ML20203K067
| ML20203K067 | |
| Person / Time | |
|---|---|
| Site: | Crane  |
| Issue date: | 08/04/1986 |
| From: | Mcbride M AFFILIATION NOT ASSIGNED, LEBOEUF, LAMB, LEIBY & MACRAE |
| To: | Atomic Safety and Licensing Board Panel |
| Shared Package | |
| ML20203K070 | List: |
| References | |
| CON-#386-203 LRP, NUDOCS 8608060145 | |
| Download: ML20203K067 (5) | |
Text
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~*'~4;gy UNITED STATES OF AMERICA l
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BEFORE THE PRESIDING BOARD i}s
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In the Matter of
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Docket No. LRP INQUIRY INTO THREE MILE ISLAND
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UNIT 2 LEAK RATE DATA FALSIFICATION
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MOTION TO MODIFY SUBPOENA ISSUED TO MARTIN V. COOPER On or about July 25, 1986, Mr. Martin V. Cooper, a non-party to this proceeding, received a subpoena by certified or registered mail' compelling his attendance on or about September 22, 1986 in Bethesda, Maryland, to testify in the above-captioned matter.
Mr. Cooper, by his counsel, hereby moves, pursuant to 10 C.F.R. S2.720 (f), to modify the subpoena to require his appearance at a location near his home (Oceanside, California, north of San Diego) or near his place of employment (near San Clemente, California).
Under S2.720 (f), a subpoena may be modified if it is unreasonable.
Mr. Cooper respectfully submits that the Commission lacks the authority to compel him to travel to the Washington, D.C. area and that, in any event, it would be unreasonable to make him do so.
8608060145 860804 DR ADOCK 05000320 PDR
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1.
THE COMMISSION MAY NOT COMPEL THE APPEARANCE IN THE WASHINGTON, D.C. AREA OF A PERSON RESIDING BEYOND THE JURISDICTION OF THE UNITED STATES DISTRICT COURTS FOR THE DISTRICTS OF MARYLAND OR THE DISTRICT OF COLUMBIA.
The Commission has statutory authority to issue subpoenas returnable at any place in the United States and to make nationwide service of process.
42 U.S.C. S2201(c) (1976).
However, its authority does not give it power to compel the presence of a witness whose subpoena is made returnable beyond the limits of the federal judicial district in which the witness is found, resides, or transacts business.
42 U.S.C.
S2281 (1976).
We are unaware of any decision allowing any federal agency to require a person to travel beyond the same jurisdictional limitations imposed on a Federal District Court (see, e.g.,
Fed. R. Civ. P. 45).
Because a Federal District Court could not compel Mr. Cooper to travel to Maryland from California (except for a criminal trial or grand jury appearance), it would be unreasonable for the Commission to assume that it possesses such power.
The very limited power of the Federal District Court to compel such an appearance is a necessary corollary of the Sixth Amendment provisions for confrontation of witnesses and compulsory process, and the Fifth Amendment provision for grand juries.
That power should not be assumed by federal agencies outside those limited contexts...
The subpoena issued by the Presiding Board purports to be returnable in Bethesda, Maryland.
Mr. Cooper resides in Oceanside, California and works near San Clemente, California.
Affidavit of Martin V. Cooper.
Mr. Cooper is subject only to the jurisdiction of the United States District for the Southern District of California.
Because the Commission cannot compel his 4
appearance in Bethesda as demanded in the subpoena through enforcement actions in the United States District Courts for the District of Maryland or of the District of Columbia, the Board should modify this subpoena on grounds of unreasonableness, and require Mr. Cooper's appearance only in Southern California.
II.
IT WOULD BE UNREASONABLE TO COMPEL MR. COOPER TO APPEAR IN THE WASHINGTON, D.C. AREA.
In any event, it is unreasonable to require Mr. Cooper to travel to Bethesda.
He is a licensed operator and Shift Supervisor at the San Onofre Nuclear Generating Station, Units 2 and 3.
If required to testify in Bethesda, Mr. Cooper will be away from his place of employment for at least three days (including one day for travel in each direction).
Indeed, the subpoena indicates that, although required to appear on September 22, 1986, Mr. Cooper may not testify that day, or at any time certain.
If he were the sole witness at a hearing in California, that problem would be avoided.
It would be far more appropriate to interview him in California, with minimal disruption of his present employment and the safety of the plant where he now,
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works.
- See, e.g., CLI-83-24, General Public Utilities Corp.
(Three Mile Island Nuclear Station, Unit No. 2), 18 N.R.C.
- 315, 325-26 (1984) (same holding with regard to TMI-2 employees, including Mr. Cooper).
As Mr. Cooper's Affidavit demonstrates, he cannot afford the loss of income that would be caused by traveling to Bethesda to testify, and he cannot afford to pay for his travel and related expenses in advance.
(Unlike a civil sub'poena issued by counsel for a private party, the Government is not required to pay for travel and attendance in advance.
Fed.
R. Civ. P.
45 (c).
However, when it does not do so, such a subpoena is even more burdensome than otherwise, for individuals such as Mr. Cooper.)
In convening this proceeding, the Commission stated:
"The hearing will be held in the Washington D.C. area, although the Presiding Board may hold portions of the hearing in other places consistent with the convenience of the parties or their representatives and the public interest."
CLI-85-18, Inquiry Into Three Mile Island Unit 2 Leak Rate Data Falsification, 22 N.R.C.
877, 882 (1985).
This standard is clearly met in Mr. Cooper's case, because he is not a party, he is a licensed operator, and he would suffer undue hardship if he l
were to travel to the Washington, D.C. area to testify.
Because of the legislative-type format of the hearings, no party should be significantly prejudiced by holding a small portion of the
i hearing elsewhere, particularly because questions to the witnesses could be submitted in advance.
In any event, the Board called Mr. Cooper without any party suggesting him as a witness.
Therefore, no party could argue that his or her case would be weakened by his or her absence during the testimony of a Board-suggested witness.
Conclusion For the foregoing reasons, Mr. Cooper's subpoena should be modified to require him to testify only near his home or place of employment, at a time convenient to the proceeding and not disruptive of Mr. Cooper's employment.
Respectfully submitted, LeBOEUF, LAMB, LEIBY & MacRAE By WLs/Y&blh Partner'~
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Of Counsel:
1333 New Hampshire Avenue, N.W.
Harry H. Voigt Suite 1100 Molly S. Boast Washington, D.C.
20036 James W. Moeller (202) 457-7500 Marlene L. Stein Smith B. Gephart KILLIAN & GEPHART Jane G. Penny 216-218 Pine Street Terrence G. McGowan Harrisburg, PA 17108 (717) 232-1851 Attorneys for Numerous 1978-79 Employees of Metropolitan Edison Company August 4, 1986