ML20238E539
| ML20238E539 | |
| Person / Time | |
|---|---|
| Site: | Comanche Peak  |
| Issue date: | 09/08/1987 |
| From: | Eggeling W, May J, Steenland D ROPES & GRAY, TEXAS UTILITIES ELECTRIC CO. (TU ELECTRIC) |
| To: | Atomic Safety and Licensing Board Panel |
| References | |
| CON-#387-4323 CPA, OL, NUDOCS 8709150054 | |
| Download: ML20238E539 (17) | |
Text
, . _ - .
q
.j i y N
, .( o' l 000P !Ei n:
< Filed: September 8,1987 l
'87 SEP 10 P3 :28 /
, UNITED STATES OF AMERICA
.I en ,
NUCLEAR REGULATORY COMMI5SION '
I%
i i before the
/. ja
')
i ATOMIC SAFETY AND LICENSING BOARD
/
)
In the Matter of )
TEXAS UTILITIES ELECTRIC )
COMPANY, g.LAL ) Docket Nos. 50-445-OL
, ) 50 446-OL (Comanche Peak Steam Electric ) 50-445-CPA Station, Units I and 2 "
)
}
.. r RESPONSE TO 4BM.QS' fMOTION FOR DECLAR ATORY ORDER"
( (
As this Board is aware, dispytes -- apparently simmering for some time -- have relatively recently erupted into full-blown litigatio'n between and among the owners of the Comanche Peak Steatn Electric Station This litigation is currently being conducted in the Texas state court system,1 and involves claims and counterclaims betweer lhe Majority Owner and Project Manager, TU Electric, and the Minority Owners, Brazos Electric Power Cooperative, Inc. ("Brazos"), Ten-La Electric Cooperative of Texas, Inc.
'" Tex-La"), and Texas Municipal Power Agency ("TMPA"), as to whether they have properly fulfilled their contractual responsibilities to one another. These responsibMies, and alleged responsibilities, arise out of a written document, the " Joint Ownership Agreementi 'izin.3 the undertakings of the parties thereto with respect to their t Texas Utilities Electric Comoany v. Te,;t-La Electric Cooperative of Texas inc, Texas Municioal Power ARency and Brazos Elec.tIic Power Cooperative. Inc No. 86-6809-l A, Distr.ict Court of Dali.as County, Texas,14th Judicial District; and Tex-La Electriq l Cocoerative of Te3n_1nc. and Texas Municinal Power Acengy v. Texas Utilities and Texas Utilities Electrie comoany: No. 399,334 District Court of Travis County, Texas, 98th Judicial District. "
l D
l 0 e '
l m -
v g spropoged joint construction and operation of the Comanche Peak Steam Electric Station.
4 Tgate pretation and enforcement of that written contract (a matter consigned to vate law dy 'the United Stake $ Conditution 8 and, in particular, to Texas law pursuant to this 3
contract's express terms ) is the focal point of the battle currently raging before the 1 ,
Texas ju ficiary.4 ,D 77- While it may & inevitable that disputes between the Owners of Comanche Peak a
,, muN pioduce some reverberations in the areas subject to the regulatory jurisdiction of-the Commission, it is noteworthy that the subject matter of those inter-owner contr :tual disputes are significantly distinct from the subject matter committed to the N
NRC's jurisdiction by Congress.8 It was thus reasonable to hope thst such reverberations
's Seg, gA, Erie R.R. Co. v. Tomokins, 304 U.S. 64, 78 (1938) ("Except in matters governed by the Federal Constitution or by Acts of Congress, the law to be
- applied in any case is the law of the State."); see also Aronson v. Ouick Point ' Pencil CA,440_ U.S. 257,'262 (1979) (" Commercial agreements traditionally are the domain of 3'
state law."); Northern Ujoeline Construction Co. v. Marathon Pine Line Co.,458 U.S. 50, 84 (1982) ("Incieed, the' cases before us, which center upon appellant Northern's claim for damages for breach of contract and misrepresentation, involve a right created by Ltalg law. , . . .") (emphasis in original).
N a
[6, #' The parties, ir.cluding Brazos, expressly agreed that the Joint Ownership Agreement is to be " governed and construed in accordance with the laws of the State of Texas incluaing all matters of . . performance;" Joint Ownership Agreement i 23.04.
Thus, notwithstanding .the undoubtedly correct syllogism that the contract's interpretation must be consistent with federal laws applicable to the parties, the issues of performance which Brazos attempts to raise here are matters committed to state, not federal, tribunals. Set nenerally, Note, Supreme Court Review of State interpretation af Federal
' Law Incorporated by Rc/erence,66 Harv L. R3v.1498 (1953).
4
' And scheduled for trial before a Texas jury on August 1,1988.
,s prottc;tiots/ public t}% The health Commission has recognized and safety, specifically thattoits with respect theauthority is limited "special hazards of to assuring th radiat9tj7Q4etrooolitan Edison Comoany (Three Mile Island Nuclear Station, Unit 1),
CLI-8h6( fp NRC 407 (1982). The Commission's authorizing legislation also expressly w disclaimed any intention of broadly preempting the authority of the states. Sgg 42 U.S.C.
