DATE ISSUED: 15 September 1987
Case No.: 87-ERA-00036

In the Matter of

W. ALLAN YOUNG,
    Complainant

    v.

PHILADELPHIA ELECTRIC COMPANY,
    Respondent

   This case is before me pursuant to a whistleblower complaint filed by W. Allan Young against the Philadelphia Electric Company (PECO) under the Energy Reorganization Act of 1974, 42 U.S.C. § 5851 (ERA). The Complainant alleges that the Philadelphia Electric Company discriminated against him for engaging in a protected activity in violation of the ERA. This is the fifth related complaint filed by the Complainant. Each of these complaints involves allegations of wrongful discharges for reporting conditions that could lead to or cause violations of the Nuclear Regulatory Commission's regulations or unnecessary exposure to radiation at PECO's Peach Bottom Atomic Power Station. In the first three complaints PECO, was not named as a party and was not charged with anywrong doing under the Act. However, PECO was named as a party in both the fourth and fifth complaints filed by the Complainant.

   Since all 5 cases are interconnected, the Respondent maintains that in order to adequately prepare its defense in this case, it requires the investigatory reports and related the documents for the previously filed complaints from the U.S. Department of Labor. To obtain such material, the Respondent filed a Freedom of Information Act request. Although some of

the material was received, the Respondent found what was received unsatisfactory because portions were excised, and they desired a further explanation of these documents.

   In order to get access to these documents and to get a further explanation of them, the Respondent requested that subpoenas duces tecum be issued. The subpoenas were issued under the signature of Chief Administrative Law Judge Nahum Litt and were served on Michael J. Corcoran, the Area Director, and Scott Royer, an investigator for Employment Standards Administration, Wage-Hour Division of the United States Department of Labor in Wilkes Barre, Pennsylvania, on August 4, 1987. The subpoenas required that Corcoran and Royer furnish documents related to the previous complaints filed by the Complainant and to testify a deposition scheduled for Friday August 7, 1987, in Philadelphia, Pennsylvania.

   Mr. Corcoran and Mr. Royer attended the scheduled deposition on August 7, 1987, but on advice of the Deputy Regional Solicitor, declined to answer any questions or produce any documents. On the same day, the Regional Solicitor filed a motion to vacate and quash the subpoenas.

   The Solicitor raises four points in his motion to vacate and quash the subpoenas. However, in his memorandum in support his motion, the Solicitor essentially argues that the Office of Administrative Law Judges is without authority to issue subpoenas under the Energy Reorganization Act and Department of Labor employees cannot be compelled to answer subpoenas because of the "Housekeeping Regulations," found at 29 C.F.R. § 220 et seq.

   The Department of Labor regulations at 29 C.F.R. § 18.24 provide that the Chief Administrative Law Judge or the presiding administrative law judge may issue subpoenas as authorized by statute or law upon written application of a party requiring attendance of witnesses and production of relevant papers, books, documents or tangible things in their possession and under their control. The Whistleblower provisions, section 210, of the ERA 42 U.S.C. § 5851 mention no specific authority to

issue subpoenas. However, the analysis cannot stop here, without a further inquiry into the legislative history of section 210 to see if Congress in fact intended to grant subpoena power. As the Respondent points out, the legislative history of section 210 of the ERA, indicates that the amendment is substantially identical to similar provisions in the Clean Air Act and the Federal Water Pollution Control Act. The legislative history of those acts indicate that such provisions were patterned after the National Labor Management Act and a similar provision in Public Law 91-174 in the Federal Coal Mine Health and Safety Act. See Senate Report No. 95-848 reprinted in 1978 U.S. Code Cong. and Ad. News 7303. Under the National Labor Relations Act, Congress provided that the National Labor Relations Board shall upon the application of any party have the power to issue subpoenas requiring the attendance and the testimony of witnesses or the production of evidence. 29 U.S.C. § 161. Similarly, under the Federal Coal Mine Health and Safety Act, the Secretary of the Interior has the authority to issue subpoenas for the attendance and testimony of witnesses and production of the documents. 30 U.S.C. § 813(b).

   Since Congress modeled § 210 of the ERA after the employee protection provisions of these two statutes, it seems apparent that Congress envisioned it operating a similar manner. As the subpoena power is a integral part of these two earlier pieces of legislation then it appears that Congress also intended for the Secretary of Labor to have subpoena power in investigating and hearing complaints of employee discrimination under the whistleblower provisions of section 210 of the ERA.

   Moreover, if this tribunal did not have subpoena power to compel the testimony of witnesses and the production of documents in the ERA cases, its decisions would be subject to attack on due process grounds. Due process requires that parties have every opportunity to develop evidence through the inspection of documents and cross-examination of witnesses, in cases such as this which involve potential government imposed sanctions.

