CB&I AREVA MOX SERVICES, LLC v. USA

Filing 186

REPORTED ORDER denying 164 Motion for Protective Order; granting 168 Application for Access to Protected Material. Signed by Judge Thomas C. Wheeler. (ez) Service on parties made.

In the United States Court of Federal Claims
Nos. 16-950C, 17-2017C, 18-80C, 18-522C, 18-677C, 18-691C, 18-921C, 18-1779C, 19245C
(consolidated)
(Filed: April 8, 2019)
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CB&I AREVA MOX SERVICES, LLC,
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Plaintiff,
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v.
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THE UNITED STATES,
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Defendant.
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Private Law Firm Assisting
Federal Agency in Litigation;
Protective Order; Contested
Applications for Access to
Protected Material; 5 U.S.C. §
3106.

Mark J. Linderman, with whom were Dennis J. Callahan, Lisa N. Himes, and Stephen L.
Bacon, Rogers Joseph O’Donnell, PC, San Francisco, California for Plaintiff.
Joseph E. Ashman, Senior Trial Counsel, with whom were P. Davis Oliver, Senior Trial
Counsel, Anthony Schiavetti and Sosun Bae, Trial Attorneys, Joseph H. Hunt, Assistant
Attorney General, Robert E. Kirschman, Jr., Director, and Allison Kidd-Miller, Assistant
Director, Commercial Litigation Branch, Civil Division, U.S. Department of Justice,
Washington, D.C. for Defendant.
OPINION AND ORDER
WHEELER, Judge.
Plaintiff CB&I AREVA MOX Services, LLC (“MOX Services”) challenges the
Government’s Applications for Admission to the Protective Order on behalf of fourteen
attorneys from the private law firm Fox Rothschild LLP (“Fox Rothschild”). Dkt. No. 168.
MOX Services objects to the ability of private law firm attorneys to assist the Government
in this litigation pursuant to 5 U.S.C. § 3106. For the reasons explained below, the Court

