ML050250087
| ML050250087 | |
| Person / Time | |
|---|---|
| Site: | Zion File:ZionSolutions icon.png |
| Issue date: | 01/19/2005 |
| From: | Kohn S Citizens Awareness Network, National Whistleblower Legal Defense & Education Fund |
| To: | NRC/FSME, US Federal Judiciary, Court of Appeals, 1st Circuit |
| References | |
| 04-1145 | |
| Download: ML050250087 (18) | |
Text
JAN 2 1 2DD5 No. 04- 1145 UNITED STATES COURT OF APPEALS FOR THE FIRST CIRCUIT CITIZENS AWARENESS NETWORK , INC. , et aI.
Petitioners UNITED STATES OF AMERICA , et aI.
Respondents Petition For Panel Rehearing and For Rehearing En Bane of the Decision of the 1st Circuit Court of Appeals Panel BRIEF FOR INTERVENORS NATIONAL WHISTLEBLOWER CENTER and COMMITTEE FOR SAFETY AT PLANT ZION Stephen M. Kohn Court of Appeals Bar Number 96636 National Whistleblower Legal Defense and Education Fund 3233 P Street , NW Washington , D. C. 20007 Phone: (202) 342- 1902 Attorney for the Intervenors Dated: January 19 2005
UNITED STATES COURT OF APPEALS FOR THE FIRST CIRCUIT CITIZENS AWARNESS NETWORK, INC.
Petitioner Docket No. 04- 1145 UNITED STATES OF AMERICA and UNITED STATES NUCLEAR REGULATORY COMMISSION Respondents.
CORPORATE DISCLOSUR STATEMENT The National Whistleblower Center is a 50l(c)(3) not- for- profit corporation.
The National Whistleblower Center has no parent corporation and is not owned wholly or in part , by any publicly- traded corporation.
Respect lly ub yrtted Stephen M. Kohn Court of Appeals Bar Number 96636 National Whistleblower Legal Defense and Education Fund 3233 P Street , NW Washington , D. C. 20007 (202) 342- 1903 (Phone)
UNITED STATES COURT OF APPEALS FOR THE FIRST CIRCUIT CITIZENS AWARNESS NETWORK , INC.
Petitioner Docket No. 04- 1145 UNITED STATES OF AMERICA and UNITED STATES NUCLEAR REGULATORY COMMISSION Respondents.
COMMITTEE FOR SAFETY AT PLANT ZION' CORPORATE DISCLOSUR STATEMENT The Commttee for Safety at Plant Zion is a not- for-profit voluntary association. The Commttee for Safety at Plant Zion has no parent corporation and is not owned , wholly or in part , by any publicly- traded corporation.
brntted Stephen M. Kohn Court of Appeals Bar Number 96636 National Whistleblower Legal Defense and Education Fund 3233 P Street , NW Washington , D. C. 20007 (202) 342- 1903 (Phone)
TABLE OF CONTENTS PAGE NATIONAL WHISTLEBLOWER CENTER' S CORPORATE DISCLOSUR STATEMENT....................................................................... i COMMITTEE FOR SAFETY AT PLANT ZONES CORPORATE DISCLOSUR STATEMENT........................................................................ ii TABLE OF CONTENTS............................................................................... iii TABLE OF AUTHORITIES. .......... ................................................................
REASONS WHY PANEL OR EN BANC REHEARIG SHOULD GRANTED............................. .......
STATEMENT OF JUSDICTION................................................................
STATEMENT OF ISSUES.............................................................................. 2 STATEMENT OF THE CASE............................. ........................................... 3 STATEMENT OF THE FACTS......................... ............................................. 3 ARGUMENT.................................................................................................... 5 SUBPART L VIOLATES THE APA.......................................... 5 II. THE REGULATIONS VIOLATE DUE PROCESS. .
CONCLUSION................................................................................................ .
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TABLE OF AUTHORITIES CASES:
Citizens Awareness Network. Inc. v. U. , 391 F.3d 338 (1st Cir. 2004)...... 3 Hornsby v. Allen , 326 F. 2d 605 (5th Cir. 1964).............................. 9 STATUTES AN RULES:
Administrative Procedure Act S U. C. 9 556........................................... passim Federal Rule of Appellate Procedure 15......................................................... 2 Federal Rule of Appellate Procedure 35 (b )(1 )(B) ........................................... 1 Federal Rule of Appellate Procedure 40( a)(1) ................................................ 2 28 U. C. 9 2342............................................................................................... 2 28 U. C. 9 2343............................................................................................... 2 28 U. C. 9 2344............................................................................................... 2 REGULATIONS:
10 C. F . R. Part 2 , subpart L............................................................................. passim 1 0 C. F . R. 2. 1203............................................................................................... 4 10 C. F . R. 2. l293( d)..................... ....................... ...... ........................................ 5 10 C. F . R. 2. 1204.............................................................................................. 4 10 C. F . R. 2. l204(b).. ............. ............................................... 4 10 C. F . R. 2. 1207...................... ............. ...................................... :................... 8
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10 C. R. 2. l207(a)....................................................................................... 4 , 6 , 7 , 9 10 C. F . R. 2. 1207 (a)( 6)................................................................... ................