Y $ 2021(i)("Nothing in this section shall be construed to affect the authority of any state 4 or local agency to regulate activities for purposes other than protection against radiation s)f ' hazarth"). Didortion of the Commission's statutory grant to conclude that it may be
'j used to interfk? with the rights of parties to petition any court for redress of the
-r breach of a" pr}vate contract relating to the economic relations among parties in a joint venture, solely because that contract is related to the construction and operation of a p ,
.)
i
$) y
[
________m-- _ ___ - - _ - - - - _ _ _ _ . - _ - _ _ _ _ _ _ _ _ _ _ _ d
could be kept to a minimum while the Commission's resources remained concentrated on the issues committed to it: viz., the determination of whether the licenses requested for CPSES would be consistent with the requisite protection of the public health and safety.
It is now however apparent that at least some of the Minority Owners are determined to attempt to invite this Agency and this Board into jurisdictional excesses.
Their effort thus to employ improperly the NRC as an additional battleground reflects a transparent effort to obtain leverage against the Project Manager, which advantage they must not8 be able to obtain elsewhere. This situation is deplorable, if only because the recklessness of such an approach further confirms what has become increasingly clear to others: viz., that the Minority Owners are prepared, perhaps even determined, to sacrifice the construction and licensing of Comanche Peak in the pursuit of their own financial goals. As Judge John McClellan Marshall, the Texas trial court judge currently handling the bulk of the Owners' disputes, recently observed:
"The Plaintiffs [TU Electric] want to get that license as rapidly as they can and the Defendants [the Minority Owners] want to delay that license as much as they can for a variety of reasons that have not been made explicit before this Court which leap out from a cursory reading of some of the documentation.*7 nuclear power plant, would be an extraordinary error.
Notwithstanding these fundamental points Brazos argues (Motion at pp. 31-35 and n.36) that this Board may consider the relief it requests based upon the principle that its parent Agency may take any action consi.; tent with the Atomic Energy Act,10 C.F.R. Part 2, subchapter G and sections $51-558 of the Administrative Procedure Act ("APA").
The referenced authority is simply inapposite. Brazos ignores the fact that the APA contains a clear command that a federal agency may only act within its jurisdiction (an
" order [may not be imposed) except within the jurir, diction delegated to the agency and as authorized by law." 5 U.S.C. $ 558(b)).
6 Note that if the unstated claim inherent in the Brnes' " Motion" were correct, that TU Electric has a contractual duty to provide it with appropriate representation, sig pp.13-15,in[a, Brazos would surely be vigorously urging that putative right before the state tribunals. That it is not doing so, or that it has been unable to persuade those tribunals of the rectitude of its argument, is strong evidence of the flimsiness of the claim.
7 Texas Utilities Electric Comoany v. Tfx-La Electric Cooperative of Texas. Inc..
et al., supra note 1, Argumer^. of July 30,1987, Tr. at 16. The issue before Judge Marshall at the time of this s,bservation was the timing of certain discovery which the 3-
- i( ~
( \
F pi '
The validity of Judge Marshall's observation has now been demonstrated anew by
,3 : Butros' filing of a putative Motion for Declarate+y Order" before this Board. The issues j o) '5 :
purportedly raised by this " Motion" are based upon facts and law that have already becn
/ 1 s extensively briefed and explained to this Board.0 More importantly, the " Motion"
^
requests . relief that is patently beyond the authority of this Board (and the Commission)
^N '
to entertain. For these reasons, we shall respond to Brazos' Motion only to the extent necessary to ek,;me mare clearly its fundamental procedural and substantive deficiencies.'
. We shall however, as well briefly address the issue that Brazos has failed to address --
its "unt;ater claim --so that the Board may better perceive why Brazos has no leptimate basis for complaint.
!, Brazos' essential position can be divided into two expressed claims, which may
, ,\ profhably be mimined seriatim. ,
"> sik<*j CLAIM ONE Brazos' primary purported claim is its request that this Board order Ropes & Gray k 'f '.
Minority Owneta were seeking to force upon some of th= CPRT consulting experts.
While Judge Marshall's words were thus neither ruling nor order, they do reflect his N '
substantial perspicacity in analyzing the situation preserted by the Owners' litigation.
Indeed, the wisdom of his observations can be easi?y ccafirmed by this Doard by a review 9 \4 - of only the argumt nts submitted to it Oy Brnzos 'And TMPA.
8
[' <
Sex, gA TU Elstric forlbt_Qwners of CPSES Resoonse to CASE and Meddie Grecorv Motion for Accointmert?ijfstal Counsel for Mitwitv Acolicants and for Qarification of Discovery Reipap.sn at 27 n.19 (April 16,1987). fl "The Board is
, ), . privileged to have before it three fine legal briefs relating to CASE and Meddie Gregory's Motion for Appointmrot of 1.egal Counssi for the Minority Applicants and for s ~
Clarification of Discovery and Other Responses Received frou Applicants, March 9,1987."
Texas Utilities ElectriqfA (Comanche Peak Steam Electri: Ststion, Units 1 & 2)
-( Memorandum and Order (May 4,1987).
