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Memorandum of Points & Authorities in Support of Motion to Quash Subpoena.* Supports Dept of Labor (DOL) 870601 Motion to Quash Licensee 870601 Subpoena Served on DOL & D Feinberg.Affidavits & Certificate of Svc Encl
	ML20214W850
Person / Time
Site:	Crane
Issue date:	06/09/1987
From:	Newman F; LABOR, DEPT. OF
To:	; Atomic Safety and Licensing Board Panel
Shared Package
ML20214W768	List: ML20214W766; ML20214W850;
References
	CIV-PEN, EA-84-137, NUDOCS 8706160212
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UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION BEFORE IVAN W. SMITH ADMINISTRATIVE LAW JUDGE In the Matter of

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GPU NUCLEAR CORPORATION

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No.50-320

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EA 84-137 Three Mile Island Nuclear

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Station, Unit No. 2

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i MEMORANDIM OF POINTS AND AUTHORITIES IN SUPPORT OF MOTION TO QUASH SUBPOENA INTRODUCTION i

On May 8,1987, a Prehearing Conference was held in the instant case before Administrative Law Judge (ALJ) Ivan W. Smith to discuss, inter alia, the subpoena for deposition of Mr. David Feinberg, a retired former Compliance Officer of the Wage and 3-Hour Division, United States Department of Labor (Depart-ment or DOL), requested by GPU Nuclear Corporation (GPUN).

Although DOL is not a party to these proceedings it was permitted to appear at the Prehearing Conference in order to discuss and explain its position regarding i

the appropriateness of allowing the deposition of Mr. Feinberg, i

in view of the regulations set forth at 29 C.F.R. SS2.20

- 2.25 which prohibit any employee or former employee l

l of DOL f rom producing or disclosing any information in connection with a proceeding to which DOL is not a party without approval of the Deputy Solicitor of I

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Labor.

0706160212 870611 "

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2-Following the above-referenced Prehearing Conference, on the same -date, the ALJ issued the requested subpoena and an order directing the Nuclear Regulatory Commission (NRC) Staff to invoke and exercise its rights under the Memorandum of Understanding between the NRC and DOL, to obtain and make available Mr. Feinberg for deposition by GPUN.1/

Pursuant to this order the NRC,.

by letter dated May 14, 1987, requested DOL to make Mr. Feinberg available for deposition.

In addition, NRC 4

staff met with DOL staff and urged that DOL agree to permit Mr. Feinberg to testify.

On June 1,1987, GPUN duly served the subpoena upon the Department and Mr. Feinberg.

After careful deliberation and consultation between the Wage and Hour Division and the Office i

of the Solicitor, pursuant to the regulations set forth at 29 C.F.R. S$2.20-2.25, the Department, on i

behalf of Mr. Feinberg, moves to quash the subpoena.

o This decision was made upon the basis that all f actual 1/

In addition, GPUN requested a subpoena duces tecum calling for the production of the entire investigation I

file compiled by DOL, which was also issued on May 8, i

1987, and subsequently served.

However, the complete f actual record has already been disclosed to GPUN and there are no other f actual records, documents or notes beyond those already disclosed (see affidavits of David Feinberg and Raymond G. Cordelli incorporated hereto as Exhibits A and B, respec tively ), except for a copy of Mr. Parks' Prepared Statement given to a Congressional Subcommittee on April 26, 1983 and some newspaper articles regarding Mr. Parks' whistle-blower complaint, all of which will be made available upon request.

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e 3-documents and information have been disclosed and made available to GPUN and that Mr. Feinberg has repre-sented,- af ter recently reviewing the factual record, that he possesses no further information beyond that contained in the f actual documents already, disclosed nor does he possess any personal notes or records pertain-ing to his investigation, and for the reasons more specifically discussed herein.

As discussed below, the cot rts have long recognized that government employees may not routinely be compelled to testify or produce records in litigation to which the employee's agency is not a party.