DENIES MOX Services’ objection and GRANTS the Government’s Applications for
Admission to the Protective Order.
Background
The Court entered an Amended Protective Order in this case on August 31, 2018.
Dkt. No. 122. On March 4, 2019, pursuant to paragraph 5 of the Amended Protective
Order, the Government applied for fourteen attorneys from Fox Rothschild to have access
to information under the protective order to assist the National Nuclear Security
Administration (“NNSA”) in this litigation. 1 Dkt. No. 168.
MOX Services timely opposed the Government’s applications on March 6, 2019,
alleging that 5 U.S.C. § 3106 bars the NNSA from retaining private law firms or attorneys
to conduct litigation activities on behalf of the agency. Dkt. No. 169. On March 8, 2019,
the Government responded to MOX Services’ objection. In its response, the Government
argues that NNSA’s hiring of the fourteen attorneys does not violate 5 U.S.C. § 3106
because the attorneys are not, and will not be, engaged in the conduct of litigation, and that
only the Department of Justice (“DOJ”) controls, manages, and directs the litigation. As
requested by the Court, on March 18, 2019, MOX Services filed a reply in support of its
objection. Dkt. No. 174.
Discussion
5 U.S.C. § 3106 Does Not Bar the NNSA from Hiring Private Attorneys to Assist
with the Litigation.
MOX Services objects to the Government’s applications alleging that 5 U.S.C. §
3106 prohibits the NNSA from hiring the fourteen Fox Rothschild attorneys to conduct the
litigation on its behalf. Section 3106 provides:
Except as otherwise authorized by law, the head of an
Executive department or military department may not employ
an attorney or counsel for the conduct of litigation in which the
United States, an agency, or employee thereof is a party, or is
interested, or for the securing of evidence therefor, but shall
refer the matter to the Department of Justice.
5 U.S.C. § 3106. By prohibiting agencies from employing attorneys for the “conduct of
litigation,” section 3106 reinforces a number of statutory provisions, which establish the
The government originally applied for access on February 26, 2019. See Dkt. Nos. 162 and 163. On
February 28, 2019, MOX Services, through its objection, notified the Government that it used the incorrect
application form. See Dkt. No. 164. The Government fixed its mistake by filing corrected applications on
March 4, 2019. Dkt. No. 168.
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DOJ as the Government’s litigator. See 28 U.S.C. §§ 515-519, 543, 547. While section
3106 generally reflects Congress’s preference that the DOJ conduct all executive branch
litigation, many statutes grant agencies independent litigating authority. Unless an agency
is granted such authority, the DOJ’s consent is required for an agency to retain outside
counsel. Thus, agencies routinely employ attorneys to provide legal services other than
litigation, but may not employ attorneys as litigators, unless they have statutory authority
to conduct their own litigation, or unless the Attorney General has delegated that authority
to them.
However, DOJ attorneys often are not the only attorneys working on a given matter.
Rather, the DOJ receives “substantial assistance . . . as a matter of course from the attorneys
of an agency involved in a lawsuit,” and “the range of assistance that attorneys hired with
[agency] funds can provide is quite broad.” 9 U.S. Op. Off. Legal Counsel 81, 83 (1985),
1985 WL 185395. “Depending on the nature of a case, [the DOJ] may call upon agency
attorneys not only to provide factual material but also to draft pleadings, briefs, and other
papers.” 2 U.S. Op. Off. Legal Counsel 302, 303 (1978) 1978 WL 15320. However,
agency attorneys may not make final decisions as to the contents of briefs or oral arguments
and must remain under the supervision of attorneys from the DOJ. 9 U.S. Op. Off. Legal
Counsel 81, 83 (1985), 1985 WL 185395. “Final responsibility for litigation decisions,
both strategic and tactical,” rests with the DOJ. Id. Consequently, though agency attorneys
provide other litigation-related assistance to the DOJ, they are not engaged in the “conduct
of litigation” and thus, do not violate section 3106. In other words, “so long as [the DOJ]
retains control over the conduct of litigation,” such assistance is consistent with section
3106. Id.
Given the existence of the DOJ and an agency’s own staff attorneys, however, the
need for a federal agency to retain private counsel to help support the DOJ’s litigation
efforts rarely occurs. In the event that the size and complexity of the litigation calls for an
agency to retain outside assistance, private counsel is limited in the same regard. The
degree of supervision and oversight over the private firm or lawyer remains the determining
factor, which under the circumstances presented in this case, weighs in favor of the
Government.
According to MOX Services, the fourteen Fox Rothschild attorneys are or will be
improperly engaged in the “conduct of litigation” by performing “quintessential litigation
services,” which include “drafting requests for admission, developing counterclaims
against MOX services, supporting discovery and even drafting a motion for summary
judgement.” Pl’s. Obj. at 2. Conversely, the Government argues that the Fox Rothschild
attorneys are not developing any claims against MOX Services, and that the other
litigation-related services are not the “conduct of litigation.” Def’s. Resp. at 6. According
to the Government, the NNSA can hire outside counsel to perform litigation-related
services or activities, because the DOJ retains ultimate control over the conduct of litigation
in this case. Def’s. Resp. at 5.
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As previously explained, the role of an agency in supporting litigation is distinct
from the DOJ conducting litigation. The NNSA hired the Fox Rothschild attorneys to
provide litigation-related services to support the DOJ in the consolidated matters; this
attorney retention does not violate section 3106. Final responsibility for all litigationrelated decisions rests exclusively with the DOJ and not the NNSA attorneys, which
includes the Fox Rothschild applicants. Def’s. Resp. at 5. Moreover, the Government
further stated that the “DOJ, not the NNSA or its attorneys, represents the United States,”
decides what arguments will and will not be advanced in litigation, approves the contents
of any legal paper, signs any filing, and appears in Court in this consolidated litigation. Id.
Therefore, MOX Services’ assertion that the NNSA has hired “a private [law firm] to
defend” itself, see Pl’s. Obj. at 2, is simply incorrect. The Government has established that
the DOJ retains control over the litigation in this case, and thus, the NNSA does not violate
section 3106 by hiring the Fox Rothschild attorneys to provide assistance with litigationrelated activities.
In the alternative, the Government suggests that MOX Services lacks standing to
object to the applications pursuant to section 3106, alleging that MOX Services cannot
establish an injury in fact and that it is not a party intended to be protected by section 3106.
See Def’s. Resp. at 7-8. In opposition, MOX Services contends it has standing simply
because it “is entitled to invoke the jurisdiction of a federal court to decide the merits of a
dispute or of particular issues.” Pl’s. Reply at 5. However, section 3106 primarily governs
the relationship between the DOJ and federal agencies in the conduct of litigation. While
MOX Services may bear the effects, if any, of allowing the Fox Rothschild attorneys access
to the protected material in this case, the statute does not allow MOX Services, as a private
party, to object to the Government’s choices on who will assist the United States in this
litigation. Nonetheless, even assuming that MOX Services does have standing, section
3106 does not prevent agencies from engaging in litigation-related activities to support the
DOJ.
Conclusion
For the foregoing reasons, Plaintiff’s objection to Defendant’s Applications for
Admission to the Protective Order is DENIED, and Defendant’s Applications for
Admission to the Protective Order are GRANTED.
IT IS SO ORDERED.

s/Thomas C. Wheeler
THOMAS C. WHEELER
Judge

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