Professional Reactor Operator Soc. v. U.S. Nuclear Regulatory Com'n, 90-1120
| Decision Date | 23 July 1991 |
| Docket Number | No. 90-1120,90-1120 |
| Citation | 939 F.2d 1047,291 U.S.App.D.C. 219 |
| Parties | PROFESSIONAL REACTOR OPERATOR SOCIETY, et al., Petitioners, v. The UNITED STATES NUCLEAR REGULATORY COMMISSION and the United States of America, Respondents. |
| Court | U.S. Court of Appeals — District of Columbia Circuit |
Petition for Review of an Order of the Nuclear Regulatory Commission.
Deborah B. Charnoff, Washington, D.C., for petitioners.
Carolyn F. Evans, Attorney, Nuclear Regulatory Com'n, with whom William C. Parler, General Counsel, John F. Cordes, Jr., Sol. and E. Leo Slaggie, Sp. Counsel, Nuclear Regulatory Com'n, Richard B. Stewart, Asst. Atty. Gen., Evelyn S. Ying and Martin W. Matzen, Attorneys, Dept. of Justice, were on the brief, Washington, D.C., for respondents.
Before RUTH BADER GINSBURG, SILBERMAN and THOMAS, Circuit Judges.
Opinion for the Court filed by Circuit Judge RUTH BADER GINSBURG.
This case concerns a rule adopted by the Nuclear Regulatory Commission (NRC or Commission) for the conduct of witness interviews in connection with NRC investigations and inspections of licensed facilities. The rule, titled "Sequestration of Witnesses Under Subpoena/Exclusion of Attorneys," permits: (1) sequestration of subpoenaed witnesses during an interview; and (2) exclusion, as counsel accompanying the interviewee, of an attorney representing "multiple interests," if the agency official conducting the inquiry has "a reasonable basis" for believing that the attorney's presence would impair the investigation. 55 Fed.Reg. 243, 247-48 (1990). Prompting the rule, the Commission stated, were instances in which the "licensee's counsel or counsel retained by the licensee has also represented [during interviews] witnesses who are employees of the licensee." Id. at 243. Employee witnesses, the NRC observed, "have been hesitant to divulge information against the interest of their employer in the presence of their employer's counsel or counsel retained by the employer." Id.
Petitioning for judicial review of the rule are several public utility companies licensed by the NRC to own or operate nuclear power plants, and an engineering company that provides technical support to nuclear power facilities. 1 Petitioners challenge the sequestration provision as incompatible with the free speech and association guarantees of the First Amendment, and the attorney exclusion provision, as impermissible under the Administrative Procedure Act (APA) right to counsel guarantee, 5 U.S.C. Sec. 555(b), and the due process clause of the Fifth Amendment. They also assert that the NRC, in adopting the rule, violated the APA's notice-and-comment requirements.
We reject as insubstantial the petitioners' challenge to the sequestration portion of the rule. Petitioners' APA challenge to the attorney exclusion portion of the rule, however, rests on a secure foundation. Interpreting the APA right to counsel guarantee, this court has ruled that, before an agency may exclude an attorney from representing a subpoenaed witness during an interview, the agency must come forward with "concrete evidence" that counsel's presence would impede its investigation. SEC v. Csapo, 533 F.2d 7, 11 (D.C.Cir.1976). Because the NRC's "rational basis" standard is less rigorous than the "concrete evidence" requirement stated in Csapo, we vacate the attorney exclusion portion of the rule.
The Commission's inspections staff conducts periodic reviews of licensed nuclear facilities to determine their compliance with legal requirements, notably, relevant safety standards. When the inspections staff discovers reason to suspect safety-related wrongdoing, or when the Commission is otherwise so apprised, a separate group within the NRC, the Office of Investigations (OI), conducts an investigation. OI's primary investigatory technique is to interview employees who might have information concerning the apparent wrongdoing. Sometimes these employees come forth voluntarily; frequently, however, OI must secure their attendance at an interview by administrative subpoena.
Persons whom the OI interviews under subpoena are "entitled to be accompanied, represented, and advised by counsel or, if permitted by the agency, by other qualified representative." 5 U.S.C. Sec. 555(b). Because an OI finding of wrongdoing could lead to administrative sanctions against the nuclear facility, or even criminal prosecution by the Department of Justice, companies operating nuclear facilities have often provided counsel for their employees who are interviewed. On at least some occasions, the Commission has found, company attorneys have taken the position that they "would relate to the company all that took place in the interviews." According to the Commission, the presence of such attorneys or other management representatives at interviews has impeded OI's investigations, by "produc[ing] an inherent coercion on the interviewee not to reveal to the NRC information that is potentially detrimental to his employer." 53 Fed.Reg. 45769 (1988).
The NRC decided in November 1988 to address this perceived problem by proposing a rule ensuring that interviews "be conducted in an atmosphere free of outside influences." Id. at 45768. After receiving comments, the Commission published its final rule in January 1990. Under the rule's "sequestration" provision, witnesses and their attorneys are to be separated from other witnesses and attorneys during interviews. Under the "attorney exclusion" provision, where "a reasonable basis exists to believe that an investigation or inspection will be obstructed, impeded, or impaired, either directly or indirectly, by an attorney's representation of multiple interests, the agency official may prohibit that attorney from being present during the interview." Various procedural protections apply to the attorney exclusion provision: first, the interviewing official, within five working days after the exclusion, must give to the witness and her attorney "a written statement of the reasons supporting the decision to exclude"; second, the witness may appeal the exclusion decision to the full Commission; and third, the witness may delay the interview "for a reasonable period of time to permit the retention of new counsel." 10 C.F.R. Sec. 19.18, reported at 55 Fed.Reg. 243, 247-48 (1990).