8 Because the Project Manager does not deem it appropiate to compound the v Commission's record with allegations and counter-allegations regaraing' disputes which are
(. entirely de hors (f.c Commission's jurisdiction, we trust such an appropriately limited I response will not be caderstood as signalling e.cc,uiescence in the validity of a.IlX of
"') , ' Brazos' assertions.
O; -
" .& , {
g-J'<A i _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ - - - _ - - _ - _ - _ - - - _ - - _ - _ _ _ - . - - - - - - - - - _ _ _ _ _ _ _ - - - _ - - _ - - - _ - _ _ _ _ _
.b to accept Brazos as its client and to give Brazos legal services based upon such an impressed attorney / client relationship. Brazos cites no authority for the bizarre proposition that private lawyers may thus be compelled to serve as attorneys for an entity whom they have never accepted as a client or agreed to serve in any direct capacity.1 Indeed, any such power would violate the fundamental rule that -- like any agency agreement 11 -- the attorney-client relationship must be consensual.12 harmonious 10 Courts, whose powers over members of their own bar may be thought to exceed significantly that of an' administrative tribunal, may only appoint attorneys to represcat parties in civil cases when a statute authorizes them to do so. Bethea v.
Crouse,417 F.2d 504,505 (10th Cir.1969); Peterson v. Nadler,452 F.2d 754,757 (8th Cir.
1971); Securities & Exchanne Com'n v. Alan F. Huehes. Inc.,481 F.2d 401,403 (2d Cir.)
p.gr.1, demed 414 U.S.1092 (1973). Courts also recognize that such statutes may be ;
constitutionally suspect if invoked for the benefit of non-indigent parties or if tlicy are j used to coerce unwilling lawyers to take on clients. Seg, gA, U.S. Const., Amend 5 '
(prohibiting taking without just compensation); U.S. Const., Amend.13 (prohibiting 4 involuntary servitude); U.S. Const., Amend 14 (guaranteeing equal protection and due j process); L,una v. Intern. Ass'n of Machinists & Aeroscace Workers,614 F.2d 529,531 i (5th Cir.1980) (noting, without resolving the issue, that appointment of attorneys to represent Title VII plaintiffs might be unconstitutional); Br.ggjgt v. Central Bank of Birminnham,717 F.2d 1340,1342-43 (lith Cir.1983) (same); Poindexter v. EAL,737 F.2d 1173,1191 n.50 (D.C. Cir.1984) (same). See also Matter of Nine Aeolications for Anoointment, 475 F. Supp. 87 (N.D. Alab.1979) (appointment of attorneys to represent '
Title VII plaintiffs unconstitutional), vacated .uk 1 n91n: White v. United States Pine &
Foundrv Co.,646 F.2d 203 (5th Cir.1981) (party lacked standing to raise constitutional issue). Courts may require attorneys to represent indigent criminal defendants because of the pyhlig need for such service and because lawyers are fully aware -- when they seek to become members of the Bar of the court -- that they may be called upon to render such service. Williamson v. Vardeman,674 F.2d 1211,1214-15 (8th Cir.1982). Obviously, 3
Brazos is neither indigent nor a criminal defendant and the present forum is an administrative agency, not a court.
11 Agency law governs the " attorney / client relationship." Seg, gl, Capital Dredte and Dock Coro. v. City of Detroit,800 F.2d 525, 530-31 (6th Cir.1986); Brinklev
- v. Farmers Elevator Mut. Ins. Co.,485 F.2d 1283,1286 (10th Cir.1973); Committee on Professional Ethics Grievances of Virnin Island. Bar Ass'n v. Johnson,447 F.2d 169,174 (3d Cir.1971); Henslev v. United States,281 F.2d 605,607 (D.C. Cir.1960).
12 In re Yarn Processine Patent Validity Litigation,530 F.2d 83,90 (5th Cir.
1976); Connelly v. Wolf. Block. Schorr and Solis-Cohen, 463 F. Supp. 914, 919 (E.D. Pa.
1978); McGlone v. Lacey, 288 F. Supp. 662 (D. S. Dak.1968); J.M. Cleminshaw Co. v. Cill of Norwich,93 F.R.D. 338, 349 (D. Conn.1981). See senerally Restatement, Second, l Agency $ l(l); Steffen Agency-Partnership 6 2 (1983).
l \
l i
4 -
4 and rooted in mutual confidence and trust.ts We trust it is therefore necessary only to remind the Board of that which has been previously expressed to it on several' occasions:
(1) Ropes & Gray has never undertaken to serve as attorney for Brazos,14 or any of the .
l other Minority Owners, nor has it ever acted as attorneys for any of those Owners or l rendered them any legal services;(2) Ropes & Gray has repeatedly expressly informed i Brazos, and the other Minority Owners, of this fact whenever15 any legitimate question as to its position has been raised; and, (3) Ropes & Gray will never accept retention by ' .
