Davis v. Day & Zimmerman NPS, Inc.
MEMORANDUM OPINION and ORDER DISMISSING CASE that plaintiff's motion for leave to file a Second Amended Complaint is DENIED, Defendant's motion to dismiss plaintiff's First Amended Complaint is GRANTED and all claims asserted against defendant are dismissed, costs are taxed to plaintiff; as more fully set out in order. Signed by Judge C Lynwood Smith, Jr on 5/17/2012. (AHI)
2012 May-17 AM 10:29
U.S. DISTRICT COURT
N.D. OF ALABAMA
UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF ALABAMA
DAY & ZIMMERMANN NPS,
Civil Action No. CV-11-S-3738-NE
MEMORANDUM OPINION AND ORDER
This case is before the court on defendant’s motion to dismiss plaintiff’s
amended complaint,1 and plaintiff’s motion for leave to file a second amended
complaint.2 Upon consideration of the motions, the pleadings, and the parties’ briefs,
the court concludes that the motion for leave to amend should be denied, and the
motion to dismiss should be granted.
I. STANDARDS OF REVIEW
Motion to Dismiss
Defendant’s motion to dismiss is based upon Federal Rule of Civil Procedure
12(b) — the pertinent part of which provides that “a party may assert the following
defenses by motion: . . . (7) failure to join a party under Rule 19.” Fed. R. Civ. P.
Doc. no. 18.
Doc. no. 19.
12(b)(7). Rule 19(a) provides that:
A person who is subject to service of process and whose joinder
will not deprive the court of subject-matter jurisdiction must be joined
as a party if:
in that person’s absence, the court cannot accord complete
relief among existing parties; or
that person claims an interest relating to the subject of the
action and is so situated that disposing of the action in the
person’s absence may:
as a practical matter impair or impede the person’s
ability to protect the interest; or
leave an existing party subject to a substantial risk of
incurring double, multiple, or otherwise inconsistent
obligations because of the interest.
Fed. R. Civ. P. 19(a)(1). “If a person has not been joined as required, the court must
order that the person be made a party.” Fed. R. Civ. P. 19(a)(2). Rule 19(b) further
If a person who is required to be joined if feasible cannot be
joined, the court must determine whether, in equity and good
conscience, the action should proceed among the existing parties or
should be dismissed. The factors for the court to consider include:
the extent to which a judgment rendered in the person’s
absence might prejudice that person or the existing parties;
the extent to which any prejudice could be lessened or
protective provisions in the judgment;
shaping the relief; or
whether a judgment rendered in the person’s absence
would be adequate; and
whether the plaintiff would have an adequate remedy if the
action were dismissed for nonjoinder.
Fed. R. Civ. P. 19(b).
When evaluating the import of the foregoing provisions of Rule 19 in Focus
on the Family v. Pinellas Suncoast Transit Authority, 344 F.3d 1263 (11th Cir. 2003),
the Eleventh Circuit observed that
Rule 19 states a two-part test for determining whether a party is
indispensable. First, the court must ascertain under the standards of
Rule 19(a) whether the person in question is one who should be joined
if feasible. If the person should be joined but cannot be (because, for
example, joinder would divest the court of jurisdiction) then the court
must inquire whether, applying the factors enumerated in Rule 19(b), the
litigation may continue.
Id. at 1279-80 (quoting Challenge Homes, Inc. v. Greater Naples Care Center, Inc.,
669 F.2d 667, 669 (11th Cir.1982)). “In making the first determination—i.e., whether
the party in question ‘should be joined,’ pragmatic concerns, especially the effect on
the parties and the litigation, control.” Focus on the Family, 344 F.3d at 1280
(citations and some internal quotation marks omitted).
Motion for Leave to Amend
Federal Rule of Civil Procedure 15, addressing amended and supplemental
pleadings, states that a court should “freely give leave [to amend a pleading] when
justice so requires.” Fed. R. Civ. P. 15(a)(2).
