United States v. Comley

• Court: Court of Appeals for the First Circuit
• Decided: August 31, 1992
• Docket: 92-1208
• Status: Published

Opinion

USCA1 Opinion

August 31, 1992         [NOT FOR PUBLICATION]

                            UNITED STATES COURT OF APPEALS
                                FOR THE FIRST CIRCUIT
                                 ____________________

        No. 92-1208

                              UNITED STATES OF AMERICA,
                                Petitioner, Appellee,

                                          v.

                                  STEPHEN B. COMLEY,
                                Respondent, Appellant.
                                 ____________________

               APPEAL FROM AN ORDER OF THE UNITED STATES DISTRICT COURT
                          FOR THE DISTRICT OF MASSACHUSETTS

                     [Hon. Robert E. Keeton, U.S. District Judge]
                                             ___________________
                                 ____________________

                                        Before

                         Torruella and Selya, Circuit Judges,
                                              ______________
                             and Zobel,* District Judge.
                                         ______________
                                 ____________________

             Ernest C. Hadley for appellant.
             ________________
             Leslie  A.  Brueckner, Patti  A.  Goldman, Alan  B.  Morrison and
             _____________________  __________________  __________________
        Public Citizen Litigation Group on brief for Public Citizen Litigation
        _______________________________
        Group, Government  Accountability  Project, Maine  Nuclear  Referendum
        Committee,  Nuclear  Information   and  Resource  Service,   Clamshell
        Alliance,  Citizens Within the Ten Mile Radius, Don't Waste U.S., Rowe
        Monday Night Meeting Group, New England Green Alliance, Citizen Alert,
        Don't Waste N.Y., Seacoast Anti-Pollution League, North East Coalition
        on   Nuclear   Pollution,   Citizen's  Awareness   Network,   National
        Whistleblower Center,  Citizens At  Risk, Task Force  Coventry, Harvey
        Wasserman, Don't Waste CT,  Georgians Against Nuclear Energy, People's
        Action for  Clean  Energy,  Our  Town Our  Planet,  Radioactive  Waste
        Campaign,  Trap  Rock,  Nuclear  Energy  Information Service,  Citizen
        Environmental  Coalition,  Citizens Against  Radioactive  Dumping, and
        Connecticut Opposed to Waste, amici curiae.
             Paul G. Levenson, Assistant United States Attorney,  with whom A.
             ________________                                               __
        John Pappalardo,  United States Attorney, Roberta  T. Brown, Assistant
        _______________                           _________________
        United States Attorney, John  Cordes, Solicitor, United States Nuclear
                                ____________
        Regulatory Commission,  and Carole  F. Kagan, Attorney,  United States
                                    ________________
        Nuclear Regulatory Commission, were on brief for appellee.
                                 ____________________

                                 ____________________

        _____________________

* Of the District of Massachusetts, sitting by designation. 

             Per Curiam.   Stephen B. Comley  appeals from an  order of  the
             __________

          district court enforcing an administrative subpoena issued by the

          Office of the Inspector General ("OIG") of the Nuclear Regulatory

          Agency ("NRC").   The subpoena at issue in this  appeal seeks the

          same  tape recorded  conversations  and arises  out  of the  same

          investigation as an earlier  subpoena issued by the  NRC's Office

          of  Inspector and Auditor ("OIA")  and enforced by  this Court in

          United States v. Comley, 890 F.2d 539 (1st Cir. 1989).  Appellant
          _____________    ______

          contends that  the OIG  lacks  statutory authority  to issue  the

          subpoena and also claims,  as he did with respect to  the earlier

          subpoena,  that it violates his first  amendment right to freedom

          of association.  For  the reasons discussed below, we  affirm the

          district court's order enforcing the subpoena.

             Based on a  review of two  tape recorded  conversations between

          appellant  and  a  senior  NRC employee,  the  NRC  investigators

          concluded  that  the  employee  may have  disclosed  confidential

          information to appellant and that the employee may have failed to

          pass on  to other officials relevant  safety information received

          from the appellant.   Comley, 890 F.2d at  541.  In an  effort to
                                ______

          investigate further, OIA issued a subpoena seeking the  tapes for

          an  additional fifty  conversations recorded  by appellant.   Id.
                                                                        ___

          Although  this Court  affirmed a  district court  order enforcing

          that subpoena, appellant never complied with the subpoena and was

          ultimately fined $135,000.   In  December 1989,  the OIG  assumed

          responsibility  for  the  investigation.    It  issued  a  second

          subpoena,  the  one at  issue in  the  instant appeal,  after the

district court determined that the earlier subpoena had expired.

