plaintiff prayt: that this court:
(1)
Declare that Defendant's refusal to disclose the records requested by hin is unlawful; i
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e s.
(2)
Order Defendant to =ake the requested records available to Plaintiff; (3)
Award Plaintiff his costs and reasonable attorneys' i
fees in this action; and i
i (4)
Grant Plaintiff such other and further relief as the court nay deem just and proper.
Respectfully submitted,
)
r KLIMASKI, MILLER & SMITH, P.C.
1899 L Street, N.W., Suite 1250 Washington, D.C.
20036 (202) 296-5600 i
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= YMts -
Jord'an B.
Yeager l
5 D.C.
Bar No. 437156 l
Counsel for Plaintiff Of Counsel:
Billie Pirner Garde Member of Wisconsin and Texas Bars j
Hardy & Johns 500 Two Houst;n Center Houston, TX 77010 (713) 222-0381 l
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