A district court need not, however, allow an amendment (1) where there
has been undue delay, bad faith, dilatory motive, or repeated failure to
cure deficiencies by amendments previously allowed; (2) where
allowing amendment would cause undue prejudice to the opposing
party; or (3) where amendment would be futile. See Foman v. Davis, 371
U.S. 178, 182, 83 S. Ct. 227, 9 L. Ed.2d 222 (1962).
Bryant v. Dupree, 252 F.3d 1161, 1163 (11th Cir. 2001) (emphasis supplied).
II. ALLEGATIONS OF PLAINTIFF’S FIRST AMENDED COMPLAINT
The pertinent factual allegations contained in plaintiff’s First Amended
Complaint read as follows:
Plaintiff was hired by the defendant Day on or abut [sic]
October 11, 2010 to work in the Brown’s Ferry Nuclear Power Plant,
owned by TVA.
He went for his physical on October 11, 2010 at the Browns
10. He was terminated on October 14, 2010 by defendant Day
11. He was terminated because he failed to meet the chest
requirements of the company (S) [sic]. His pulse rate was too fast.
According to defendant, plaintiff had a heat stress reaction which would
not allow him to work in temperatures above 80 degrees.
12. The regulations promulgated by the Commission require
that job applicants pass a medical examination prior to becoming
licensed “operators” at any nuclear facility. The facility is required to
certify that a physician is required to determine if an applicant’s medical
condition and general health will adversely affect the performance of an
assigned operator (plaintiff Davis) endangering public health and safety.
These requirements mandate that facilities certify the health of their
operators, and if a facility cannot certify the health of an operator for a
particular position, the operator cannot legally be licensed to work there.
13. Plaintiff explained to the nurse that he had always had a
high pulse rate and that he had worked nuclear plants for five years with
his high pulse rate. He said he could get his doctor to verify this and
give him a medical right to work slip stating that he physically could
withstand the heat stress of the job.
14. Plaintiff explained to his supervisor at Day and
Zimmermann that he had always had a high pulse rate and that he had
worked nuclear plants for five years with his high pulse rate. He said he
could get his doctor to verify this and give him a medical right to work
slip stating that he physically could withstand the heat stress of the job.
15. He was told that it would not do him any good and that
under Day and Zimmermann policy, his doctor’s statement that he could
perform the work would not help him keep his job.
16. After this plaintiff went to the South Central Heart Group
and received a doctor’s note stating that he had no cardiac work
restrictions, stress echo is normal, exercise capacity is good, no cardiac
17. According to the regulations promulgated by Congress, a
physician is required to determine if Davis was healthy enough to work
in the plant. Davis had his vitals taken by a nurse at the facility. But,
the nurse did not make the decision to not let him work. That decision
was made by Day and Zimmermann. Day and Zimmermann refused to
The court presumes plaintiff is referring to the Nuclear Regulatory Commission.
let Davis bring to them his own doctor’s clearance, which he
Based on these factual allegations, plaintiff asserted a single claim under the
Americans with Disabilities Act of 1990, 42 U.S.C. § 12101 et seq. (“the ADA”),
captioned “Regarded as Having a Disability.”5 Plaintiff alleges that defendant
terminated his employment because defendant regarded him as having the disability
of a “high pulse rate.”6 Specifically,
22. Plaintiff alleges that the defendant used the results of the
test given to plaintiff by the TVA medical personnel to terminate
23. Plaintiff alleges that defendant Day & Zimmermaw [sic]
used this test as a selection criteria.
24. Plaintiff alleges that the company used the test to screen
him out the job [sic].
25. Plaintiff alleges that the defendant cannot show that the
standard, [sic] test, as used by the defendant, is job related and is
consistent with a business necessity.7
As relief for these violations, plaintiff requests an injunction, lost wages and benefits,
compensatory damages (i.e., emotional distress damages), costs, and attorney’s fees.8
Doc. no. 12 (Amended Complaint), at ¶¶ 8-17.
See id. at 4.
Id. at ¶¶ 18-21.
Id. at ¶¶ 22-25.
Id. at 5 (ad damnum clause).
In plaintiff’s proposed Second Amended Complaint, he adds the following
additional factual allegations:
18. According to defendant’s documentation, listed by
defendant as exhibit C, this documentation called “Certificate of
Medical Examination by Facility Licencee [sic]” must be filled out by
a physician before plaintiff would be allowed to work.