Pursuant to this authority, the Department has issued regulations which govern the procedure by which its employees may testify or produce records under such circumstances.

See 29 C.F.R. SS2.20-2.25 (1985).

Under these regulations, Mr. Feinberg may not testify or disclose official information in a proceeding to which the Department is not a party without authorization f rom the Deputy Solicitor of Labor.

The Deputy Solicitor, following the Department's policy and regulations and for the reasons discussed herein, has not authorized Mr. Feinberg to produce any further information or to testify at deposition because GPUN has not demonstrated special circumstances which, in the judgment of the Deputy

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4-Solicitor, would warrant the lif ting of the regulatory prohibition against employee testimony and production of documents in the instant case.

Therefore, Mr. Feinberg lacks authority to comply with - the subpoena and the subpoena should be quashed.

STATEMENT OF THE CASE In March 1983, Mr. Parks filed a complaint with the Department alleging that his employer, Bechtel.

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Corporation, had unlawfully discriminated against him pursuant to the employee protection provisions of section 210 of the Energy Reorganization Act of 1

1974 (ERA), 42 U.S.C. S5851.

Mr. Feinberg investigated the complaint and prepared a report documenting the l

existence of violations committed by Bechtel against Mr. Parks.

Accordingly, on May 12, 1983, Bechtel was advised of the Department's findings by letter from Michael J. Corcoran, Area Director, Wage and Hour Division, Wilkes-Barre, Pennsylvania.

Mr. Parks and l

Bechtel thereaf ter reached settlement on the complaint and thus the matter never proceeded to a formal administrative j

hearing within the Department.

In a separate action the NRC conducted its l

own investigation into Mr. Parks' allegations and those of several other employees and based on its 1.

independent findings issued an order imposing a civil l

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5-money penalty on GPUN, the licensee at Three Mile Island.

GPUN contested this order and requested a hearing before the NRC, thus giving rise to the instant action to which the Department is not a party.

In connection with this action, the NRC

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asked DOL for permission to release to GPUN information it had obtained from the Department concerning DOL's 4

investigation of Parks' ERA whistleblower complaint against Bechtel.

It is normal' DOL policy to consider a whistleblower investigation file administratively closed once the letter containing the investigation findings is sent by the Area Director.

When a request j

for documents from the file is received, under the Freedom of Information Act or otherwise, DOL generally furnishes the f actual portions of the nhrrative, af ter deletion of the opinions, conclusions, and recommenda-1 tions of the compliance officer, and all supporting documents except interview statements, which are taken in confidence.

In this case, in the spirit of cooperation with the NRC, DOL took the extraordinary measure of seeking and obtaining the release of the persons whose statements were taken in confidence, resulting in the disclosure of all of the interview statements i

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6-as well as the entire narrative report.

Thus the Department has. released the entire f actual record compiled in its investigation of Parks' complaint.

Despite assurance that it had received all f actual information in the possession of DOL, GPUN petitioned the NRC administrative law judge for the issuance of subpoenas for the deposition of Mr. Feinberg 4

and the production of the investigation file by the Administrator.

Both the Department and the NRO counsel staff opposed the issuance of the subpoenas, and the parties to the instant action, as well as the Department, presented arguments on the subpoena question at a prehearing conference before the ALJ on May 8,1987.

At the above-referenced prehearing conference, the Department's representative explained that the Department's further involvement in this case would be inappropriate because it had already provided to l

GPUN all factual and substantive information contained in the investigation file and because Mr. Feinberg, j

who conducted the investigation four years ago and who has been retired f rom government service for two years, has no personal knowledge, records or notes i

of the case.

Hearing Transcript at 32-34.

GPUN responded I

that the reason for the subpoenas was to ascertain 4

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The remaining materials in the file which were c

not disclosed are of a routine and trivial nature, j

l such as routing transmittals and housekeeping documents, that could not be subject to a genuine and significant I

interest.