Brazos, or any of the other Minority Owners, in connection with the licensing of 1s Sgg, gA, Kigt v. Commercial Union Insurance Comoanies. 808 F.2d 1254,1257 (7th Cir.) ggIL denied 107 S. Ct.1955 (1987) ("the relationship between attorney and client is based on trust and cannot function unless the client has complete confidence in his or her attorney"); Farkas v. Sadler,375 A.2d 960,962 (R.I.1977)("It is universally recognized that the office of attorney admits of the very highest confidence and depends upon a working if not harmonious relationship between counsel and client for its vitality"); Fisher v. Stale,248 So. 2d 479 (Fla.1971) (Successful maintenance of the attorney / client relationship requires that the client have absolute confidence in the attorney, and that the attorney have absolute confidence in the client).
14 Brazos has frequently chosen language which threatens to obscure the facts.
For example, its repetitive suggestions that Ropes & Gray should be directed "to continue to represent . . . recogni[ze], accept . . ., and discharge . . . its fiduciary relationship to Brazos" (Brazos' Motion at, gA, 34 and 35; emphasis supplied) may easily be misunderstood to imply that Ropes & Gray has at some point in the past rendered legal services to Brazos, or has recognized, accepted or discharged the sort of responsibilities which Brazos has in mind. Nothing could be further from the truth. No Ropes & Gray attorney has ever rendered any legal services to Brazos. No Ropes & Gray attorney has ever given any advice or opinions to Brazos. No Ropes & Gray attorney has ever received any confidential information from Brazos. Indeed, we are unaware that any Ropes & Gray attorney has ever even communicated with any of Brazos' officers, directors or employees. As the very exhibits to Brazos' Motion reflect, what Ropes &
Gray has consistently done is to advise Brazos' lawyers, in no uncertain terms, that it serves as counsel to TU Electric, not to any of the other Minority Owners.
Is The Minority Owners also appear to suggest that Ropes & Gray's position is
, one of "relatively recent" vintage. Assuming its longevity could have some relevance to the questions presented, the Board should be aware these statements are not true. Ropes
& Gray has been uniform in its position since the questions first arose. Indeed, the first written communication of that position to the Minority Owners' lawyers occurred over a year ago.
t
'l
Comanche Peak.16 In' lieu of the applicability of principles of law of which we have never even heard, and which Brahs has been conspicuously unable to locate, the " relief" sought by Brazos simply cannot be obtained and its arguments in support thereof may not be entertained.17 CLAIM TWO Brazos'second claim is that Ropes & Gray "should be permitted to withdraw" from representation of Brazos upon a " condition." As discussed above, inasmuch as Ropes &
Gray has never before, does not now and will not in the future represent Brazos, it will not be seeking any authorization for leave to " withdraw" from a representation which does not exist.ts The first portion of Brazos' alternative claim for relief is thus not a necessit i. It is rather an impossibility.
16 Brazos would apparently have this Board overlook the fact that the representation it wishes this Board to declare extant would appear to be directly violative of the lawyers' Canon of Ethics, at least insofar as Brazos' version of the underlying facts is to be accepted. Its seems' indisputable -- based upon that version --
that Brazos and TU Electric can be characterized as having adverse interests in the general subject matter of the representation: the appropriate course for completion of the construction, licensing and operation of the Comanche Peak Steam Electric Station.
Any doubts on that score should have been resolved by the undoubted accuracy of Judge Marshall's recent observation regarding the Owners' differing interests in this proceeding.
This adversity establishes clearly tha.! Ropes & Gray may not ethically serve as Brazos' lawyers. Seg, g&, DR 5-105(B):
"A lawyer shall decline proffered employment . . . if it would be likely to involve him in representing differing interests . . . ."
Sgg alla DR 5-105(C), EC 5-14 through 5-18. The notion that this Board should declare to exist something that would be unethical is additional evidence of Brazos' lack of any sense of proportion.
17 Seg, gA, Marshall v. Gibson's Products. Inc. of Plano, 584 F.2d 668 (5th Cir.)
cert. denigd,444 U.S. 884 (1979)(where statute did not provide for grant of injunctive relief, court petitioned for that relief lacked subject matter jurisdiction and claim was dismissed).
is indeed, even the possibility of confusion was removed some months ago when Ropes & Gray attorneys filed new appearance slips emphasizing the fact that TU Electric is their only client.
\
i 1
- l. \
Although apparently mooted by the failure of its essential premise, the supposed j
! " condition" which Brazos would engraft upon such a withdrawal request is independently i l
deficient in both its subsidiary premises and its supposed conclusion. Brazos claims to l fear " threats"18 supposedly issued by TU Electric. Brazos thereupon requests that this ,
1 Board issue a " declaratory order" that its real counsel may file appearances for Brazos l
without further such " threats" by TU Electric.20 The assertion that this Board has the current power or duty to enter into an attempt to resolve a dispute which Brazos suggests currently demands attention is a further reminder of the extent to which at least one of the Minority Owners is willing to distend reality to promote its war against the Project Manager.
The short answers to Brazos' requested " condition" are as follows:
- 1. No known impediment prevents Brazos' lawyers from filing appearances on its 18 The alleged " threats" in fact consist of nothing more than the Project Manager's quite proper reminders that conduct violative of duties owed under the Joint Ownership Agreement may be a basis for liability, especially when they interfere with the central purpose of that agreement. Sn, gA, Joint Ownershio Aereement 611:02 (parties must cooperate with Project Manager's efforts to obtain necessary licenses for Comanche Peak).
