The opinion of the court was delivered by: HOGAN
The United States of America petitions to enforce a Nuclear Regulatory Commission subpoena to compel an attorney for the Government Accountability Project, Billie Pirner Garde, to disclose any and all information, including client identities, in her possession concerning the safety of a nuclear power project in Texas. The Court finds that the subpoena is not narrowly drawn to avoid unnecessary abridgement of constitutionally protected associational rights. Accordingly, the petition shall be denied.
The Governmental Accountability Project (GAP) is a nonprofit organization which has been an advocate on behalf of "whistleblowers" on safety-related issues at various nuclear power projects. In the past, GAP has been able to reach accommodations with the Nuclear Regulatory Commission (NRC) permitting safety information and allegations in GAP's hands to reach appropriate government officials.
Once our preliminary investigation is complete, we plan to issue a formal public report. Unfortunately, in the interim, we cannot advise our clients or those we work with to provide their concerns to the Region IV office of the NRC. Our experience has been (and recently released internal agency reports confirm) that the Arlington office is either unable or unwilling to comply with its regulatory requirements as outlined in governing agency procedures.
Thus, unless the NRC is willing to provide independent inspectors to process the allegations pursuant to internal NRC regulations, GAP will provide the allegations directly to the state Attorney General office, and/or to the appropriate congressional committees, and/or to other regulatory or municipal bodies which have an interest in ensuring that the South Texas plant is designed, constructed, and financed in a manner that protects the public.
An exchange of letters followed between Ms. Garde and Mr. Stello, who insisted that Region IV was the proper forum for GAP's information and expressed his unreserved confidence in that office. The tone of the letters, never lofty, deteriorated rapidly. Ms. Garde accused Mr. Stello of "bureaucratic posturing" and declared that "we would be irresponsible if we led more whistleblowers blindly to the slaughterhouse of your Arlington office." Mr. Stello replied with a one-paragraph reminder that "NRC is the responsible federal agency for ensuring that safety significant views are appropriately addressed." And so on, until the final letter from Mr. Stello, which carried a warning that "if we do not receive full information on the allegations within 30 days we will be constrained to take steps to acquire it by other means."
Those "other means" were a subpoena, signed by Mr. Stello on May 20, 1987, ordering Ms. Garde to testify and produce documents regarding the South Texas allegations on May 26, 1987. The subpoena, the first ever directed at GAP by the NRC, was issued pursuant to 42 U.S.C. § 2201(c) (1982) and stated:
YOU ARE HEREBY COMMANDED to appear at Room 6507, Nuclear Regulatory Commission, 7735 Old Georgetown Road, Bethesda, Maryland on the 26th day of May 1987 at 9:00 o'clock A.M. to continue as necessary for the purpose of testifying before NRC personnel concerning allegations of current and/or former employees of the South Texas Project concerning the safety of the South Texas Project, as described in your letter of January 20, 1987 to Messrs. Victor Stello and James Mattox, and any other allegations which you have received concerning the safety of the South Texas Project, and to provide any records or other documents in your possession or under your custody or control concerning such allegations.
Before May 26, attorneys for Ms. Garde and the NRC agreed to postpone the deposition while Ms. Garde moved the full Commission to quash the subpoena. On July 15, 1987, the Commission denied the motion to quash, and on July 27 and August 5, 1987, Ms. Garde testified. During the deposition she furnished some information but refused to provide either the substance of the allegations or the names of those who made them, claiming the information was protected by the attorney-client privilege and work product doctrine.
On August 14, 1987, the government filed this petition to enforce the subpoena under 42 U.S.C. § 2281 (1982), which allows the district court to order testimony and production of documents and to punish failure to obey such an order as contempt. GAP was allowed to intervene in the case, and Houston Lighting & Power Co., which is ...