ML20214L664
| ML20214L664 | |
| Person / Time | |
|---|---|
| Issue date: | 04/02/1986 |
| From: | Asselstine J NRC COMMISSION (OCM) |
| To: | Plaine H NRC OFFICE OF THE GENERAL COUNSEL (OGC) |
| Shared Package | |
| ML20214L519 | List: |
| References | |
| FOIA-86-470 NUDOCS 8609100320 | |
| Download: ML20214L664 (5) | |
Text
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/ %,,, UNITED STATES o NUCLEAR REGULATORY COMMISSION
{ ,1 WASHINGTON, D.C. 20555
%,...../
OFFICE OF THE COMMISSIONER April 2, 1986 MEMORANDUM T0: Herzel H.E. Plaine General Counsel FROM: James K. Asselstine '
SUBJECT:
INSIDERSAFEGUARDSR[LE(SECY85-381)
I would like the views of your office on whether a backfit analysis is required for the insider rule, cc: Chairman Palladino Commissioner Roberts Commissioner Bernthal Commissioner Zech OPE ED0 SECY i
\
8609100320 860904 -
ROBINSO86-470 PDR- i
7 KING & SPALDING 173o PENNSYLVANIA AVENUE, N.W.
WASIllNGTON, D. C. 20006-4706
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2500 TRUST'~CO5PANY TOWEN ATLANTA, GEORGIA 30303 TELECOPIER: 202/ 737-5714 404/572-4600 February 26, 1986 Mr. Joe F. Colvin Director, Industry & Government Relations Institute of Nuclear Power Operations N; .
1100 Circle 75 Parkway 'N '
Suite 1500 -
Atlanta, Georgia 30339 Re Appeal Procedure for s Access Authorization Procram
Dear Mr. Colvin:
You asked for our legal opinion on whether the Nuclear Regulatory Commission (the " Commission") should require that each safeguards contingency plan contain an appeal procedure to permit an employee to challenge the denial or revocation of his or her access authorization. In our opinion, an appeal procedure is not required by the Due Process Clause, U.S. Const. amend. V. In addition, an appeal procedure required by the Commission would be an unwise federal intrusion into the state laws that traditionally have governed the employment relationship. For these reasons, our opinion is that the Commission should not require that each safeguards contingency plan contain an appeal procedure.
1/ . deprived of life, liberty, or "No person shall be . .
property, without due process of law."
)
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a Mr. Joe F. Colvin February 26, 1986 Page 2 The Due Process Clause requires that notice and an op-3 portunity to be heard be granted before thg covernment deprives a person of liberty or property. The issue here is whether a licensee's decision to deny or revoke access authorization pursu-ant to its safeguards contingency plan is private action or government action. Although the safeguards contingency plan is
- part of the Commission's licensing process, this is not sufficient to convert the licensee's action into government action.
There are numerous relevant court decisions, but in our view the most persuasive is Myron v. Consolidated Rail Coro., 752 I F.2d 50 (2d Cir. 1985). There a Conrail employee was discharged for "various acts of disloyalty." The employee sued, alleging i
j that Conrail's action in discharging him violated his Due Process rights. The Court rejected this claim after examining the connections between the federal government and Conrail:
j '
Conrail's creation was mandated by act of Congress; Conrail relies heavily on federal
. funds; the federal government not only regulates Conrail extensively but also monitors its financial performance . . . The federal covernment . . . owns 85% of Conrail's oreferred stock; six of the thirteen members of Conrail's board of directors represent the federal covernment . . . and finally, in 1981
-Congress passed an act directing the sale of Conrail's properties and operations, irrespec-tive of the wishes of Conrail management.
1
Mr. Joe F. Colvin
- February 26, 1986 Page 3 752 F.2d at 54 (emphasis added; citations omitted) . Despite the interdependence of Conrail and the government, the Court ruled that Conrail's personnel decisions were not federal action for purposes of the Due Process Clause.
No private licensee has the degree of interdependence with the Commission that Conrail has with thc government. Thus, our conclusion is that a Court faced with this issue would rule that the Due Process Clause does not apply to a personnel action by a licensee, even though that action is taken pursuant to the safeguards contingency plan.
For the Commission to require an appeal procedure is also unwise from the standpoint of the proper relationship of state and federal law. See U.S. Const. amend. X ("The powers not delegated to the United States by the Constitution . . . are reserved to the States respectively, or to the people"); cf. -
Silkwood v. Kerr-McGee Coro., 104 S.Ct. 615, 625 (1984) (recogniz-ing the importance of " traditional state tort law").
Obviously, the Commission where necessary may impose federal rules on the private employment ' relationship. Federal law has long governed some aspects of private employment, such as collective bargaining and discrimination on the basis of race or sex.
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i Mr. Joe F. Colvin February 26, 1986 Page 4 Nonetheless, private employment has traditionally been a matter of state law, sgg Stokes v. Bechtel North American Power Corp., 614 F. Supp. 732, 742 (N.D. Cal. 1985), and different states have chosen to provide employees with very different remedies. See Note, Protectino Employees At Will From Wronoful Discharoe: The Public Policy Exception, 96 Harvard L. Rev. 1931 (1983) (reviewing the development of state law on the right of employees to challenge the grounds for their discharges). An ap-peal procedure, imposed by the Commission would tend to interfere with this rapidly changing area of state law.
In conclusion, our legal opinion is that an appeal procedure required by the Commission is not necessary for purposes of the Due Process Clause and is also unwise as a matter of the proper relationship of state and federal law.
If you have any question about this opinion, please telephone Mr. Ridley or me.
Sincerely, James D. Miller
/md cc: Clarence H. Ridley, Esq.
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