10 C. F . R. 2. 1207 (a )(3)(I)............................. ................................................. 7 10 C. F . R. 2. 1207 (b)( 6)......... ......................................................................... 4 , 5 , 7 ADMINISTRATIVE AUTHORITIES:
69 Federal Register 2182 (January 14 2004)................................................ passim
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REASONS WHY PANEL OR EN BANC REHEARING SHOULD BE GRANTED Intervenors respectfully requests panel or en banc rehearing of the Court of Appeals ' December 10 2004 decision. Pursuant to Federal Rule of Appellate Procedure 35(b)(1 )(B), intervenors assert that two main " questions of exceptional importance " must be addressed by panel or en banc rehearing: (1) the incongrity of the panel' s decision with prior court precedent; and (2) the impact the panel' decision will have on adjudicatory process in hearings mandated by Congress under the Administrative Procedure Act. Points and authorities regarding these two questions of exceptional importance appear in NWC' s arguments , herein.
Moreover , the central legal issues in question here continues to be paramount to nuclear safety and the public interest: whether citizens who reside within the NRC-recognized hazard zone of a nuclear power plant (i. e. a 50 mile radius of the plant) receive proper Due Process and have full access to the procedural requirements of a formal hearing under the Administrative Procedure Act (AP A), 5 U. C. 9 556( d), in order to sufficiently adjudicate contested safety or security issues of utmost importance to the community.
STATEMENT OF JURISDICTION This case arises from a petition for review of a Final Rule issued by the
respondent United States Nuclear Regulatory Commssion entitled " Changes to the Adjudicatory Process " which was published in the Federal Register . 69 Fed.
Reg. 2182 (Jan. 14 2004). Therefore , this court has jurisdiction over the case under 28 U. C. 99 2342 , 2343 , 2344 and F. P. 15. Moreover , this petition for panel or en banc rehearing arises from a final decision by a panel of the First Circuit Court of Appeals , dated December 10 , 2004. Therefore , this petition is timely filed under F. P. 40(a)(1).
STATEMENT OF THE ISSUES The issues presented in this case are twofold. The first issue is whether the rules promulgated in 10 C. R. Part 2 comply with the full and formal adjudicatory requirements'6fthe Administrative Procedure Act ("APA" ), 5 U. C. 9 556 including the rights of rebuttal and cross-examination applies to licensing hearings. The second issue is whether the aforementioned rules comply with the procedural req\lirements of Due Process.
STATEMENT OF THE CASE On April 16 , 2001 the U. S. Nuclear Regulatory Commssion ("NRC" published a prpposed rule entitled " Changes to the Adjudicatory Process " in the Federal Register. 66 F. R. 19610. The National Whistleblower Center ("NWC" and the Commttee for Safety at Plant Zion (" CSPZ" ) filed a timely response to the
proposed rule on September 14 2001 in accordance with 66 Federal Register No.
27045- 27046 (May 16 2001). J. 751. The NRC published the final rule on January 14 2004 in the Federal Register. Nuclear Regulatory Commssion , Final Rule , 69 Federal Register 2182 (January 14 2004). On January 27 2004 , the Citizens Awareness Network , Inc. (" CAN" ) filed a timely petition for review.
The NWC filed a timely motion to intervene on February 12 2004. 28 U. C. 9 2348 , F. 15(d). On April 28 , 2004 this Court consolidated the CAN appeal with an appeal of the NRC' s rule filed by Public Citizen Critical Mass Energy and Environmental Program and the Nuclear Information and Resource Service.
Pursuant toih order of this Court , the NWC' s briefwas due to be filed on or before June 7 , 2004. The brief was timely filed.
On December 10 , 2004 , a three-judge panel of the First Circuit Court of Appeals issued its decision. Citizen Awareness Network. Inc. v. U. 391 F.
338 (1st Cir. 2004). Pursuant to F. P. 40(a)(1), a part had 45 days to file a petition for panel or en banc rehearing.
STATEMENT OF THE FACTS On January 14 2004 the NRC published its Final Rule , entitled " Changes to Adjudicatory Process; Final Rule. 69 Federal Register 2182 (January 14 2004).
The Final R affirmed the position of the Nuclear Regulatory Commssion that
on- the-record hearings are not required under the Atomic Energy Act " except in certain limited circumstances not relevant to this appeaL 69 Federal Register.