             We need not  again review the  role of  a court  in a  subpoena

          enforcement proceeding, but proceed directly to appellant's first

          argument.  See id. (discussing standards governing enforcement of
                     ___ ___

          subpoenas).   He  asserts that  the OIG's  subpoena authority,  5

          U.S.C. app.    6(a)(4)  (1988),  encompasses only  investigations

          concerning  the  expenditure  of  federal  funds.   The  task  of

          interpreting this  provision begins  with the  statutory language

          which we accord its ordinary meaning.  Securities Indus. Ass'n v.
                                                 _______________________

          Connolly, 883  F.2d 1114,  1118  (1st Cir.  1989) (citing  United
          ________                                                   ______

          States v. James, 478  U.S. 597, 604 (1986); American  Tobacco Co.
          ______    _____                             _____________________

          v.  Patterson, 456  U.S.  63, 68  (1982)).   Congress  authorized
              _________

          Inspectors  General to  issue  subpoenas when  "necessary in  the

          performance of the  functions assigned  by this Act."   5  U.S.C.

          app.     6(a)(4)  (1988).     From  that  subsection  appellant's

          construction derives no support. 

             Turning to the substantive provisions referenced in section  6,

          they  also provide  no assistance  to appellant.1   The  relevant

          functions  are defined  in  section  4  which imposes  upon  each

          Inspector General  the responsibility, inter alia,  (1) to review
                                                 _____ ____

          agency  activities  for the  "purpose  of  promoting economy  and

____________________

             1/To the extent appellant claims OIG's subpoena power is narrower
             _
        than its oversight responsibilities, he is plainly wrong.  Neither the
        language  of   section  6(a)(4)  nor   the  case  law   supports  that
        proposition.   United States v.  Aero Mayflower Transit  Co., 831 F.2d
                       _____________     ___________________________
        1142, 1145  (D.C. Cir. 1987) (describing  Inspector General's subpoena
        power  as  "coextensive"  with its  investigative  authority);  United
                                                                        ______
        States v. Westinghouse Elec.  Corp., 788 F.2d 164, 170  (3d Cir. 1986)
        ______    _________________________
        (rejecting "constricted interpretation" of subpoena power).

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efficiency in the administration  of, or preventing and detecting

          fraud and abuse in,"  the same, and (2) "to keep .  . . [the NRC]

          and  Congress fully and currently informed . . . concerning fraud

          and other serious problems,  abuses, and deficiencies relating to

          the  administration of programs  and operations."   5 U.S.C. app.

            4(a)(3),  (a)(5)  (1988).    Nothing therein  even  suggests  a

          requirement   that  investigations  specifically  relate  to  the

          expenditure  of federal  funds.   Indeed, the  language expresses

          Congress's intent that Inspectors General shall work to identify,

          correct  and  prevent problems  in  agency operations.    That is

          precisely  the  object  of  appellee's  investigation   into  the

          conversations   between   appellant   and   the   NRC   employee.

          Furthermore, resort  to  the  legislative  history  confirms  the

          legitimacy of an Inspector  General examining specific  instances

          of employee misconduct unrelated  to federal funds.  S.  Rep. No.

          1071, 95th Cong., 2d Sess. 28,  reprinted in 1978 U.S. Code Cong.
                                          ____________

          & Admin. News 2676, 2703  (stating by way of example that  an OIG

          may  involve itself  in  employee misconduct  not concerning  the

          disbursement of federal funds).  Therefore, the Inspector General

          possesses statutory authority  to conduct this  investigation and

          issue a subpoena in furtherance thereof.

             Appellant's  first amendment  claim  raises no  new  issues  or

          arguments.  Accordingly, we reject  it for the reasons  expressed

          in

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our decision regarding the  first subpoena.  Comley, 890  F.2d at
                                                       ______

          543-45.2

             The district court's order enforcing the subpoena is  Affirmed.
                                                                   ________

          The mandate shall issue forthwith.

____________________

             2/We  decline  to consider  the  additional  arguments raised  by
             _
        amici.  United  Parcel Serv. v. Mitchell, 451 U.S.  56, 60 n.2 (1981);
                ____________________    ________
        McCoy  v. Massachusetts  Inst.  of Technology,  950  F.2d 13,  23  n.9
        _____     ___________________________________
        (1991), cert. denied, ___ U.S. ___, 112 S. Ct. 1939 (1992).
                ____  ______

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