
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        August 31, 1992         [NOT FOR PUBLICATION]                            UNITED STATES COURT OF APPEALS                                FOR THE FIRST CIRCUIT                                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).                                         -3-          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                                         -4-          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).                ____  ______                                         -5-
