U.S. v. GARDE
673 F.Supp. 604 (1987)
UNITED STATES of America, Petitioner,
v.
Billie Pirner GARDE, Respondent,
and
Government Accountability Project, Intervenor-Respondent.
Misc. No. 87-274.
United States District Court, District of Columbia.
October 27, 1987.
Mark Nagle, Asst. U.S. Atty., Washington, D.C., for petitioner.
Marya C. Young, Thomas J. Mack, Jones, Mack, Delaney & Young, Washington, D.C., for respondent.
Patti Goldman, Public Citizen Litigation Gr., Washington, D.C., for Government Accountability Project.
MEMORANDUM OPINIONTHOMAS F. HOGAN, District Judge.
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.
FACTSThe 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.
Ms. Garde, the respondent, is an attorney and director of the Midwest Office of GAP. On January 20, 1987, she wrote a letter to Victor Stello, Jr., the NRC's Executive Director for Operations, and to Texas Attorney General James Mattox stating that GAP had begun investigating worker allegations concerning the safety of the South
Texas Project, a nuclear plant nearing completion southwest of Houston, Texas. The letter stated that GAP represented or was working with 36 current or former employees at the plant. The letter stated: Once our preliminary investigation is complete, we plant 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.
1. It appears from disclosures made during deposition and from affidavits filed in this proceeding that Ms. Garde claims 56 sources of information for roughly 600 allegations. About 46 of those individuals are within the scope of the NRC subpoena. Of those 46 individuals, 24 are "clients" and 22 are "witnesses." Because of parallel proceedings before the Department of Labor, the identity of about 16 of the clients has been disclosed to the NRC. One other client's identity is known to the NRC, so the identity of seven clients remains confidential.
While the Court finds it unnecessary to reach the merits the lawyer-client confidentiality issue, it does consider Ms. Garde's argument substantial under the line of cases that begins with Baird v. Koerner,279 F.2d 623 (9th Cir.1960), and includes NLRB v. Harvey,349 F.2d 900 (4th Cir.1965), where it was recognized that the identity of a client may be privileged "when so much of the actual communication has already been disclosed that identification of the client amounts to disclosure of a confidential communication." 349 F.2d at 905.
2. Ms. Garde and GAP argue without contradiction that the NRC's pledge of confidentiality is not enforceable. They cite McDermott v. NRC, Civil Action No. 85-1082, slip op. at 5 (D.D.C. Apr. 26, 1985), where Judge Johnson ruled that a similar promise of confidentiality could not be enforced by mandamus. "As an internal operating procedure or managerial tool designed to aid the exercise of the NRC's independent discretion, DCAMP [Diablo Canyon Allegation Management Program] is not enforceable in a private civil suit." Id.