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    United States v. Comley, 1st Cir. (1992)

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    The US Court of Appeals upheld a district court order enforcing an administrative subpoena issued by the Office of Inspector General (OIG) of the Nuclear Regulatory Commission (NRC) as part of its investigation into possible misconduct by an NRC employee. The court found that the OIG has statutory authority under the Inspector General Act to investigate fraud and abuse unrelated to federal spending. It also rejected the claim that enforcing the subpoena would violate the appellant's First Amendment rights of association.

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    United States v. Comley, 1st Cir. (1992)

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    Scribd Government Docs
    28 views7 pages
    The US Court of Appeals upheld a district court order enforcing an administrative subpoena issued by the Office of Inspector General (OIG) of the Nuclear Regulatory Commission (NRC) as part of its investigation into possible misconduct by an NRC employee. The court found that the OIG has statutory authority under the Inspector General Act to investigate fraud and abuse unrelated to federal spending. It also rejected the claim that enforcing the subpoena would violate the appellant's First Amendment rights of association.

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    Filed: 1992-08-31 Precedential Status: Precedential Docket: 92-1208

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    The US Court of Appeals upheld a district court order enforcing an administrative subpoena issued by the Office of Inspector General (OIG) of the Nuclear Regulatory Commission (NRC) as part of its investigation into possible misconduct by an NRC employee. The court found that the OIG has statutory authority under the Inspector General Act to investigate fraud and abuse unrelated to federal spending. It also rejected the claim that enforcing the subpoena would violate the appellant's First Amendment rights of association.

    Copyright:

    Public Domain
    Download as PDF or read online from Scribd
    Download as pdf
    28 views7 pages

    United States v. Comley, 1st Cir. (1992)

    Uploaded by

    Scribd Government Docs
    The US Court of Appeals upheld a district court order enforcing an administrative subpoena issued by the Office of Inspector General (OIG) of the Nuclear Regulatory Commission (NRC) as part of its investigation into possible misconduct by an NRC employee. The court found that the OIG has statutory authority under the Inspector General Act to investigate fraud and abuse unrelated to federal spending. It also rejected the claim that enforcing the subpoena would violate the appellant's First Amendment rights of association.

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    of 7

    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
    _____________________ __________________ __________________
    Public Citizen Litigation Group on brief for Public Citizen Litigat
    _______________________________
    Group, Government Accountability Project, Maine Nuclear Referen
    Committee, Nuclear Information
    and Resource Service,
    Clamsh
    Alliance, Citizens Within the Ten Mile Radius, Don't Waste U.S., R
    Monday Night Meeting Group, New England Green Alliance, Citizen Ale
    Don't Waste N.Y., Seacoast Anti-Pollution League, North East Coalit

    on
    Nuclear
    Pollution,
    Citizen's Awareness
    Network,
    Natio
    Whistleblower Center, Citizens At Risk, Task Force Coventry, Har
    Wasserman, Don't Waste CT, Georgians Against Nuclear Energy, Peopl
    Action for Clean Energy, Our Town Our Planet, Radioactive Wa
    Campaign, Trap Rock, Nuclear Energy Information Service, Citi
    Environmental Coalition, Citizens Against Radioactive Dumping,
    Connecticut Opposed to Waste, amici curiae.
    Paul G. Levenson, Assistant United States Attorney, with whom
    ________________
    John Pappalardo, United States Attorney, Roberta T. Brown, Assist
    _______________
    _________________
    United States Attorney, John Cordes, Solicitor, United States Nucl
    ____________
    Regulatory Commission, and Carole F. Kagan, Attorney, United Sta
    ________________
    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

    th

    district court enforcing an administrative subpoena issued by the

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


    Agency ("NRC").
    same

    The subpoena at issue in this

    tape recorded

    conversations

    investigation as an earlier
    of

    and arises

    appeal seeks the


    out

    subpoena issued by the

    Inspector and Auditor ("OIA")

    and enforced by

    of the

    same

    NRC's Office

    this Court in

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


    _____________
    ______

    Appellant

    contends that

    the OIG

    lacks

    subpoena and also claims,


    subpoena,

    statutory authority

    as he did with respect to

    that it violates his first

    of association.

    For

    to issue

    the

    the earlier

    amendment right to freedom

    the reasons discussed below, we

    affirm the

    district court's order enforcing the subpoena.


    Based on a
    appellant

    and

    concluded

    that

    review of two
    a

    senior
    the

    tape recorded

    NRC employee,

    employee

    may have

    conversations betwee

    the

    NRC

    investigators

    disclosed

    confidential

    information to appellant and that the employee may have failed to


    pass on

    to other officials relevant

    from the appellant.

    safety information received


    In an

    effort to

    investigate further, OIA issued a subpoena seeking the

    tapes for

    an

    Comley, 890 F.2d at


    ______

    additional fifty

    Although

    541.

    conversations recorded

    this Court

    affirmed a

    by appellant.

    district court

    Id.
    ___

    order enforcing

    that subpoena, appellant never complied with the subpoena and was
    ultimately fined $135,000.
    responsibility

    for

    subpoena,

    one at

    the

    the

    In

    December 1989,

    investigation.
    issue in

    the

    It

    the OIG
    issued

    instant appeal,

    assumed
    a

    second

    after the

    district court determined that the earlier subpoena had expired.