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7-whether there exists additional information or documents possessed by Mr. Feinbe.rg or the Department beyond that contained ~in the disclosed record.

Hearing Transcript at pp.'33, 35-36.

The ALJ indicated dissatisf action with the " unlimited reach" of the subpoenas, as draf ted by GPUN (Hearing Transcript at 47), but believed.that subpoenas would be appropriate -in this case to discover additional information or " leads to further f actual information."

Hearing Transcript at 34, 40.

Following the conference, the ALJ issued the subpoenas requested by GPUN,, which, as previously stated, were subsequently served on' the representative of the Administrator and Mr. Feinberg.

c Upon notification of the subpoenas, the Deputy Solicitor informed Mr. Feinberg that he was prohibited f rom testifying or providing any information or documents in response to the subpoena.

See Exhibit C incorporated hereto.

In addition, Mr. Feinberg and the Director, Division of Fair Labor Standards Act Operations have submitted sworn affidavits to i

the effect that they possess no additional knowledge or information regarding Parks' complaint beyond that 1

which is contained in the f actual record already released 4

to GPUN, and that there are no additional factual records or documents beyond those already disclosed.

See i

Exhibits A and B incorporated hereto.

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ARGUMENT The ALJ Should Quash The Subpoena

. Bec'asse The Deputy Solicitor Properly Declined To Authorize The Subpoenaed Individual To Testify or Produc'e Additional Information.

' The Supreme Court and lower federal courts have recognized 'that the government's interest in efficient operations requires that agencies be given the discretion to prohibit agency enloyees from testify-ing or producing information in connection with proceedings to which the agency is not a party.

Moreover, the courts have repeatedly upheld the type 'of regulations

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at. issue in this case, which allow the Deputy Solicitor g

of Labor to prohibit employees and former employees l :q f rom testifying or producing information in proceedings jh

to which the Department is not a party.

In this case, N

the Department has properly invoked these regulations

- and, therefore, the subpoena should be quashed.

or In Boske v. Comingore, 177 U.S.

459 (1900),

the Supreme Court first addressed the validity of an agency regulation that reserved to a department head the decision whether to disclose official informa-tion.

At issue in Boske was a Department of Treasury regulation prohibiting subordinate officials from releasing internal revenue records, whether in answer L

to a subpoena or otherwise.

Boske, supra at 461.

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Pursuant to the regulations, only the Secretary of Treasury could furnish the records, even if " parties to a suit" demanded copies.

Id.

In sustaining this-regulation,.the Supreme Court explained:

Reasons of public policy may well have suggested the necessity, in the interest of the Government, of not allowing access to the records in the offices of collectors of internal revenue, except as might be directed by the Secretary of Treasury.

Besides, great' confusion might arise in the business of the Department if the Secretary allowed the use of records and papers to depend upon the discretion of subordi-nates In our opinion the Secretary, under the regulations as to the custody, use and preservation of the records, papers and property appertaining to the business of his Department, may take from a subordinate.

all dis-cretion as.to permitting the records in his custody to be used for any other purpose than the collection of the revenue, and reserve for his own determi-nation all matters of that character.

Id. at-469-470.

Fifty years later, in United States ex rel.

Touhy v. Ragen, 340 U.S.

462 (1951), the Supreme Court again focused upon the validity of a regulation reserving disclosure decisions to the head of an agency.

In Touhy, the Court upheld a Department of Justice rule very similar to the DOL regulation invoked in this case.

The Department of Justice rule required subordinate officials to obtain approval from the Attorney General before complying with any subpoena seeking disclosure l

of agency documents.

The Supreme Court held that the Attorney General could validly withdraw from his subordinates the power to release department papers under the general housekeeping statute, 5 U.S.C S22 (predecessor to the current housekeeping statute, 5 U.S.C. S301).

'auhy, supra at 467.

