U.S. v. Comley, 89-1680

• Citation: 890 F.2d 539
• Decision Date: 07 November 1989
• Docket Number: No. 89-1680,89-1680
• Parties: UNITED STATES of America, Petitioner, Appellee, v. Stephen B. COMLEY, Respondent, Appellant. . Heard
• Court: United States Courts of Appeals. United States Court of Appeals (1st Circuit)

Page 539

890 F.2d 539

UNITED STATES of America, Petitioner, Appellee, v. Stephen B. COMLEY, Respondent, Appellant.

No. 89-1680.

United States Court of Appeals First Circuit.

Heard Nov. 7, 1989.

Decided Nov. 29, 1989.

Ernest C. Hadley, Wareham, Mass., for respondent, appellant.

Paul G. Levenson, Asst. U.S. Atty., Somerville, Mass., with whom Wayne A. Budd, U.S. Atty., Boston, Mass., was on brief for petitioner, appellee.

Before BOWNES, BREYER and SELYA, Circuit Judges.

BOWNES, Circuit Judge.

This is an appeal from an order of the district court enforcing an administrative subpoena served on appellant Stephen B. Comley by the Nuclear Regulatory Commission ("NRC" or "Commission"). The subpoena seeks tape recordings or transcripts prepared by Comley of telephone conversations between Comley and an NRC employee who is the subject of an NRC investigation. Comley challenges the Commission's authority to issue the subpoena and also contends that the subpoena violates his first amendment right to freedom of association. For the reasons discussed below, we affirm the district court's order enforcing the subpoena.

I. BACKGROUND

In August, 1988, the NRC's Office of Inspector and Auditor ("OIA") received allegations that an employee in the NRC's Office of Investigations ("OI") had committed various acts of misconduct. The allegations were made by Douglas Ellison, a former employee at the Nine Mile Point nuclear power facility in Lycoming, New York. Ellison claimed, among other things, that the NRC employee had disclosed confidential NRC information to appellant Comley, a private citizen.

Ellison provided the OIA with a tape recording of two conversations that allegedly took place between the NRC employee and Comley. Administrative Judge Alan Rosenthal, who was placed in charge of the NRC's investigation, reviewed the tape and concluded from it that the NRC employee may have disclosed confidential NRC information to Comley and may also have failed to disclose to other NRC officials relevant information that he had received from Comley. Based on Ellison's statement that Comley may have recorded as many as fifty conversations between himself and the employee, the Commission issued a subpoena duces tecum to Comley for tapes of conversations between himself and the employee, or transcripts of such conversations. Comley moved the Commission to quash the subpoena, but this motion was denied. After Comley gave notice of his refusal to comply with the subpoena, the United States petitioned for enforcement in federal district court. Following a hearing, the district court entered an order enforcing the NRC's subpoena. The court concluded that the subpoena was regular on its face, issued for valid purposes, and not violative of Comley's first amendment right to freedom of association. Comley now appeals that decision. ¹

II. STANDARDS GOVERNING THE ENFORCEMENT OF SUBPOENAS

In general, an agency subpoena is enforceable if it is for a proper purpose authorized by Congress, the information sought is relevant to that purpose and adequately described, and statutory procedures are followed in the subpoena's issuance. See, e.g., United States v. Powell, 379 U.S. 48, 57-58, 85 S.Ct. 248, 254-55, 13 L.Ed.2d 112 (1964); United States v. Tivian Laboratories, Inc., 589 F.2d 49, 54 (1st Cir.1978), cert. denied, 442 U.S. 942, 99 S.Ct. 2884, 61 L.Ed.2d 312 (1979). The role of a court in a subpoena enforcement proceeding is strictly limited to inquiring whether the above requirements have been met. "Such proceedings are designed to be summary in nature. As long as the investigation is within the agency's authority, the subpoena is not too indefinite, and the information sought is reasonably relevant, the district court must enforce an administrative subpoena." EEOC v. Tempel Steel Co., 814 F.2d 482, 485 (7th Cir.1987) (citations omitted); see also FTC v. Monahan, 832 F.2d 688, 689 (1st Cir.1987), cert. denied, 485 U.S. 987, 108 S.Ct. 1289, 99 L.Ed.2d 500 (1988); United States v. Westinghouse Elec. Corp., 788 F.2d 164, 166 (3d Cir.1986); EEOC v. Maryland Cup Corp., 785 F.2d 471, 475-76 (4th Cir.), cert. denied, 479 U.S. 815, 107 S.Ct. 68, 93 L.Ed.2d 26 (1986). Furthermore, the affidavits of government officials have been accepted as sufficient to make out a prima facie showing that these requirements are satisfied. See United States v. Lawn Builders of New England, Inc., 856 F.2d 388, 391-92 (1st Cir.1988); Kerr v. United States, 801 F.2d 1162, 1163-64 (9th Cir.1986).

