ML20216D235

Memorandum & Order Ruling on Dept of Labor Motion to Quash Subpoena.* Order & Appeal Overruling Motion to Quash Subpoena to D Feinberg.Served on 870623

ML20216D235
Person / Time
Site:	Crane
Issue date:	06/22/1987
From:	Smith I NRC COMMISSION (OCM)
To:	LABOR, DEPT. OF
References
CON-#287-3879 86-534-01-OL, 86-534-1-OL, ALJ-87-5, CIV-PEN, EA-84-137, NUDOCS 8706300487
Download: ML20216D235 (11)

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Dggp ALJ-87-5 UNITED STATES OF AMERICA'

'87 JUN 23 NO :30 -

NUCLEAR REGULATORY COWilSSION W?!:

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ADMINISTRATIVE LAW JUDGE Ivan W. Smith SERVED JUN 2 31987

.In the Matter of Docket No. 50-320 General ~Public Utilities Nuclear License No. DPR-73~

EA 84-137 Corporation

[ASLBPNo. 86-534-01-OL]

(Three Mile Island, Unit No. 2)

(Civil Penalty)

June 22, 1987 MEMORANDUM AND ORDER RULING ON DEPARTMENT OF LABOR MOTION TO QUASH SUBPOENA I.

BACKGRotBE In this civil penalty proceeding GPU Nuclear is charged with several counts of the "whtstleblower" provisions of 10 C.F.R. 6 50.7. and Section 210 of the Energy Reorgantiatton Act of 1974. The NRC Staff alleges that GPUN discriminated against Richard Parks because Parks, employed in the cleanup of TMI-2 reported safety concerns to his management, requested assistance frtwthe NRC, and because-Par'es initi--

ated a related employee-protection proceeding with the Departmentiof' Labor under the Act.

The factual issues underlying the resulting' Department;of Labor proceeding share the factual. issuesof this proceeding. A question of Mr.-Parks': credibility has: been identified as anHimportant sub-issue'in -

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..this proceeding -- both -as a. matter of. witness credibility and as rela'ted to his-job perfomance.. Whether Parks provided unreliable,

inforination to the U. S. Government agencies officially' investigating.

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Lhis allegations is especially relevant to Licensee's defense..

Tr. 24-27.-

The Department of Labor, supported by the NRC Staff, however has resisted Licensee's discovery effort, through a subpoena,-to depose.the key Department investigator. Consequently.there is now 'pending before:

me.the Department of Labor's Motion to Quash Subpoena, served June 1.

1987,'and GPUN's June 15 Response to the Motion.

II.. THE SUBPOENA On May 28, 1987 at the rupaest of GPUN, I, issued 1a subpoena-for the deposition testimony of Mr. David Fefhberg, now retired, who conducted the investigation into the allegations made' by Mr. Parks,' including.

direct' interviews'with Mr. Parks.; I also issued the same day a subpoena duces tecum;to the. Administrator, Wage and-Hour Division, Department of '

' Labor, for records reTating to Mr.iParks' complaint.1 On? June'9,the

'I The.respectfye subpoenas were originalTy the' subject of' GPUN's; motion. for subpoenas dated February 4.,1987.which the NRC opposed -

Lon March 3, and to which the Department of Labor responded. by.

letter received on' March 5.EThe Motion was: argued by counsel forn GPUN,.NRC Staff,cand the: Department of Labor atithe prehearingi conference of May'8,11987.; The' Department's Motion to Quash and.'

GPUN.'s' response thereto largely. restate the' arguments made earlier.,

I have considered all of the3arlier writtenJand oral arguments by

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_ 2 Department moved _ to quash the Feinberg subpoena on three groundsn (1) Mr. Feinberg may net testify because the Deputy Solicitaraf Labor withholds ' authorization for him to do so.under the Department of Labor "Touhey"; regulations, (2) Mr. Feinberg has. no inforwation not already produced, and (3) Mr. Feinberg,' approaching age seventy, has health problems.-

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00L's "Touhey"~ Regulations q

i Pursuant to 5 U.S.C.^ l 301,3 the_ Department-(as.haveotherfederal egencies)' promulgated a series of regulations intended to' control the

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method of disclosing infomation in the Department's official files.