As the Court explained, "when one considers the variety of information contained in the files of any government department and the possibilities of harm from unrestricted disclosure in court, the usefulness, indeed the necessity, of centralizing determination as to whether subpoenas duces tecum will be willingly obeyed or challenged is obvious."

Id. at 468.

After the Supreme Court's decision in Touhy, a variety of federal departments and agencies promulgated similar regulations.

These regulations have been uniformly upheld by lower federal courts.

See, e.g.,

United States v. Bizzard, 674 F.2d 1382, 1387 (11th Cir.1982); United States Steel corp. v. Mattingly, 663 F.2d 68 (10th Cir.1980) ; Sounders v. Great Western Sugar Co., 396 F.2d 794, 795 (10th Cir.1969); Jackson

v. Allen Industries, 250 F.72 629, 630 (6th Cir.1958),

cert. denied, 356 U.S.

972

('. 9 5 8 ) ; Marcoux v. Mid-States Livestock, 66 FRD 573, 576-80 (W.D. Mo. 1975) ;

State of North Carolina v. Carr, 264 F.Supp. 75 (W. D.

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N.C. 1967), appeal dismissed as moot, 386 F.2d 129 (4th Cir. 1967).

In 1981, because of "an increasing number of su'upoenas" and "a lack of a uniform Departmental policy for _ responding to such subpoenas", the Department of Labor promulgated regulations designed to achieve "more equitable treatment for the general public and place responsibility for determining the response to subpooenas on the appropriate departmental officials."

46 Fed. Reg. 49452 (Oct. 6, 1981).

These regulations, codified at 29 C.F.R. 52.20-2.25 (1983), set forth the procedures to be followed in responding to subpoenas in cases to which the Department of Labor is not a party.

See'29 C'.F.R. 52.20(a).

They apply to any demand "for the production or disclosure of (1) any material contained in the files of the Department, (2) any information relating-to material contained in the files of the Department or (3) any information or material acquired by any person while such person was an employee of the Department as a part of the performance of this official duties or because of his official status."

Ibid.

Under these regulations, a Department employee who is served with a subpoena for records or testimony is required to notify the appropriate Office of the l

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See 29 C.F.R. S2.21.

Moreover, "the party causing the subpoena to be issued" is also required to provide the Office of the Solicitor "with a written summary of the information sought and its relevance to the proceeding in connection w'ith which it was served."

Ibid.

The appropriate Deputy Solicitor of Labor will then determine what course to follow with regard to the disclosure of the suboenaed material or testimony..

See 29 C.F.R. S2.22.

The regulations specifically dictate that no employee may, in response to any such subpoena, ~ produce or disclose any information "without approval of the appropriate Deputy Solicitor of Labor."

Ibid.

More importantly, federal district courts have consistently upheld the validity of DOL's own Touhy regulations.

In Reynolds Metal Company

v. Crowther, 572 F.Supp. 288 (D. Mass. 1982) the court l

upheld the Deputy Solicitor of Labor's exercise of discretion under 29 C.F.R. 52.20 et seq., to bar the testimony of two DOL employees in response to a state l

court subpoena issued in a private action to which j

DOL was not a party.

The court specifically found i

that, "[dlespite these restrictions on testimony by its employees, the Department's policy is to make l

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.. - all non-privileged portions of the investigative file available, provided there is no ongoing enforcement action.

Thus, the Department affords substantial accommodation in practice to the interests of private litigants, within limits consistent with the need for internal regulation of its affairs."

(Emphasis added).

572 F.Supp. at 290.

The validity of the above-referenced regulations and the Deputy Solicitor's discretion in their application to prohibit the testimony of DOL employees was further sustained in Hotel Employees-Hotel Association Pension Fund v. Timperio, 622 F.Supp.

606 (D.C. Fla. 1985).

See also United States v. Bizzard, supra, 674 F.2d at 1387, where the Court of Appeals for the Eleventh Circuit, citing Touhy, upheld the constitutionality of regulations of the Department of Justice which, like in the instant case, prohibited a former employee from testifying as to information acquired during the performance of his official duties without prior approval of the Attorney General.