Measured against these general standards, the NRC has made an adequate prima facie showing to support enforcement of its subpoena. First, the Commission has articulated a proper purpose for issuing the subpoena. Congress has vested the NRC with the authority to issue subpoenas in conjunction with investigations that the NRC deems necessary to protect public health or to minimize danger to life or property in matters involving nuclear materials. 42 U.S.C. Sec. 2201(c) (1982). It is precisely this objective of protecting public health and safety that the Commission has given as one of the purposes underlying its subpoena of the tape recordings at issue. The affidavit of Administrative Judge Rosenthal states that the information he has reviewed thus far leads him to suspect that the NRC employee under investigation may have received relevant information from Comley that NRC regulations required him to report to his superiors. Specifically, an NRC regulation requires OI employees to keep NRC officers currently apprised of information received that pertains to public health and safety in matters involving nuclear materials. 10 C.F.R. Sec. 1.27(f) (1989). If the NRC employee under investigation received such information from Comley and failed to relay it to his superiors, such misconduct clearly implicates the effective functioning of the NRC in its duty to protect public health and safety. A subpoena issued as part of an investigation into such alleged misconduct thus is supported by a proper agency purpose.

The Rosenthal affidavit also states that the information reviewed thus far indicates that the NRC employee may have divulged confidential NRC information to Comley. Depending on the information involved, this conduct might compromise the security of certain nuclear power facilities in the country. For this reason as well, the Commission's investigation implicates public health and safety concerns in nuclear matters and provides a proper purpose for the issuance of the challenged subpoena.

Having made a prima facie showing of proper purpose, the Commission then must show that the information sought by the subpoena is reasonably relevant to the purpose of the investigation, and that the subpoena itself is not too indefinite. There can be little doubt that the tape recordings sought by the subpoena are relevant to the purpose of the Commission's investigation. The Commission's objective is to uncover any misconduct relating to the NRC employee's conversations with Comley. The tape recordings of these conversations certainly are relevant to this investigation. Second, the subpoena itself is not too indefinite. It specifically requests tape recordings or transcripts of tape recordings of conversations between Comley and the NRC employee. There is little that is indefinite in this request. We thus find that the NRC has made an adequate prima facie showing to support enforcement of its subpoena.

III. CHALLENGES TO ENFORCEMENT OF THE SUBPOENA

Comley challenges the subpoena's enforcement on two grounds. First, he contends that the Commission lacked authority to issue the subpoena. Second, even if the Commission had authority, Comley argues that the subpoena's enforcement would violate his first amendment right to freedom of association. We consider each of these arguments in turn.

A. Commission's Authority to Issue Subpoena

Comley's challenge to the Commission's authority to issue the subpoena essentially is a challenge to the Commission's professed "public health and safety" motivations for investigating the NRC employee in question. Comley contends that the Commission is motivated only by bad faith in its investigation of the employee. He alleges that there is some sort of vendetta within the NRC to get rid of this employee, and that it is this vendetta rather than any concern for public health and safety that is motivating the investigation.

If Comley's assertions were supported by firm evidence, then we would have adequate justification to deny enforcement of the subpoena. "[I]f a subpoena is issued for an improper purpose, such as harrassment [sic], its enforcement constitutes an abuse of the court's process." United States v. Westinghouse Elec. Corp., 788 F.2d at 166-67. Comley, however, has produced no firm evidence of such abuses. True, he has made forceful allegations about the bad faith of certain NRC officials. These officials, though, are no longer involved in the investigation. Administrative Judge Rosenthal is now conducting the investigation, and Comley has made no assertions questioning Rosenthal's impartiality. In the absence of firm evidence of bad faith, it is not our role "to intrude into the investigative agency's function." SEC v. Howatt, 525 F.2d 226, 229 (1st Cir.1975).

Comley has asked for discovery and an evidentiary hearing to explore more thoroughly the issue of the Commission's bad faith. The district court denied this request and we affirm the denial. " 'Except in extraordinary circumstances ..., discovery is improper in a summary subpoena enforcement proceeding.' " FTC v. Carter, 636 F.2d 781, 789 (D.C.Cir.1980) (quoting United States v. Exxon, 628 F.2d 70, 77 n. 7 (D.C.Cir.1980)). Such requests "are not looked upon favorably ...; nor are appellate courts inclined to reverse the denial of discovery by a district judge for anything but an abuse of discretion." Id.; see also United States v. Aero Mayflower Transit Co., 831 F.2d 1142, 1146-47 (...