19. The above certificate is a document promulgated by the
NRC as a requirement to allow workers into the facility.
The above document was not filled out.
21. Plaintiff requested that he be allowed to see his physician
to get clearance.
22. Defendant Day refused to accommodate him and made no
effort to get this form 396 for Davis’s doctor to fill out.
They simply told him it would do him no good and fired
24. Plaintiff alleges they breached their duty to him under the
ADA to try to accommodate his disability.
25. Plaintiff further alleges that he was not permanently banned
from the facility by the nurses [sic] report.
26. Defendant’s exhibit C, [sic] states that future employment
The court presumes that the “Exhibit C” referenced by plaintiff actually is Exhibit 3 to
defendant’s motion to dismiss plaintiff’s Amended Complaint, which is a copy of the Nuclear
Regulatory Commission’s Form 396, or a “Certification of Medical Examination by Facility
Licensee.” See doc. no. 18, at Exhibit 3.
See supra note 9, for an identification of the Form 396.
27. The medical evaluation signed by the nurse medical
examiner, [sic] allows for a medical clearance with restrictions.
28. This was presented to Day & Zimmermann and they made
effort [sic] to determine if plaintiff could enter the facility with
29. Day & Zimmermann has a duty under the ADA to
investigate this and they failed to do that.11
Plaintiff also added proposed claims for “having a disability” and failure to
accommodate. According to plaintiff, defendant discriminated against him because
of his disability, as well as because defendant regarded him as having a disability.12
Plaintiff also alleges that defendant denied a request to accommodate his disability
when it refused to allow his own doctor to run a heat stress test or other examination
to determine if plaintiff could work at the TVA facility.13
Defendant moved to dismiss plaintiff’s First Amended Complaint due to
plaintiff’s failure to join indispensable parties. Defendant also requested the court to
deny plaintiff’s motion for leave to file a Second Amended Complaint, asserting that
amendment would be futile because the proposed Second Amended Complaint also
Doc. no. 19 (Motion to file Second Amended Complaint), Exhibit 1 (Proposed Second
Amended Complaint), at ¶¶ 18-29.
Id. at ¶¶ 30-37.
Id. at ¶¶ 38-43.
fails to join indispensable parties.
Failure to Join Indispensable Parties
Defendant asserts that plaintiff’s First Amended Complaint should be
dismissed because the Tennessee Valley Authority (“TVA”) and the United States
Nuclear Regulatory Commission (“NRC”) are indispensable parties, yet they cannot
be joined as defendants to plaintiff’s claims. Plaintiff offered no response to this
argument in his brief in opposition to defendant’s motion to dismiss. Instead,
plaintiff’s entire brief is devoted to arguing whether the allegations of his First
Amended Complaint are sufficient to state a claim for disability discrimination under
the ADA.14 Furthermore, plaintiff’s proposed Second Amended Complaint does not
attempt to assert any claims against either the TVA or the NRC, and it does not add
any other allegations to address the arguments asserted in defendant’s motion to
dismiss. Instead, the proposed Second Amended Complaint only asserts additional
facts to support plaintiff’s disability discrimination claim, and additional theories for
pursuing that claim under the ADA.15
Defendant’s brief correctly and succinctly summarizes much of the background
See doc. no. 20 (Response to Second Motion to Dismiss).
See doc. no. 19 (Motion to File Second Amended Complaint), at Exhibit 1 (Proposed
Second Amended Complaint). It is as though plaintiff’s counsel did not even read the arguments
asserted in defendant’s motion to dismiss.
information necessary for a proper understanding of its motion to dismiss:
[Day & Zimmermann] provides staffing to nuclear and fossil fuel
suppliers. One of its clients is the Tennessee Valley Authority (“TVA”).