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In Thornton v. Continental Grain Company _,

Civ. No. 83-3009 (S.D. Ill. May 31, 1985), the court quashed a subpoena duces tecum of a DOL official, upholding the Deputy Solicitor's decision, pursuant to 29 C.F.R. S2.22, to prohibit the of ficial's disclosure of information.

Dear Mr. Feinberg:

This office has been advised of a request for your testimony by way of deposition in connection with the above-captioned.

The regulations of the Department of Labor at 29 CFR case.

2.2 prohibit an employee or former employee from testifying or producing records in cases in which the Department is not a party without the authorization of the Deputy Solicitor.

In determining whether testimony will be authorized, the Deputy Solicitor considers the nature of the testimony, its relevancy to the case, and whether any matters are privi-leged.

We understand that you conducted an investigation into a complaint filed with Wage and Hour by Richard Parks against Bechtel Power.

Mr. Parks alleged that Bechtel had discrimi-nated against him because he had reported safety violations committed by the company.

As a result of the Wage and Hour investigation, NRC conducted its own investigation, which ultimately resulted in the present action for civil money penalties against GPU Nuclear Corp.

Counsel for GPU is requesting your testimony with regard to your investigation.

We understand, however, that you have no independent factual knowledge which is not contained in the record.

All of the factual information in the record, including copies of the witness statements, has been made available.

This matter has been brought to the attention of the Deputy Solicitor and he has determined that since the factual infor-mation contained in the file has been made available and you have no knowledge of any facts not contained in the file, there appears to be no reason why the prohibition against testimony should be lifted in this case.

Therefore, you are not authorized to testify.

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EXHIBIT C 2-This matter is being handled by Mr. Ford Newman, Division of Fair Labor Standards, Office of the Solicitor, Washington, D.C.

Please contact Mr. Newman if you have any questions concerning this case.

Sincerely, Ronald G. Whiting Deputy Solicitor of Labor for Regional Operations By: Miria McD. Miller Assistant Counsel for Administrative Legal Services bcc:VMr. Ford Newman Fair Labor Standards Division Office of the Solicitor Room N-2716 e

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EXHIBIT D l

Federal Register / Vcl. 47, N2. 233 / Fridry, December 3,1982 / N:tices 54585 2

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c11 BLS Federal / State programs; inputs (Reorganization Act), as amended,42 b.NRC and DOL agree to cooperate into CNP and Personalincome U.S.C. 5651.

with each other to the fulfest extent possible in every case of alleged estimates; economic analysis, fund 2.B M und discrimination involving employees of cllocation and program administration dependent upon them.

Section 210 of the Reorganization Act Commission licensees, applicants, or W

prohibits any employer, including a contractors or subcontractors of Rem.stotements Nuclear Regulatory Commission Commission licensees or applicants.

Employment Standards licensee, applicant or a contractor or NRC will take all reasonable steps to h

Administration subcontractorof aCommissionlicensee assist DOLin obtaining access to Request for Employment Information or applicant, from discriminating against licensed facilities and any necessary CA 1027 any employee with respect to his or her security clearances. Each agency agrees On occasion compensation, terms, conditions or to share and promote access to all Businesses or institutions privileges of employment because the information it obtains concerning a Small business or organization employee assisted or participated, or is particular allegation and, to the extent i

SIC: All about to assist or participate,in any permitted by law,willprotect the 2000 responses; 250 burden hours; 1 form manner in any action to carry out the confidentiality of information identified

%e form is used to collect purposes of either the Reorganization as sensitive that has been supplied to it inf:rmation regarding injured Federal Act or the Atomic Energy Act of1954 by the other agency.

employee's wage-earning capacity.

(Atomic Energy Act), as afhended,42 t

Information is necessary for U.S.C. 2011 et seg.

