United States v. Comley
U.S. Court of Appeals for the First Circuit
United States v. Comley
Opinion
USCA1 Opinion
August 31, 1992 [NOT FOR PUBLICATION]
UNITED STATES COURT OF APPEALS
FOR THE FIRST CIRCUIT
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No. 92-1208
UNITED STATES OF AMERICA,
Petitioner, Appellee,
v.
STEPHEN B. COMLEY,
Respondent, Appellant.
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APPEAL FROM AN ORDER OF THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MASSACHUSETTS
[Hon. Robert E. Keeton, U.S. District Judge]
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Before
Torruella and Selya, Circuit Judges,
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and Zobel,* District Judge.
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Ernest C. Hadley for appellant.
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Leslie A. Brueckner, Patti A. Goldman, Alan B. Morrison and
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Public Citizen Litigation Group on brief for Public Citizen Litigation
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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.
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John Pappalardo, United States Attorney, Roberta T. Brown, Assistant
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United States Attorney, John Cordes, Solicitor, United States Nuclear
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Regulatory Commission, and Carole F. Kagan, Attorney, United States
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Nuclear Regulatory Commission, were on brief for appellee.
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* Of the District of Massachusetts, sitting by designation.
Per Curiam. Stephen B. Comley appeals from an order of the
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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
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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
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investigate further, OIA issued a subpoena seeking the tapes for
an additional fifty conversations recorded by appellant. Id.
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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
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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.
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Connolly, 883 F.2d 1114, 1118 (1st Cir. 1989) (citing United
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States v. James, 478 U.S. 597, 604 (1986); American Tobacco Co.
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v. Patterson, 456 U.S. 63, 68 (1982)). Congress authorized
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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
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agency activities for the "purpose of promoting economy and
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1/To the extent appellant claims OIG's subpoena power is narrower
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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
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1142, 1145 (D.C. Cir. 1987) (describing Inspector General's subpoena
power as "coextensive" with its investigative authority); United
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States v. Westinghouse Elec. Corp., 788 F.2d 164, 170 (3d Cir. 1986)
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(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.
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& 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
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543-45.2
The district court's order enforcing the subpoena is Affirmed.
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The mandate shall issue forthwith.
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2/We decline to consider the additional arguments raised by
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amici. United Parcel Serv. v. Mitchell, 451 U.S. 56, 60 n.2 (1981);
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McCoy v. Massachusetts Inst. of Technology, 950 F.2d 13, 23 n.9
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(1991), cert. denied, ___ U.S. ___, 112 S. Ct. 1939 (1992).
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