TVA operates three nuclear power plants, including the Browns
Ferry Plant, which is located on 840 acres beside Wheeler Reservoir on
the Tennessee River, near Athens, Alabama. As is typical in the nuclear
plant industry, TVA’s need for workers at its Browns Ferry Plant
fluctuates constantly. TVA therefore relies on [Day & Zimmermann] to
satisfy its ever-changing staffing needs related to the maintenance and
modification of the Browns Ferry Plant. To accommodate TVA’s
staffing needs, [Day & Zimmermann] relies on temporary workers,
which [Day & Zimmermann] hires to complete designated maintenance
and modification tasks at the facility. As these designated tasks are
completed, there is no need for [Day & Zimmermann] personnel, save
for a minimal skeletal crew, until TVA identifies additional tasks that
need to be completed. Accordingly, [Day & Zimmermann] routinely
hires and lays off workers at the Browns Ferry Plant, and subsequently
rehires laid off workers as additional work becomes available.
The individuals that [Day & Zimmermann] hires to work at the
Browns Ferry Plant are members of various professional trade unions.
When [Day & Zimmermann] needs workers for a specific job
assignment, it contacts the trade unions. The trade unions’ respective
hiring halls then refer employees to jobs with [Day & Zimmermann].
The Project Maintenance and Modification Agreement (“PMMA”) . . .
governs the terms of the workers’ employment at the Browns Ferry
Plant. The PMMA, which is an agreement between [Day &
Zimmermann] as a contractor of the power plants and multiple trade
unions, addresses the unique nature of the services provided by [Day &
The operation of Browns Ferry and all other nuclear power plants
in the United States is governed by the United States Nuclear Regulatory
Commission (“the Commission or NRC”). The regulations promulgated
by the Commission require that job applicants pass a medical
examination prior to becoming licensed “operators” at any nuclear
facility. 10 C.F.R. Part 55. Applications may be approved only if,
among other things, the applicant’s medical condition and general health
will not cause operational errors that endanger public health and safety.
10 C.F.R. Part 55, § 55.7.
In order to comply with these nuclear regulations, each nuclear
facility (here, TVA) is required to certify that a physician has examined
an applicant in accordance with the Commission’s regulatory guidelines.
10 C.F.R. Part 55, § 55.23. A Form NRC-396, “Certification of
Medical Examination by Facility Licensee,” (here, TVA) must be
completed by a Senior Management Representative of TVA, who is on
site, and must certify that a physician has conducted the medical
An “operator” is “any individual licensed under this part to manipulate a control of a
facility.” 10 C.F.R. § 55.4. “A person must be authorized by a license issued by the Commission
to perform the function of an operator or a senior operator . . . .” 10 C.F.R. § 55.3.
10 C.F.R. § 55.7 provides: “The Commission may, by rule, regulation, or order, impose
upon any licensee such requirements, in addition to those established in the regulations in this part,
as it deems appropriate or necessary to protect health and to minimize danger to life or property.”
10 C.F.R. § 55.23 provides:
To certify the medical fitness of the applicant, an authorized representative
of the facility licensee shall complete and sign NRC Form 396, “Certification of
Medical Examination by Facility Licensee,” which can be obtained by writing the
Office of Information Services, U.S. Nuclear Regulatory Commission, Washington,
DC 20555–0001, by calling (301) 415–7232, or by visiting the NRC’s Web site at
http://www.nrc.gov and selecting forms from the index found on the home page.
(a) Form NRC-396 must certify that a physician has conducted the
medical examination of the applicant as required in § 55.21.
(b) When the certification requests a conditional license based on
medical evidence, the medical evidence must be submitted on NRC Form
396 to the Commission and the Commission then makes a determination in
accordance with § 55.33.
examination of the applicant as required by 10 C.F.R. 55.21. . . . This
form certifies that the applicant has been examined by a physician and
that the applicant has been found to meet the safeguards and fitness for
duty requirements for licensed operators at this facility. As indicated on
page 2 of [Form NRC-396], the medical examination contemplated by
the certification of medical examination by facility licensee can be
performed by a physician or other medical professional such as a
physician’s assistant or nurse practitioner. The examining physician
may delegate portions of the examination to a licensed nurse practitioner
or a licensed physician’s assistant who is familiar with the applicable
ANSI standard and the activities required of a nuclear power plant
operator or senior operator. As indicated above, this form is completed
by TVA and is to be submitted by TVA to the NRC. [Day &
Zimmermann] does not have the Form NRC-396 for [plaintiff] because
[Day & Zimmermann], as contractor, would not be responsible for
completing the Form NRC-396, nor is [Day & Zimmermann] an
intended recipient of the Form. The intended recipient is the NRC.
