ML20212K391

Requests Denial of Util Requests for Subpoenas Re Dept of Labor Employees & File Matl.Further Accommodation of Util Would Interfere W/Internal Regulation & Business Operation. Served on 870306

ML20212K391
Person / Time
Site:	Three Mile Island
Issue date:	03/05/1987
From:	Geoffrey Coleman LABOR, DEPT. OF
To:	Smith I Atomic Safety and Licensing Board Panel
References
CON-#187-2707 CIV-PEN, EA-84-137, NUDOCS 8703090294
Download: ML20212K391 (4)

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' U.S. Department of Labor Officeof thesoircitor .-

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Honorable Ivan W. Smith

~ Administrative Law Judge Nuclear ~ Regulatory Commission SERVED MAR 06 Igg Washington, D.C. 20555 Re: GPU Nuclear Corporation's Motion for Issuance of Subpoenas, In the Matter of GPU Nuclear Corporation, ,.

Docket No. 50-320, EA 84-137

Dear Judge:

Smith:

On February ~4, 1987, GPU Nuclear Corporation ("GPUN")

moved for the issuance of a subpoena duces tecum and a

-subpoena for deposition.to be served, respectively, on the Administrator of the Wage and Hour Division, United States Department of. Labor _(" DOL").and on David Feinberg, i a former DOL compliance officer. The subpoenas call for the production of the entire file compiled by the Wage i and Hour Division in the course of its investigation of

, the complaint filed by Mr. Richard Parks alleging violation of the employee protection provisions of section 210 of the Energy Reorganization Act of 1974, 42 U.S.C. 5851.

In addition, GPUN seeks to depose Mr. Feinberg, who i conducted the DOL investigation of Parks' complaint but l has since retired from government service.

t In support of its subpoena requests, GPUN argued that it-needed additional discovery from DOL because it had not received a full, unredacted copy of the compliance officer's

-report, it had not received the statement of one of the witnesses interviewed by DOL, and it was uncertain of whether there were additional witness statements in the file and of the content of all the exhibits.

Prior to GPUN's subpoena requests, DOL sought from all witnesses (3) interviewed in confidence by DOL permission to release their statements to GPUN. Two of the witnesses readily agreed to the release of their statements, and DOL promptly released these statements to GPUN. Permission 8703090294 870305 PDR ADOCK 05000320 Q PDR ,

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l to release the. third and final. witness statement was not

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indicated to DOL until after GPUN's requests for subpoenas -

- were. filed. Accordingly, a full, unredacted copy of the compliance officer's report and all witness statements

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have now been released.to GPUN, together with all other documents from the DOL file which were furnished to the Nuclear Regulatory Commission (NRC). .Moreover, GPUN's counsel has been.. apprised of the content.of all the exhibits

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in the file and has been assured that he either has in his possession or has access to all exhibits contained in the DOL investigative file.

Labor Department regulations set forth at 29 C.F.R.

SS2.20-2.25 prohibit DOL employees (including former employees) from furnishing any information in response to a subpoena without the authorization of the Deputy Solicitor of Lab'or. Specifically, Section 2.22 provides:

.. . No employee or former employee of the

Department of Labor shall.in response to a demand of a court or other authority, produce any material contained in the files of the Department, or disclose any'information relat-ing toLaaterial contained in the files of-the Department, or disclose any information or produce any material acquired as part of the performance of his official duties or because of his official status without approval of the appropriate Deputy Solicitor of Labor.

i DOL promulgated this regulation in 1981 to establish _

' a uniform policy within DOL for responding to the growing

' numbers of subpoenas being served on DOL employees. See 46 Fed. Reg. 49542 (October 6,1981) .

The Supreme Court has specifically recognized the authority i of agency heads to restrict testimony of their subordinates and to withdraw from them the power to release-public '

documents through this type of regulation. See United States ex rel. Touhy v. Ragen, 340 U.S. 462 (1951). Moreover, the validity of DOL's regulations and the Deputy Solicitor's application of them have been upheld by various district courts. See Hotel Employees-Hotel Ass'n Pension Fund v.

Timperio, 622 F.Supp. 606 (S.D. Fla. 1985); Smith v. C.R.C.

Builders Co., Inc., 626 F.Supp. 12 (D. Colo. 1983); Reynolds Metals Co. v. Crowther, 572 F.Supp. 288 (D. Mass. 1982).

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a-t 3-In. upholding DOL's regulations, the courts have recognized that "the policy.behind prohibition of testimony is to conserve governmental resources where the United-States is not.a party to a suit, and to minimize governmental involvement in controversial matters unrelated to official

- business." Hotel Employees, supra, 622 F.Supp. at 607, quoting Reynolds Metals, supra, 572 F.Supp..at 290.- Thus, absent the approval of the appropriate Deputy Solicitor, the DOL. employees sought to be subpoenaed by GPUN have no  !

power to comply with the subpoenas requested and there- l P fore cannot be compelled to comply or punished for j their refusal to. comply. C.R.C. Builders, supra,'626 F.Supp. at 14.

I In order to have' DOL employees testify or produce informa-tion, GPUN would have to seek approval from the.r.ppropriate Deputy Solicitor. See 29 C.F.R. 32.21. The DOL regulations are prohibitive and employees will be allowed to testify

or produce information only in exceptional circumstances.

Otherwise, if DOL employees were routinely permitted to testify in private suits unrelated to DOL official business, a significant loss of manpower hours and the disruption

of agency operation would inevitably ensue.- See Reynolds Metals Co., supra, 572.F.Supp. at 290.

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' The circumstances of this case clearly do not warrant approval by the Deputy Solicitor. As indicated above,

, the Department has already generously accommodated the l - interests of GPUN by releasing all witness statements and a full, unredacted copy of the compliance officer's report. Earlier, the. Department had forwarded file material requested by GPUN pursuant to the Freedom of Information Act.- Thus, at this time all factual material in the file has been released, or, as counsel for GPUN has been advised, is available for release upon request. The remaining materials in the file are either privileged inter-agency and intra-agency correspondence or of such a routine and trivial nature, they could not be subject to a genuine and significant interest. To accommodate GPUN any further in its " fishing expedition" would unduly interfere with the Department's internal regulation and operation of its own business. See Reynolds Metals Co.,

- supg, 572 F.Supp at 290.

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4-For the foregoing reasons, we respectfully request that GPUN's requests-for. subpoenas as-they relate to DOL employees and file material be denied.

Sincerely, Gail V. Coleman Deputy Associate Solicitor for Fair Labor Standards cc:il. Patrick Hickey, Esq.

George E. Johnson, Esq.

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