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. Apparently the issue of the subpoena duces tecum.to. the Administrator ts moot, t The Department does.not tuove to' quash.it.,

noting the sparse contents of' the case file,1which in any event, will be made available to GPUN on: request. Motion, Affidavit of Corde111. GPUN has not objected to this response, but on June 118, 1987 GPUN counsel statedLin a telephone conference that he assumes:

that. interview notes':taken by Mr. Feinberg would be'availables.

during any deposition of Mr. Feinberg... The' order below should be -

understood to include producing-Mr. Feinberg's. interview notes.

3 5 U.S.C.'i 301. Departmental mgulations(

The head of an Executive department or m'litary department ney:

i prescribe regulations for the government of his-department,:

the conduct of its employees, the distributton and perfomance' of its business,~and the custody, use, and preservation.of.its records, papers, and property. This"section does not.

authorize-withholding infomation from tha.public or. limiting-

- the availability'of records to the publice i

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- 29 C.F.R..Section 2.20-2.25. Of particular relevance are the provisions

- of 29'C.F.R.'!"2.22: "

... :. No employee or fonner employaa 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 relating to material. contained in.

the files of _the. Department,.or disclose any. infor-mation or produce any material acquired as part of' the performance of his official duties or because of his official-status 'without approval of the' appro.

.priate Deputy Solicitor of Labor.

In this case, the Deputy Solicitor of Labor, citing.the foregoing,'

infonned Mr. Feinberg that he is not authorized to testify;in response to the subpoena. Exhibf t C to Motion.to Quash.. Below,. I explain why the Deputy Solicitor's action has improperly frustrated duly authorized-discovery in-the proceeding. It is--inconsistent with the-statute authertring the so-called Touhey regulattons. The' cases cited-by the' Department in connection with its motion to quash fail to support the Deputy Solicitor!s position.

Beginning with the statute,. tyis clear, by its express terms, that :

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the regulations authertred thereunder are intended to be-housekeeping L

measures, ana not privtieges against the disclosure of informatfon i

. otherwfse required'to be disclosed by. law.~ N.la supra.-

.In Untted States ex rei. Touheyiv. Ragen, 340.U.S. '462'.(1951)- (the-name source'of the so-called "Touhey" regulations), reifed upon by'the Department, the issue was 'whether employees.of the Department ~ of Justice could be held in contempt for.' declining to disclose infonnation in:

obedience to the-Attorney General's standing order 'not' to disclos'e.

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i Touhey court expressly did not ' decide the-issue of "the ultimate reach -

l of the authority of the Attorney General to refuse to produce...

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t paperstin his possession" because the Attorney General himself had-not -

.i been before the trial court. & at 467.

The Department cites a series of decisions.for the proposition that the validity of its "Touhey" regulations has~ been upheld by; the' courts..

Indeed the cases do support that general proposttion.. ;But they do not support the additional proposition, implicit in the Department's action, that information otherwise producible may.be withheld under that-1 non-substantive, housekeeping regulation.-

For example, fn Reynolds Metal Company v. Crowther,:572 F.Supp.'288; (D. Mass.1982) e a cuestion. of. sovereign-immunity from suit. was. pm--

senteswhen 00L.0ccupational' SafW' and Health Administration investf -

-l gators decifned under the DOL. regulation to testify in a prfvate if tiga-tion in-a State court. Enforcement.was sought.in the UL S. District Court. There the Court 'noted that the. purposes of the regulation-was to:

centralize control of whether. subpoenas should be obeyed.or. challenged,:

and' to reduce' the hurden upon'the OSHA program.. Id.. at 290.- The' Court went arr to rrote that one' of the policy considerations of;the Touhey j

regulations:(contrary to the case at hand) was toL"mintmf w government-

' involvement in controverstal mattersiunrelated to official business."-

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Id. Moreover the Court in-Reynolds Metal expressly left'open the

- question of "under 'what circumstances.a: federal courticouldtcompel'a-.

federal employee ~to give' testimony contrary to instructions. from the head'of'a. department."E & at 291, citing Touhey,= supra..