Instead, what [Day & Zimmermann] received from TVA was a summary
of the medical evaluation of [plaintiff]. . . . So any dispute which
[plaintiff] has with the correctness of the medical evaluation is a dispute
he has with TVA and not [Day & Zimmermann].20
Are TVA and the NRC “indispensable parties”?
10 C.F.R. § 55.21 provides that “[a]n applicant for a license shall have a medical
examination by a physician. A licensee shall have a medical examination by a physician every two
years. The physician shall determine that the applicant or licensee meets the requirements of §
55.33(a)(1).” 10 C.F.R. § 55.33(a)(1) states that
The Commission will approve an initial application for a license pursuant to
the regulations in this part, if it finds that —
(1) Health. The applicant’s medical condition and general health will
not adversely affect the performance of assigned operator job duties or cause
operational errors endangering public health and safety. The Commission
will base its finding upon the certification by the facility licensee as detailed
in § 55.23.
Doc. no. 18, at 1-5 (bracketed alterations supplied).
The court concludes that both TVA and the NRC are “indispensable parties”
under Federal Rule of Civil Procedure 19(a)(1). If either of those parties were to
remain absent from the litigation, the court would be unable to accord complete relief
between plaintiff and Day & Zimmermann, the existing parties. Even if the court
decided to order Day & Zimmermann to re-employ plaintiff, TVA still would not be
required to accept the results of plaintiff’s medical tests unless it also was a party to
the case, and plaintiff still might not be able to work at the Brown’s Ferry Plant.21 Cf.
Mitchell v. Crowell, 966 F. Supp. 1071, 1079 (N.D. Ala. 1996) (“[T]his court is
without authority to review TVA’s decision to deny plaintiff’s security clearance, to
require defendant to allow plaintiff to remain in the position without a security
clearance, or to alter the position so as not to require a security clearance.”).22 TVA
might accept plaintiff’s test results if the NRC was required to make an exception to
its regulatory requirements, but the court could not require that action unless the NRC
was made a party to the case. Additionally, even if money damages were the only
Plaintiff has requested, among other items of relief, an injunction to prevent defendant
from committing further violations. See First Amended Complaint, at 5.
Defendant asserts that Judge Blackburn’s decision in Mitchell v. Crowell means that this
court lacks subject matter jurisdiction over this case. There is no indication that that was the intent,
or the effect, of Judge Blackburn’s decision. The Mitchell case, like the present case, involved a
claim for disability discrimination under the ADA. Judge Blackburn did not hold that the court
lacked subject matter jurisdiction over the plaintiff’s claims. To the contrary, she exercised
jurisdiction over the claims and decided them on the merits. Her comments about her inability to
review TVA’s decision to deny plaintiff’s security clearance were made in the context of determining
whether plaintiff’s employer could provide a reasonable accommodation for her disability. See
Mitchell, 966 F. Supp. at 1079.
relief awarded, Day & Zimmermann likely would seek indemnification from TVA
and/or the NRC, especially considering that TVA was the party who actually
conducted the medical evaluation of plaintiff and issued the Form NRC-396. The
absence of TVA and the NRC from the case would make it significantly more
difficult for Day & Zimmermann to collect from those parties.