20 Brazos does not explain what conduct it believes will violate its duty to cooperate with TU Electric. See note 19, supra. At times Brazos suggests it wishes to disclose documents to the NRC vhich TU Electric has, presumably, not disclosed.
Elsewhere, it suggests that it inttods to make a general appearance in the licensing proceeding. The open-ended, and apparently vacillating, nature of Brazos' request is reason enough to reject it. L.icensing Boards do not issue declaratory orders to " resolve purely hypothetical questions" Tennessee Vallev Authority (Phipps Bend Nuclear Plant, Units 1 & 2), ALAB-506, 8 NRC 533, 549 n.55 (1978). See also Climax Molybdenum Co. v.
Sec. of Lab.st,703 F.2d 447,452 (10th Cir.1983) (agency may refuse to issue declaratory order when plaintiff has showa no "special need" for same); Intercity Transo. Co. v.
United States. 737 F.2d 103,108-10 (D.C. Cir.1984) (same). Indeed, Brazos' motion is so amorphous that it amounts, essentially, to a request for an advisory opinion. The NRC, !
however, uses its power to issue advisory relief sparingly, United States Deot. of Enerny (Clinch River Breeder Reactor), LBP-84-4,19 NRC 288,293 (1984) (only in " compelling circumstances"), and only in response to issues of " demonstrably recurring importance,"
Tennessee Vallev Authority (Hartsville Nuclear Plants, Units l A,2A, IB, and 2B), ALAB.
467,7 NRC 459,463 (1978). Contrary to these principles, Brazos would have the Board seize upon a problem which, in fact, has not been crystallized and issue an order it simply has no power to make.
.g.
behalf. Indeed, they have done so regularly, including six separate appearances in connection with the current " Motion" alone.21
- 2. In the event that TU Electric, or any other party having standing, concludes that such appearances are violative of legal principles which are applicable before and enforceable by the ASLB, it may elect to take various steps to enforce those principles such as by, inter alia, moving to strike such appearances or, in appropriate circumstances, to delineate and circumscribe such lawyers' rights 22 to address the Board on one or more issues. Sgt, m,10 CFR 2.714(F),2.715. Until and unless both 2s or these events occur, however, there is no current dispute regarding Brazos' representation which is ripe for this Board's consideration.24 l
21 These facts also explode Brazos' occasional suggestion that tht matter at issue involves its rights to a lawyer. It is clear that Brazos has an abundance of lawyers, all presumably vigorously defending its interests. What it wants is the right to control someone else's lawyer. That "right" is not enshrined anywhere.
22 Or, more pre:isely, the rights of the party on whose behalf the attorney perports to appear. Thus, for instance, in a situation that occurs commonly in NRC licensing proceedings, a person of whom discovery is sought and who claims that the discovery would violate some right or privilege personal to him may be permitted to address the Board (and to have counsel file an appearance for the purpose of doing so) on the propriety of the discovery. EA, Kansas Gas & Electric Co. (Wolf Creek Nuclear Generating Station, Unit 1), ALAB-311,3 NRC 85,88 (1976). This is the model for some of the special appearances heretofore filed by a Minority Owner who wished to contest discovery on a ground that was neither inherent in the question propounded nor common to all of the Applicants.
23 Viz.: (1) Brazos' lawyers seek to appear for it generally as a party, and (2)
{
such appearance is challenged by an existing party.
l 24 During a conference call regarding CASE's request for an extension of time to respond to the Brazos' motion, the Chairman of the ASLB suggested an interest in obtaining the Applicants' views regarding the propriety of the Board's issuance of an order declaratory of Brazos' lawyers' rights to make an appearance. For the reasons j discussed elsewhere in this brief, gr, u, 7 n.7 and 8 n.20, and accompanying text, I Brazos' failure to seek any such relief should be fatal to the Board's sua sponte consideration of it.
Nevertheless, in the event that the Board is determined to memorialize the 4 essentially uncontested proposition that Brazos' lawyers are not prohibited by any rule of J NRC law from filing appearances on behalf of their client, we can offer no absolute reason not to do so. We observe, however, that going beyond such a tautological l statement (by, for example, expressing any opinions with regard to the effect which such l
l
- 3. The " threats" which Brazos perceives must be based upon its own fears2s that l sts actions will be determined to be violations of its contractual responsibilities under the i
Joint Ownership Agreement. Such contractual violations, if they are to be the subject of any litigation, mustte be pressed before the Texas state judge currently preparing to adjudicate all of the contractual rights and duties of the parties to the Joint Ownership Agreement.27 What Brazos thus really wishes is for this Board to purport to enter an order which, were it enforceable at all, would take the form of an injunction prohibiting TU Electric from bringing before the Texas state courts legitimate claims of breach of contract.2s It is elementary that this Board lacks jurisdiction or power to enter the sort appearances may or may not have under state law) would transgress the established principles and precedents regarding the limits of this Board's authority discussed hereinafter. It would therefore assuredly be improper.