The "sequestration" portion of the NRC's rule reads:
(a) All witnesses compelled by subpoena to submit to agency interviews shall be sequestered unless the official conducting the interviews permits otherwise.
10 C.F.R. Sec. 19.18(a), reported at 55 Fed.Reg. 247 (1990). "Sequestration" is defined as "the separation or isolation of witnesses and their attorneys from other witnesses and their attorneys during an interview conducted as part of an investigation, inspection, or other inquiry." 10 C.F.R. Sec. 19.3, reported at 55 Fed.Reg. 247 (1990). Petitioners challenge this part of the rule as either too sweeping to survive First Amendment scrutiny, or too inconsequential to survive review for rationality. Neither argument is tenable.
Despite the rule's defining language--that sequestration means separation "during an interview conducted as part of an investigation"--petitioners maintain that, in context, the rule could be construed to impose a vow of silence on every witness throughout the course of an entire investigation. But the Commission, in its Final Rule comments on "Sequestration," expressly stated that the rule, "neither by its terms nor in its intended application, effects a prohibition on the communications or associational rights of witnesses either before or after an interview." 55 Fed.Reg. at 244. Again, on brief, the NRC affirmed: "[T]he provision in no way regulates or restricts witnesses' communications before or after their interviews." Final Brief for Respondents at 13.
Recognizing a point on which the sequestration rule, as written, indeed left room for doubt, the court asked counsel for the Commission at oral argument:
Let's assume that you don't prevail on the attorney disqualification rule, but you do prevail on the sequestration rule. Would that sequestration rule cover the following situation: Attorney A is representing witness X. [After] witness X concludes her testimony, ... witness Y comes in and attorney A is representing witness Y as well.... [D]o you interpret [the sequestration] rule to say you could exclude attorney A because attorney A has already been in an interview situation with a witness?
Counsel responded:
Although the rule as written presently lends itself to that interpretation, your Honor, we would not exclude attorney A from representing the subsequent witness simply because he represented an earlier witness in that same [investigation].
The court, to conclude the colloquy, asked:
So you simply interpret it as, in that very interview, you can isolate the witness?
Counsel replied:
Exactly.
In sum, we take it to be beyond genuine debate, based on the regulatory text and the Commission's representations to this court, that the rule on witness sequestration covers only the isolation of the witness during an interview. It does not extend to pre- or post-interview communications by or with the witness, and it does not apply to multiple representation of witnesses by the same counsel.
A rule that simply limits the contemporaneous participants in the NRC interview to NRC investigators, the witness, and his or her chosen counsel, petitioners apparently concede, does not encounter any First Amendment shoal. Instead, petitioners say, the NRC has always individually interviewed witnesses, so the rule, if it means no more than that, accomplishes nothing, remains "illusory," and should be vacated on that account. See Petitioners' Reply at 6. We see nothing arbitrary or illusory, however, in the Commission's confirmation, by rule, that its investigators may interview...
To continue reading
Request your trial
-
DRG Funding Corp. v. Secretary of Housing and Urban Development
... ... to trigger Chevron deference); Professional Reactor Operator Society v. NRC, 939 F.2d 1047, ... counsel for the Government as much as assured us" that this determination is \"conclusive.\" ... \xC2" ... ...
-
W.Va. Coal Workers' Pneumoconiosis Fund v. Bell, 18-1317
... ... Krantz's decisions denying benefits, and asks us to reinstate them. Page 4 This case raises ... judiciary, not to agencies, see Prof'l Reactor Operator Soc'y v ... U ... S ... Nuclear Regulatory ... ...
-
Cardiosom, L.L.C. v. United States
... ... : April 30, 2014 Chevron Deference; Regulatory Interpretation; Motion to Dismiss for Lack of ... Am. Cetacean Soc'y , 478 U.S. 221, 233 (1986); Chem. Mfrs. Ass'n ... observed: It is true that the statute before us contemplates a regulatory role for the agency ... See, e.g. , Professional Reactor Operator Soc'y v. NRC , 939 F.2d 1047, ... ...
-
Ardestani v. Immigration and Naturalization Service
... ... the reading that Ardestani has urged upon us ... "The starting point ... , 108 L.Ed.2d 585 (1990); see also Professional Reactor Operator Soc. v. NRC, 291 U.S.App.D.C ... ...
-
THE REDISCOVERED STAGES OF AGENCY ADJUDICATION.
...U.S.A., Inc. v. Nat'l Res. Def. Council, Inc., 467 U.S. 837 (1984); cf. Prof 1 Reactor Operator Soc'y v. U.S. Nuclear Reg. Comm'n, 939 F.2d 1047, 1051 (D.C. Cir. 1991) ("The Supreme Court has indicated, however, that reviewing courts do not owe the same deference to an agency's interpretati......