Furthermore, both TVA and the NRC have an interest in the subject matter of
this action, and disposing of the case in their absence would impair or impede their
ability to protect their respective interests. See Fed. R. Civ. P. 19(a)(1)(B)(i). The
NRC unquestionably has an interest in enforcing its own regulations — regulations
drafted for the public health and safety of persons working in nuclear power plants,
or living within the radius of fallout from a nuclear disaster, such as those that
occurred at the Chernobyl Nuclear Power Plant in the Ukraine, or the Fukushima
Daiichi nuclear power plant in Japan — and its ability to protect those hugely
important national security interests could be impaired if does not join the litigation,
because any injunction from this court requiring Day & Zimmermann to send plaintiff
to work at the Browns Ferry Plant likely would result in a violation of NRC
regulations. Indeed, a finding that an employer is not required to comply with NRC
regulations if doing so might constitute a violation of a federal anti-employmentdiscrimination statute would essentially invalidate the regulations, or at least render
them ineffective. Such a finding should not be made without providing the NRC the
opportunity to defend its regulations, especially considering that the regulations
implicate important public health and safety issues. Additionally, TVA has an
interest in its contract with Day & Zimmermann, and it is required to abide by NRC
regulations. If this court were to require Day & Zimmermann to allow plaintiff to
work at the Browns Ferry Plant, TVA likely would be in violation of NRC
regulations, and its contract with Day & Zimmermann also might be in jeopardy.
Finally, proceeding in the absence of either TVA or the NRC could subject Day &
Zimmermann to the risk of incurring inconsistent obligations. See Fed. R. Civ. P.
19(a)(1)(B)(ii). If Day & Zimmermann were required to send plaintiff to work at the
Browns Ferry Plant, it might be in violation of both its TVA contract and federal
regulations. Which obligation would it satisfy: its obligation to this court?; its
contractual obligations?; or its obligation to comply with federal regulations? These
same concerns are present even if no injunction were issued. Day & Zimmermann
should not be placed in the position of having to choose whether to comply with its
contractual and regulatory obligations, or to incur monetary damages under a federal
Can TVA and the NRC be joined as parties?
Defendant asserts that TVA cannot be joined as a party to this action, because
plaintiff failed to exhaust his administrative remedies with regard to TVA. See
Tarmas v. Secretary of Navy, 433 F. App’x 754, 759 (11th Cir. 2011) (“A plaintiff
asserting a private right of action under the Rehabilitation Act must satisfy the
exhaustion of administrative remedies requirement in the manner prescribed by Title
VII.”).23 Defendant also asserts that the NRC cannot be joined because decisions of
the NRC generally are not judicially reviewable. See Arnow v. United States Nuclear
Regulatory Commission, 868 F.2d 223, 234 (7th Cir. 1989) (“We believe it is
apparent that Congress has entrusted the NRC with wide, unreviewable discretion in
the area of agency enforcement.”). The court agrees with defendant that plaintiff
would be unable to assert a successful claim against TVA for disability discrimination
under the Rehabilitation Act, or a claim against the NRC for review of any
Should the case proceed without TVA and the NRC?
The court easily concludes that this case should not proceed in the absence of
TVA and the NRC. For many of the same reasons discussed above, when addressing
TVA is a government-owned corporation, created in 1933 pursuant to the TVA Act. 16
U.S.C. §§ 831-831dd. As such, any disability discrimination claims against TVA would arise under
the Rehabilitation Act, which prohibits federal agencies from discriminating against otherwise
qualified individuals with a disability. See, e.g., Mullins v. Crowell, 228 F.3d 1305, 1313 (11th Cir.
2000); Sutton v. Lader, 185 F.3d 1203, 1207 (11th Cir. 1999). See also 42 U.S.C. § 12111(5)(B)
(stating that the United States and its agencies are excluded from coverage under the Americans with
Disabilities Act, 42 U.S.C. § 12101, et seq.).
the questions of whether TVA and the NRC are “indispensable parties,” a judgment
rendered in the absence of either of those parties could result in prejudice to them, or
to Day & Zimmermann. A judgment requiring the employment of plaintiff at the
Browns Ferry Plant might require Day & Zimmermann to put its contract with TVA
at risk, might require TVA to choose between risking violation of court orders or
violation of NRC regulations, and might require the NRC to risk the integrity of its
regulations. A monetary judgment would effectively punish Day & Zimmermann for
complying with NRC regulations and its contract with TVA, and it could subject both
TVA and the NRC to potential indemnification liability. See Fed. R. Civ. P. 19(b)(1).