2s Sn note 32, infra; note 6, supra. I 20 Sn, n, Texas Rule of Civil Procedure 97(a); Restatement of Judgments 2d {Q 18,24, Griffin v. Holidav Inns of America, 496 S.W.2d 535,539 (Tex.1973); m nenerally Jack H. Brown & Co. v. Northwest Sinn Co., 718 S.W.2d 397 (Tex. App. Dallas 1986).
- 27 Brazos is essentially asking the Board to rule that provisions of the Joint Ownership Agreement which Brazos proposes to violate, n n.20, suora, are ;
unenforceable, or, put another way, to resolve a contract dispute Brazos fears may arise with TU Electric. This Board lacks such power:
(i) An administrative agency is not empowered "to adjudicate, render final judgment, and issue binding orders in a traditional contract action arising under state law, ','ithout consent of the litigants, and subject only to ordinary appellate review."
Thomas v. Union Carbide Aar. Products Co.,473 U.S. 568, 584 (1985);
(ii) Even if some agencies had such power, the NRC does not. Sn, n, Metropolitan Edison, suora,15 NRC at 415 (" Congress intended the Commission to confine its regulatory activities under the Atomic Energy Act to the physical hazards of radioactivity . . .");
(iii) Even if the NRC had such power, this licensing board does not.
Licensing Board's jurisdiction is limited to the matters the NRC places before it. Se note 34, infra. SM al10 Arizona Public Service Co. (Palo Verde Nuclear Generating Station, Units 1,2 and 3), LBP-82-117A,16 NRC 1964,1990-91)(1982)(improper for Board to hear collateral attack on contract); E, LBP-82-45,15 NRC 1527,1528 (1982) (same).
2s To its credit, TMPA has been substantially more forthright in its " Motion for Protective Order." It is indisputable from the face of the proposed form of order submitted therewith that what is desired is a prohibitive injunction forbidding TU Electric from exercising its legal rights in the Texas state courts. While Brazos has 'l begun its piece with a supposed request for " representation," it is clear by the time one
e of relief which Brazos demands.29 Indeed, one is hard pressed to conceive of any judicial or quasi-judicial body which would have such extraordinary power.80 Brazos' attempt to waste the resources devoted to the licensing of Comanche Peak on such a frivolous escapade is further sobering confirmation of the validity of Judge Marshall's recent observations.
- 4. Brazos, like all other entities, must account for the actions which it may take.
To the extent that its actions should conflict with its legal duties and responsibilities to others, Brazos may well be liable for any damage inflicted by such violations. That is of course true of everyone in our society. Brazos is no more entitled than anyone else to a purported 83 declaratory order which would, in fact, prospectively immunize its ex sifts through its requested " condition" that Brazos wants exactly what TMPA does. Such orders, however, are manifestly beyond the power of this Board.
89 Inasmuch as this Board, like any administrative agency, lacks equity jurisdiction: it cannot issue injunctions. Seg, gl, Lone Island Lightina Comoany (Shoreham Nuclear Power Station, Unit 1), LBP-85-12,21 NRC 644,918 (1985). Sgg als Baunhman v. Bradford Coal Co.. Inc., 592 F.2d 215, 218-19 (3d Cir.) cert. denied, 441 U.S.
961 (1979) (crucial characteristic distinguishing a " court" from an administrative agency is ability to issue injunction); United States v. ABC Containerline N.V., 572 F. Supp.150, 154 (S.D.N.Y.1983). In fact, without statutory authorization agencies are not empowered to even geth injunctions in court. Marshall v. Gibbon's Products. Inc. of Plano, 584 F.2d 668 (5th Cir.) cert. denied,444 U.S. 884 (1979) (Sec. of Labor not authorized to seek injunction ordering company to submit to OSHA inspection).
80 It would appear that no federal court or agency may constitutionally grant the relief the Minority Owners' request. The right to petition a state court for enforcement of alleged contract rights is almost absolute, particularly where, as here, it must be taken as established that the claim has prima facie validity. See note 32 infra. The reasons why federal law may not impede this right is twofold. First, the First Amendment expressly guarantees TU Electric the right to petition courts for redress of grievances. Bill Johnson's Restaurant. Int v. N.L.R.B., 461 U.S. 731, 743 (1983);
California Motor Transoort Co. v. Truckine Unlimited,404 U.S. 508, 510 (1972). Second, concepts of federalism preclude the federal government from intruding on the states' implementation of that guarantee save in the most extraordinary circumstances. Hill Johnson's Restaurant, suora, 461 U.S. at 743-44.
81 Brazos attempts to elide its jurisdictional obstacles by couching its motion as one seeking declaratory relief. That will not work, it is settled that the power to issue declaratory relief is always a creature of the tribunal's authority to issue mandatory relief enforcing the declaration if required. A tribunal may, of course, only issue declaratory orders on matters within its subject matter jurisdiction. F.C.C. v. Pacifica L_____
I fl f
hypothesi wrongful88conduct from the contractual liabilities that it might otherwise engender.