   I also note that § 18.1 of the Rules of Practice and Procedure before the office of Administrative Law Judges indicates that in any situation not provided for or controlled by these rules or statute, executive order, or regulation, that the Rules of Civil Procedure for the District Courts of the United States shall be applied. 29 C.F.R. § 18.1. There is no specific

provision which restricts the power of the office of the Administrative Law Judges to issue subpoenas in section 210 cases. In the absence of such an expressed provision prohibiting the issuance of subpoena, I will follow the dictates of Rule 45 of the Federal Rules of Civil Procedure, which empower the Court to issue subpoenas for the production of documentary evidence and for taking depositions. F. R. Civ. P. Rule 45, 28 U.S.C.A.

   For the reasons stated above, I am persuaded that the office of Administrative Law Judges does have the authority to issue subpoena under section 210 of the ERA.

   The Solicitor's second basic argument in support of its motion to quash is that the Department of Labor official can refuse to comply with the subpoenas because of the Secretary's housekeeping regulations found at 29 C.F.R. § § 2.20 - 2.25. These regulations were issued pursuant to 5 U.S.C. § 301 to control the method of disclosing information in the department's official files.

   Under these regulations, a Department of Labor employee who is served with a subpoena for records or testimony is required to notify the appropriate office of the Solicitor immediately. 29 C.F.R. § 2.21. The party causing the subpoena to be issued is also required to provide the office of the Solictor with a written summary of the information sought and its relevance to the proceeding in connection which it was served.

   No Department of Labor employee may respond to any subpoena, produce or disclose any information without the approval of the appropriate Deputy Solicitor of Labor. If the employee is instructed not to disclose the subpoenaed information, but the Court nevertheless insists upon compliance, the employee upon whom the demand has been made shall respectively decline to comply with the demand. 29 C.F.R. § 2.24.

   The validity of these types of regulations have been upheld. United States ex rel Touhey v. Ragen, 340 U.S. 462 (1951) (hence name source of the "Touhey" regulations). In

the Touhey case, the Supreme Court ruled that employees of the Department of Justice should not be held in contempt for declining to disclose information in obedience of the Attorney General's standing order not to disclose. However, the Court did not reach the issue of whether the Attorney General could refuse to produce papers in his possession.

   Accordingly, the Solicitor has misconstrued the purpose and effect of these Touhey regulations. The validation of the regulations rests directly on the theory that as a matter of internal management the head of an agency is authorized to reserve to himself the authority to release records. NLRB v. Capitol Fish Company, 244 F.2d 868 (1961). Cases upholding such regulations do purport to grant an absolute freedom to the executive to prevent the use of department papers as evidence. NLRB v. Capitol Fish Company, supra.

   Similar housekeeping regulations do not authorize the withholding of information from the public or limiting the availability of records to the public. Committee for Nuclear Responsibility Inc. v. Seaborg, 463 F.2d 788, 793 (1971). Any justification for excluding government records must rest solely upon the assertion that such material is privileged. NLRA v. Capital Fish I supra. The housekeeping regulations do not enact a privilege for official information. Marcoux v. Mid States Livestock, 66 FRD 573 (1975). Here the Solicitor has not asserted any claim that information sought is privileged.

   It is generally understood that housekeeping regulations were intended to minimize governmental involvement in controversial matters unrelated to official business. Reynold Metal Co. v. Crowther, 572 F. Supp. 288, 290 (D. Mass. 1982). It is highly significant that this case does not involve private litigation before a foreign tribunal, but is directly related to the official business of the Department of Labor, and the case is before the Secretary through a designated administrative law judge. The Secretary has a statutory duty to investigate and to hear complaints of discrimination arising under § 210 of the ERA. Failure to disclose the material sought can only serve to frustrate the carrying out of the Secretary's statutory duties.

   There is no indication compliance with the subpoena would be excessively burdensome to the Department. Any such burden imposed on the Department must be outweighed by the requirement

of ensuring due process to the parties in this matter.

   Although the Secretary has provided certain. documents sought by the Respondent under the Freedom of Information Act, this is an incomplete remedy which would frustrate the Respondent's discovery rights because certain material has been deleted under an exemption to the Freedom of Information Act and further explanation of these documents requires the taking of depositions. Material which is exempt under the Freedom of Information Act is not necessarily privileged for the purposes of discovery. Pleasant-Hill Bank v. United States, 58 FRD 97 (1973).

   Although by virtue of the Touhey regulations, Mr. Corcoran and Mr. Royer cannot be held in contempt for failing to comply with issued subpoenas, as they were instructed not to, the Department still does not have the authority to withhold the material sought by PECO in this matter. Accordingly, the motion to Quash and Vacate the Subpoenas is DENIED.

       FRANK J. MARCELLINO
      Administrative Law Judge

Washington, D.C.