The court knows of no way in which such prejudice could be lessened or avoided by
protective provisions in the judgment, shaping the relief, or any other measures. See
Fed. R. Civ. P. 19(b)(2). Furthermore, a judgment rendered in the absence of TVA
or the NRC might not even be adequate to redress plaintiff’s alleged wrongs. If this
court ordered Day & Zimmermann to place plaintiff in employment at the Browns
Ferry plant, TVA could refuse to accept him if it had not been made a party to this
case and was not subject to this court’s order. Additionally, if Day & Zimmermann
or TVA needed the NRC to make an exception to their regulatory requirements in
order to employ plaintiff at the Browns Ferry Plant, the NRC would not be compelled
to do so unless it was a party to this case.24 See Fed. R. Civ. P. 19(b)(3). Finally,
with regard to the last of the Rule 19(b) factors, the court is uncertain what other
remedies plaintiff might have available to him if the case were dismissed at this point
for nonjoinder. See Fed. R. Civ. P. 19(b)(4). However, it is clear that other remedies
have been available to plaintiff, even though he may or may not have taken advantage
of them. For example, plaintiff could have sought administrative review within TVA
of the decision not to clear him medically for work at the Browns Ferry Plant. The
record does not indicate that plaintiff ever made any attempt to do so. Additionally,
the following federal regulation provides a review procedure for decisions by the
NRC to deny access to one of its covered facilities:
Each licensee and applicant shall include a procedure for the
notification of individuals who are denied unescorted access, unescorted
access authorization, or who are unfavorably terminated. Additionally,
procedures must include provisions for the review, at the request of the
affected individual, of a denial or unfavorable termination of unescorted
access or unescorted access authorization that may adversely affect
employment. The procedure must contain a provision to ensure the
individual is informed of the grounds for the denial or unfavorable
termination and allow the individual an opportunity to provide
additional relevant information and an opportunity for an objective
This court has serious doubts about its ability to compel the NRC to make an exception to
its health and safety requirements in order for one of its facilities to employ a particular individual
(as well as doubts about the wisdom of any such decision). See Mitchell, 966 F. Supp. at 1079. The
court also has doubts about whether plaintiff would ever be able to prevail on any claim on the merits
against either TBA or the NRC. Even so, the statements made in the text paragraph accompanying
this footnote assume that a judgment could be entered in plaintiff’s favor, and that injunctive relief
would be available.
review of the information upon which the denial or unfavorable
termination of unescorted access or unescorted access authorization was
based. The procedure must provide for an impartial and independent
internal management review. Licensees and applicants shall not grant
unescorted access or certify unescorted access authorization, or permit
the individual to maintain unescorted access or unescorted access
authorization during the review process.
10 C.F.R. § 73.56(l). There also is no indication that plaintiff ever contacted the NRC
directly with any complaints.
In summary, the balance of all of the factors enumerated in Federal Rule of
Civil Procedure 19(b) weighs in favor of a determination that this case should not
proceed in the absence of TVA and the NRC.
Motion for Leave to Amend
As previously noted, plaintiff’s proposed Second Amended Complaint does not
address any of the deficiencies highlighted in defendant’s motion to dismiss the First
Amended Complaint. Specifically, it does not include any claims against TVA or the
NRC, and it does not provide any additional grounds to overcome defendant’s
argument that those entities are necessary and indispensable parties under Federal
Rule of Civil Procedure 19. Therefore, it would be futile to allow plaintiff to file the
proposed Second Amended Complaint, and his motion for leave to amend will be
IV. CONCLUSION AND ORDERS
In accordance with the foregoing, plaintiff’s motion for leave to file a Second
Amended Complaint is DENIED.
Further, for all of the reasons discussed above, this court determines that TVA
and the NRC are necessary and indispensable parties to this litigation under Federal
Rule of Civil Procedure 19, but neither of those entities can be joined as parties.
Defendant’s motion to dismiss plaintiff’s First Amended Complaint therefore is due
to be, and it hereby is, GRANTED. All claims asserted against defendant Day &
Zimmerman are dismissed. Costs are taxed to plaintiff. The Clerk is directed to close
DONE this 17th day of May, 2012.
United States District Judge
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