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. Boatright v. Radiation Sterilizers, Inc., 592 F.Supp. 1314 (D.

l Colo.1984)'(also cited by the Department) is.very similar to the Reynolds Metal, supra, decision. The testimony of OSHA inspectors had -

been sought in private State-court litigation. The DOL regulation was, of course, upheld.. But the District Court went on to muse:

i These housekeeping regulations [29 C.F.R. I 2.22]

don't, of themselves, create un exemption to the disclosure requirements of the Freedom of Infonna -

tion Act ("F0IA"). Likewise, the FOIA does not alter the long established rule that a government official could withdraw from his subordinates the power to release public documents. This apparent

" Catch-22" is addressed by the appeal provisions of the FOIA.

Id. at 1315. See also Smith v. CRC Builders Co., Inc., 626 F.Supp.12 (D. Colo. 1963"}.

In this proceeding, the Licensee appropriately ad-dresses the " Catch-ZZ" aspect of the 00L regulation by exercising the discovery rfghts afforded to it under the Atomic Energy Act, the Admin-

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istrative Procedure Act, and the NRC regulations.

Hotel Employees-Hotel Association Pension Fund v. Timperio, 662 F.Supp. 606 (D.C. Fla. 1985) is also instructive. Again the testimony of DOL employees was sought by the plaintiff in private litigation and again the DOL regulations were recognized as an appropriate bar to the testimony. However, the District Court made.its own analysts of the adequacy of the information already provided to the. plaintiff by the Department, and determined that, under the ruies of evidence, the testf-

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many sought was unnecessary to the plaintiff's case.

Id_. at 607-08. By-evaluating the plaintiff's evidentiary requirements against the purpose of the regulation the Court implicitly recognized that the DOL l

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regulation,does not bestow a' substantive privilege against disclosure of-infomation. Factually, this; proceeding must be contrasted with Hotel

- 1 Employees, because a determination -has.been made that the information withheld by the Department IMr.1Feinberg's testimony).has no functionally equivalent substitute, and that the information:is material-l to the preparation of the Licensee's -defense.

i There are several very fundamental flaws in the Department's application of'its "Touhey" regulation to the circumstances of this NRC g

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pmceedtng. First, the Licensee in-this case _is~ not a private litigant in a State court proceeding..The NRC, charged by the Atomfc Energy.Act.

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with affordtng to Licensee a fair hearing, is a sister federal agency.-

The NRC shar1ts with the Department of Labor complementary.

responsibilities to: enforce Section. 210 of'the Energy Reorganization) h

'Act.

In fact, the NRC and the Department have entered into a Memorandum

'of Understanding acknowledgtng their complementary responsibilities,- and pledging "to promote access to 'all infomation each obtains concerning~ a; j

particular allegation."4 Far from the situation. in Reynolds Metal..

supra, the objective of the regulation, " minimizing' government involve.

l ment in controverstaT matterr unrelated te offictallbusiness," is,not i relevant' to the:Departnent's. refusal here ~ :The Licensee,f through NRC l

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-Memofandum of Understanding Between NRC and Department of Labor,-

, Employee Protection. 47 Fed. Reg.- 54585, December 3,11982' e

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subpoena power, seeks information directly related to the commm official businessLof the Department and the NRC.

Second,.the Deputy Solicitor cannot fairly. assert that the.

housekeeping' purposes of the Act.are served by his action.. There would

'E be' no burden' imposed upon the Wage and. Hour Division program by taking c the. testimony of Mr. Feihberg. He isino longer E'mployed by the..

' Department and his-deposition cannot adversely affect the Department.

q In this context, it should be noted that the Department does not suggest-that. the depositton of Mr. Feinberg would infringe upon any recognized j

priviTege --.for example, exemptions to the Freedom of(Information Act, deliberatfve process,' work product, attorney-client or any other tradi-

.tional category of privileged information.