    We need not

    again review the

    role of

    a court

    in a

    subpoen

    enforcement proceeding, but proceed directly to appellant's first


    argument.

    See id. (discussing standards governing enforcement of


    ___ ___

    subpoenas).

    He

    U.S.C. app.
    concerning

    asserts that

    6(a)(4)
    the

    (1988),

    expenditure

    interpreting this

    the OIG's

    encompasses only

    of

    federal

    provision begins

    F.2d 1114,

    States v. James, 478


    ______
    _____
    v.

    Patterson, 456
    _________

    Inspectors

    app.

    6(a)(4)

    The

    task

    of

    statutory language

    Securities Indus. Ass'n v.


    _______________________

    (1st Cir.

    1989) (citing

    United
    ______

    U.S. 597, 604 (1986); American Tobacco Co.


    _____________________
    U.S.

    General to

    performance of the

    1118

    investigations

    funds.

    with the

    which we accord its ordinary meaning.


    Connolly, 883
    ________

    subpoena authority,

    63, 68
    issue

    (1982)).

    subpoenas when

    functions assigned
    (1988).

    Congress

    From

    authorized

    "necessary in

    by this Act."

    that

    subsection

    the

    U.S.C.

    appellant's

    construction derives no support.


    Turning to the substantive provisions referenced in section
    they

    also provide

    functions

    are defined

    Inspector General
    agency

    no assistance

    activities

    in

    to appellant.1

    section

    which imposes

    the responsibility, inter alia,


    _____ ____
    for the

    "purpose

    The

    of

    relevant
    upon

    each

    (1) to review

    promoting economy

    and

    ____________________

    1/To the extent appellant claims OIG's subpoena power is narro


    _
    than its oversight responsibilities, he is plainly wrong. Neither
    language of
    section 6(a)(4) nor
    the case law
    supports t

    proposition.

    United States v. Aero Mayflower Transit Co., 831 F


    _____________
    ___________________________
    1142, 1145 (D.C. Cir. 1987) (describing Inspector General's subpo
    power as "coextensive" with its investigative authority); Uni
    ___
    States v. Westinghouse Elec. Corp., 788 F.2d 164, 170 (3d Cir. 19
    ______
    _________________________
    (rejecting "constricted interpretation" of subpoena power).
    -3-

    efficiency in the administration


    fraud and abuse in,"
    and

    the same, and (2) "to keep .

    . . [the NRC]

    Congress fully and currently informed . . . concerning fraud

    and other serious problems,


    the

    of, or preventing and detecting

    abuses, and deficiencies relating to

    administration of programs

    4(a)(3),

    (a)(5)

    requirement

    that

    expenditure

    (1988).

    and operations."
    Nothing therein

    investigations

    of federal

    funds.

    even

    specifically
    Indeed, the

    5 U.S.C. app.
    suggests

    relate

    to

    the

    language expresses

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


    correct
    precisely

    and
    the

    conversations

    prevent problems
    object

    of

    between

    Furthermore, resort

    to

    in

    agency operations.

    appellee's
    appellant

    the

    legitimacy of an Inspector

    investigation
    and

    legislative

    the

    into

    NRC

    history

    to federal funds.

    the

    employee.

    confirms

    General examining specific

    of employee misconduct unrelated

    That is

    S.

    the

    instances

    Rep. No.

    1071, 95th Cong., 2d Sess. 28,


    & Admin. News 2676, 2703
    may

    involve itself

    in

    reprinted in 1978 U.S. Code Cong.


    ____________

    (stating by way of example that


    employee misconduct

    disbursement of federal funds).


    possesses statutory authority

    an OIG

    not concerning

    the

    Therefore, the Inspector General


    to conduct this

    investigation and

    issue a subpoena in furtherance thereof.


    Appellant's
    arguments.

    first amendment

    claim

    Accordingly, we reject

    raises no

    new

    it for the reasons

    issues

    expressed

    in

    -4-

    our decision regarding the

    first subpoena.

    Comley, 890
    ______

    F.2d at

    543-45.2
    The district court's order enforcing the subpoena is
    The mandate shall issue forthwith.

    Affirmed
    ________

    ____________________

    2/We decline to consider the additional arguments raised


    _
    amici. United Parcel Serv. v. Mitchell, 451 U.S. 56, 60 n.2 (198
    ____________________
    ________
    McCoy v. Massachusetts Inst. of Technology, 950 F.2d 13, 23
    _____
    ___________________________________
    (1991), cert. denied, ___ U.S. ___, 112 S. Ct. 1939 (1992).
    ____ ______
    -5-

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