- 5. If Brazos' argument about the necessarily protected quality of that which it allegedly seeks to do is sound, it must have an adequate defense to any liability claim presented against it in the Texas courts.88 If its claims are unsound, however, it would be injustice per se for it to obtain the sort of purporteds4 relief which Brazos claims to require. One doubts the power of any tribunal to confer such a license to be lawlers; certainly the Atomic Energy Act confers no such remarkable authority upon the
. Foundation,'438 U.S. 726 (1978)(determining validity of FCC declaratory order by considering subject matter jurisdiction of administrative agency); Illinois Terminal R. Co.
- v. LCoC ,671 F.2d 1214,1216 (8th Cir.1982) ("Of course. [5 U.S.C.] Q 554(e) does not allow an agency to issue a declaratory order on any subject matter; there must be r.ome underlying authority").
as I The obvious may bear restating: The Minority Owners have nothing to fear, I and have no reason to seek any prospective relief anywhere, except to the extent that I they may recognize that there is a distinct chance that their proposed actions will be held to be unlawful by a court of competent jurisdiction. The very filing of Brazos' and TMPA's " Motion" therefore confirms that their lawyers have concluded that there is reasonably high probability that they are attempting to vio' N their legal duties to the Project Manager.
' 88 If Brazos is in fact obligated by federal law to do the things which it seeks advance permission from this Board to undertake-, then the Supremacy Clause, U.S. Const.
Art. 6, f 2, must certainly preempt any attempts by the Texas state courts to sanction i that conduct. Gibbons v. Oaden,22 U.S. (9 Wheat.) 1 (1824). On the other hand, the scope of that preemption is solely that which is required under the Atomic Energy Act l
and cannot be extended or compressed by gratuitous pronouncements by this Board such as Brazos tries to induce it to issue. Office of Consumers' Counsel v. Fed. Enerev Rn. j Com'n.,655 F.2d 1132, !!49 n.32 (D.C. Cir.1980) ("[I]t is axiomatic that no order or regulation issued by an administrative agency can confer on it any greater' authority than it has under statute.")
In short, this Board may not create a safe harbor for Brazos or TMPA, nor can it authoritatively chart those safe harbors that may exist ex proprio vigore federal law.
Those questions can be determined only when, as and if the Texas state court is required to' confront them by the parties before it. Anything else is purely advisory.
l 84 f1 Utah Power & Light Co. v. E1,243 U.S. 389,410 (1917) (Agency action which go beyond what Congress has authorized are void and may be disregarded); City of l Santa Clara v. Andrus, 572 F.2d 660,667 (9th Cir.) cert. denied, 439 U.S. 859 (1978) (". !
. administrative actions taken in violation of statutory authorization or requirement are of no effect").
12 -
1
_.________________J
s 1
Commission and manifestly the Commission has purported to delegate no such authority to this Board.88 BRAZOS' " UNSTATED" CLAIM There is yet another fundamental, and fatal, deficiency in the Brazos' position: its failure even to address the real issue and its apparently deliberate refusal to attempt to I
obtain the only relief to which it may be entitled. Brazos has couched its Motion in the f i
context of a supposed controversy regarding legal representation before the NRC. Upon closer examination, however, it may be perceived that the things which it asserts are an impediment have nothing to do with such representation. Thus, for example, Brazos complains that certain documents which it alleges should be presented to this Board will not be so advanced by TU Electric,88 bemoans the fact that it was not given drafts of the responses served by TU Electric as Project Manager,87 and asserts that it has been unable to obtain advice regarding the meaning or scope of certain actions to be taken or not taken by the Project Marager.88 It does not dispute (presumably because it cannot) that all such matters come generally within the area which it ceded to the Project 85 Contrary to Brazos' assertions, the Licensing Board is a tribunal of limited jurisdiction. The Board has only the jurisdiction and power which the NRC delegates it.
Wisconsin Electric Power Co. (Point Beach Nuclear Plant, Units I and 2), ALAB-739,18 NRC 335,339 (1983). The parameters of a board's jurisdiction are defined in the Commission's Notice of Hearing, kt u, Commonwealth Edison (Zion Station, Units I and 2) ALAB 616,12 NRC 419,426-427 (1980); Northern Indiana Public Service Comoany (Bailly Generating Station, Unit 1) ALAB-619,12 NRC 558,568 (1980); Commonwealth Edison Comoany (Carroll County Site), ALAB-601,12 NRC 18,24 (1980)).
se Brazos Motion at 21-27. TMPA appears to base its request for a " Protective Order" upon a similar plaint. Neither Brazos nor TMPA, however, have ever satisfactorily explained why the documents to which they refer are in fact properly responsive to the Interveners' discovery requests which allegedly triggered these Minority Owners' " dilemmas." The Project Manager has determined that the documents which the Minority Owners have called to its attention are nel so responsive.
87 kg, t&, Brazos Motion at 28.
88 Brazos Motion at 27-30.
l i
1
4 4
Manager when it signed the Joint Ownership Agreement.38 As the very communications which Brazos' attorneys have selected in support of its Motion attest, Brazos has been reminded of this on innumerable occasions. It has as well been constantly reminded that any problems it may have regarding such matters are appropriately directed to the Project Manager, not to TU Electric's lawyers. Despite these reminders, Brazos has attempted instead to make the Project Manager's lawyers pawns in a game apparently directed to trying to obtain by sleight of hand that which it has concluded it cannot have under the contract it signed.