4. '., ~ - -,* tion p

%e NRC and DOL have

%e NRC otticial responsible for -

I determination of continued eligibility for compensation payments under the complementary responsilAllties in the implementation of this agreement is the 3

ama of employee protection.DOLhas Executive Director for Operations; the FECA of forinformation concerning the responsibility under section 210 of DOL ofBcial responsible for

-l previous exposure to harmful _

the Reorganization Act to investigate implementation of this agreementis the substances 5 US 8101 st seq.

employee complaints of di crimination Adminfetrator Wage andHour Division. ~

EmploymentandTraining and may, after an investigation and Wo level point of contacts shallbe a I$wnriverEconomic tiv actfo a e th v'olation, Ex e a

a thee y

to a

'I Readjustment Project reinstate the complainant to his or her agreement for both headquarters and M -321 former position with backpay, and field operations..

One-time survey award compensatory damages, Individuals or households including attorney fees. NRC, though

g. Amendment and Termination 3,330 responses; 2.178 hours0.00206 days <br />0.0494 hours <br />2.943122e-4 weeks <br />6.7729e-5 months <br />; one fom without direct authority to provide a

%Is Agreement may be' amended or

%is study will be used to evaluate remedy to an employee, has modified upon written agreement by the effectiveness of a unique program independent authority under the Atomic both parties to the Agreement.%e f r training, placement and relocation of Energy Act to take appropriate Agreement may be terminated upon

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un:mployed, experienced workers.nis enforcement action against Commission ninety (90) days written notice by either e

ini:rmation will provide critical licensees that violate the Atomic Energy Party guidance in the development of future Act, the Reorganization Act, or 3

policy and programs for displaced Commission requirements. Enforcement

8. Effective Date I

w:rkers.

action may include license denial.

This agreement is effective when Sign'ed at Weehington D.C.,this 20th day suspension or revocation or the signed by both parties.

Imposition of civil penalties..

Dated: July zo. las2.

of November,1982.

Although each agen will carry out its statutory responsib ties EHlam J.Dinas.

DepartmenMeanna Offia^

independently, the agencies agree that

' ExecutfreDinctorforOpentions. Nuclear I" D* *"aruu.4 ts+ a *""I administrative efficiency and sound RegulatoryCommission.

same coes a+sm a+:m a+s*"

enforcement policies will be maximized.

Dated: October 25,19s2.

by cooperation and the timely exchange Winiam M.ouer, oHnf nationin anas of mutual Admin /stmtor, wageandnourDirlslon, I

NUCLEAR REGULATORY int m et.

DepartmentofLabor.

'i COMMISSION

3. Areas of Cooperation fraom ewariru.4 ts a-sa me DEPARTMENT OF LABOR

a. DOL agrees to promptly notify NRC anma coes neem h

Wege and Hour Divlelon of any complaint filed with DOL alleging discrimination within the meaning of

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Memorandum of Understanding Section 210 of the Energy DEPARTMENT OF STATE i

Between NRC and Department of Reorganization Act.DOLwillpromptly La*aor; Employee Protection provide NRC a copy of the complaint.

[CM-4/57el decisions and orders associated with the Study Group CMTT of the U.S.

L Purpose investigation and any hearing on the Organizauon W the WW

%e U.S. Nuclear Regulatory complaint.

Rado MM Moe (CC%

Commission (NRC) and the Department DOL will also keep NRC currently of Labor (DOL) enter into this agreement informed on the status of anyJudicial M"U"9 to facilitate coordination and proceedings segking review of an order

%e Department of State announces cooperation concerning the employee of the Secretary of Labor issued that Study Croup CMIT of the U.S.

protection provisions of Section 210 of pursuant to Section 210 of the Organization for the intemational Radio i

the Energy Reorganization Act of1974 Reorganization Act.

Consultative Committee (CCIR) will l

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ML20214W850

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Dear Mr. Feinberg:

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