In fact, nowhere~ does the

1 Departummt explain'esactly _why it would be. injured by. permitting Mr. Feinberg to testify.

Third, the-Deputy Solicitor has_made a unilateral Judgment'as to

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the NRC's evidentiary needs~ in this~ case. Lit is true that the' Department'has cooperated with the NRC/Staffiand has1 released anlarge-I amount of information;for use in-this adjudication. The~ issue, however,-

j is not the quantity of' toim.. i.iorr, but the particular needs of this adjudication. The. Atomic Energy Act, the Commfssion's' Nottce of'Heerfng and~ the. Administrative.~ Procedure Act charge the administrative law judge-and NRC reviewing adjudicators with affordi_ng.due process'to the parties

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l including discovery concerning:the.~ charges.against the Licensee /de'fendant here.,. After? carefully. considering. the~ arguments' ofJ all the parties against:the factual; background of this proceedingCthe?

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I.I Licensee has convinced me that it is entitied to the information sought -

through the deposition of Mr.'Feinberg. By making an uninfomed l

1 detemination that-the NRC adjudication does not need Mr.' Feinberg's testimony,:the Deputy Solicitor of Labor has usurped the NRC's l

1 adjudicatory responslbilities and has frustrated the. orderly' litigation l

of an important health and safety case.

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Infomation Already Produced

.The Department represents, with supporting affidavits, that.it'has already prtryided to _GPUN all factual and substantive information con-tatned in the investigation fiTe. It has even obtained releases from persons whose statements were takerr in confidence in the spirit of

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.q cooperetten with the NRC.c. Metten to Quash atn5-6. Mr; Feinbevistates

.i in his affidavit-that he incTuded in his report and:the case ffie all i

the factuallinformattan that he obtained, and:that he retained no -

personal records or notes-regarding.his investigation.uThe investigation.was closed four years ago, but Mr. FeinbergL recently-reviewed the factual. portion af the. file, and reports thatlhe has' no further inforinttforr regardimf.the matter.

2 GPilN stater..however, that even if Mr. Fetnberg har ntr further factual inforatiort to offertit means merely that:.the: deposition willa y

be short and. that GPUN is nevertheless entitled to probe.Mr. Feinberg's-

memory. 'I agree.

The issues in this proceeding;are subtle. Reliable-evidence:may be q

elusive.1The proceeding involves issues of motivation. Mri Parks' >

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1 credibility, as noted at the outset, may be central to the resolution of some of the issues.. Counsel for Licensee has a formidable task in preparing a defense. My evaluation of that task has persuaded me that a I

i deposition of Mr. Feinberg may go far to resolve this important credi-bility issue. Moreover, GPUN's persistence in seeking to depose Mr. Feinberg is driven by more than speculation. Counsel has provided evidence from a recent deposition of Mr. Parks that he, Parks,

.l challenges the accuracy of Mr. Feinberg's interview notes. Attachment to Response.

If, as the Department states, Mr. Feinberg has no addittonal information to offer, nothing will be lost; the deposition will. be short.

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Mr. Feinberg's Age and Health I

Mr. Feinberg states in his affidaytt that his age, approaching seventy years old, and some health problems would make it difficult for i

him to submit to a deposition. He provided no.other'information concerning that statement. GPUN responded by observing that as recently-l as March 23,1987 Mr..Feinberg was apparently fit enough to be scheduled for court testimony. Attachment to Response.-

The subpoena calisLfor Mr. Feinberg to appear at a place and time I

mutua1Ty convenient to hint and GPUN represenidia.

In its response-GPUN further agrees'to any reasonable structuring of the ' deposition-to

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avoid any excessive burden on Mr. Feinberg. The record does not provide u

s any basis upon which I may excuse Mr. Feinberg because of his age or

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1 health problems, but if Mr. Feinberg needs further protection on that'

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account, I shall entertain his request for relief.

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'f III. ORDER AND APPEAL i

The Motion to Quash the Subpoena to Mr. Feinberg is overruled. The Department of Labor may take an appeal from this order by filing a j

notice of appeal within ten days after it has been served, and a brfef-supporting its position within thirty days after filing its notice of appeal. Any briefing by other parties shalf be in accordance with procedures established by the Appeal Board.

i-W<W Ivan W. Smith' ADMINISTRATIVE LAW JUDGE 1

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June 22, 1987-l h