88 I
"[T]he Project Manager, as agent for the Parties, after giving due consideration to any recommendations and suggestions of the Owners Committee, and in
- l accordance with the aforementioned standards and guidelines, shall have sole responsibility for, and is fully authorized to act for the Parties with respect to the licensing, design, construction, operation, maintenance . . . and decommissioning of the Project . . . ." Joint Ownership Agreement Q 3.04.
1 l
i g, l
.. .j l
I i
CONCLUSION 1
Brazos requests of this Board specific relief, in two alternative forms. As the precedents discussed hereinabove demonstrate, however, neither of these forms of relief d
are ones the Board is empowered to give. The issues supposedly motivating Brazos' i filing, moreover, are ones which have not yet been placed before this Board in a 1
concrete and sufficiently ripe fashion as to warrant the exercise of whatever power the )
Board may have. To the contrary, it is clear that Brazos seeks to induce this Board to issue untimely pronouncements about the collateral effects of things which have not yet
. happened, and that it hopes to use such pronouncements to seek to interfere with lawful processes 'in other fora. Such matters are by definition beyond the jurisdiction of.the Nuclear Regulatory Commission. The Board should not countenance being used to further such improper motives. It should instead promptly dismiss the Brazos Motion. .I a
l l
TEXAS UTILITIES ELECTRIC COMPANY l For the Owners of 'ES 'l h gj n .
wAM William S. Eggeling
"F Deborah S. Steenland Jeffrey H. May ,
David A. Martland ROPES & GRAY 225 Franklin Street Boston, MA 02110 )
(617) 423-6100 i
)
\
- t. Attorneys for Texas Utilities )
Electric Company
n
'O( k [ ((.
W )
i CERTIFICATE OF SERVICE
'87 SEP 10 P3 :29 u I, William S. Eggeling, hereby certify that op. September 8, HU . ., !
1987, I made service of " Response to Brazos' Motion for Declara- j
' tory Order" by mailing copies thereof, postage prepaid, to: -'
Peter B. Bloch, Esquire Mr. James E. Cummins Chairman . Resident Inspector ;
Administrative Judge Comanche Peak S.E.S.
Atomic Safety and Licensing ~ c/o U.S. Nuclear Regulatory Board Commission U.S. Nuclear Regulatory P. O. Box 38 Commission Glen Rose, Texas 76043 {
Washington, D.C. 20555 ]
d Dr. Walter'H. Jordan Ms. Bl.llie Pirner Garde l Administrative Judge GAP-Midwest Office i
881 W. Outer Drive 104 E. Wisconsin Ave. -B !
Oak Ridge, Tennessee 37830 Appleton, WI 54911-4897 f Chairman Chairman Atomic Safety and Licensing Atomic Safety and Licensing Appeal Panel Board Panel l 0.S. Nuclear Esgulatory U.S. Nuclear Regulatory i Commission Commission I Washington, D.C. 20555 Washington, D.C. 20555 1
Lawrence J. Chandler, Esquire Mrs. Juanita Ellis Office of the Executive President, CASE Legal Director 1426 S. Polk Street U.S. Nuclear Regulatory Dallas, Texas 75224 Commission t Washington, D.C. 20555 !
Renea Hicks, Esquire Ellen Ginsburg, Esquire Assistant Attorney General Atomic Safety and Licensing Environmental Protection Division Board Panel P. O. Box 12548 U.S. Nuclear Regulatory Capitol Station Commission Austin, Texas 78711 Washington, D.C. 20555 i
i
^c 1
]
O Anthony Roisman, Esquire Mr. Lanny A. Sinkin-Suite 600 Christic Institute
'1401 New York Avenue, N.W. 1324 North Capitol Street Washington, D.C. 20005 Washington, D.C. 20002 Dr. Kenneth A. McCollom Mr.. Robert D. Martin i Administrative Judge Regional Administrator 1 1107 West Knapp Region IV Stillwater, Oklahoma 74075 U.S. Nuclear Regulatory q Commission l Suite 1000 611 Ryan Plaza Drive Arlington, Texas 76011 ,
Elizabeth B. Johnson Geary S. Mizuno, Esquire Administrative Judge Office of the Executive Oak Ridge National Laboratory Legal Director P. O. Box X, Building 3500 U.S. Nuclear Regulatory Oak Ridge, Tennessee 37830 Commission >
Washington, D.C. 20555 Nancy H. Williams James R. Bailey, Esquire 2121 N. California Blvd. P.O. Box 7000 Suite.390 _
Bryan, Texas 77805 Walnut Creek, CA 94596 Foster De Reitzes, Esquire Robert A. Jablon, Esquire Heron, Burchette, Ruckert, Spiegel & McDiarmid
& Rothwell Suite 1100 Suite 700 1350 New York Ave., N.W.
1025 Thomas Jefferson St., N.W. Washington, D.C. 20005-4798 Washington, D.C. 20007 J.i=.
William S. Egge
. t g
, b
_ - - _ - - - - - - - - -