2192 (January 14 2004). Based on its legal assumption that the Administrative Procedures Act' s adjudicatory mandates did not apply to most NRC licensing proceedings , the Commssion approved a complex hybrid hearing strcture which radically diminished to prior hearing procedures available to residents who resided within a nuclear plant's evacuation zone.
Subpart L sets forth " informal hearing procedures " for citizens who reside within the evacuation zone of a NRC licensed facility. 69 Federal Register.
2267- 70 (January 14 2004). Meaningful discovery is not permtted. , p. 2268 oj ,
10 C. R. l203. Parties have no right to cross examine any witness.
2268 , , 10 C. R. 92. 1204. At the hearing, the " only" person permtted to orally question any witness is the "presiding officer or the presiding officer s designee.
, p. 2269 , 1-0 C. R. 92. l207(b)(6). There is no provision for taking testimony under oath and witness statements may be filed without any requirement that the testimony be sworn. 10 C. F . R. 9 2. 1207 (a). There is no provision for calling adverse witne.sses. (Parties can only call their own witnesses or recommend rebuttal questions to witnesses the opponent part chooses to submit.) . Parties are not permtted to call witnesses in the control ,of an opponent , nor can a party
conduct pre- tral depositions of such witnesses. ; 10 C. R. 92. l203(d). There is no provision to call a custodian of records at a hearing or obtain documents within control of an opponent. . Finally, cross examination may theoretically be granted , within the discretion of a judge. However , the Commssion stated that any cross examination would be "rare. " 69 Fed. Reg . 2228.
A part must submit all testimony, rebuttal testimony and proposed questions in iting well before the hearing date. , p. 2269 " 10 C. R. 9 l207(a). At the hearing itself , parties may not file a motion or request to submit any follow-up questions for the presiding officer to ask a witness , regardless of what a witness may say on the stand. , p. 2269 , , 10 C. F . R. 9 2. 1207 (b)( 6).
(t In Citizens Awareness Network. Inc. v. United States of America , 391 F.
338 (1 st Cir. 2004) the intervenors , along with other petitioners , challenged the limitations imposed on his right to present his case pursuant subpart 10 C.
subpart L. bn December 10 2004 , the Court held that subpart L comported with the Administrative Procedure Act. Intervenors now petition for a panel En Bane rehearing.
ARGUMENT SUBPART L VIOLATES THE APA Pursuant to the Administrative Procedure Act S U. C. 9 556(d), (aJ party
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is entitled to present his case or defense by oral or documentary evidence , submit rebuttal evidence and to conduct such cross-examination as may be required for a full and tre disclosure of the facts. " 5 U. A. 9556(d).
As outlined in the statement of facts , the procedures in subpart L , on their face , do not comport with the Administrative Procedure Act.
First , a part cannot present his or her case by " oral or documentary evidence. " Section 10 C. R. 9 2. l207(a) sets forth the procedure for calling witnesses. A party has no right or ability to call any witness in the control of an opposing party. Thus , the testimony of adverse witnesses cannot be obtained.
Without the ability to call witnesses who have relevant information , but are in the control of the opposing party, the hearing procedures do not permt a party to present his or her case by oral testimony.
The sarpe is tre for documentary evidence. There are no provisions for
... 'i' discovery of documents which may be adverse to an opposing party. There are also no provisions permtting pre- hearing depositions , 10 C. R. 92. l203(d).
Thus a party cannot obtain evidence from an opposing party and present that evidence iri documentary form at the hearing.
Second , a part cannot question any witnesses. The contested regulations expressly state that " Jarticipants and witnesses will be questioned orally or in
writing and only by the presiding offcer or a designee. 10 C. R. 92. l207(b)(6)
(emphasis added). All such questions must be submitted at least 5 days before the hearing commences , and once the hearing has begun ( n Jo part may submit proposed questions to the presiding officer ... except upon request by, and in the sole discretion of, the presiding officer. Id. at 9 2. l207(a)(3), (b)(6) (emphasis added). Whether the presiding officer uses the questions submitted by the parties is a matter of discretion. 10 C. F . R. 9 2. 1207 (b)( 6).
Third , a party may not request permssion to submit rebuttal questions in response to testimony elicited at a hearing. As set forth in 10 C. F . R. 9 1207 (b)( 61, ( n Jo part may submit proposed questions to the presiding officer at the hearing, except upon request by, and in the sale discretion of the presiding officer. " 10 C. R. 92. l207(a)(6). Thus , parties cannot submit rebuttal testimony as a matter of right , and cannot even request the presiding officer for permssion to "I
file such testimony. 10 C. R. 9 2. l207(a)(3)(i). Only a presiding officer , at his or her own imitative , and without the benefit of a request being filed by a party, can decide whether to permt rebuttal testimony.
Fomth , the provisions are clearly intended and worded to eliminate any meaningful ability to cross examine witnesses on the stand. There is no right to cross examination. Cross examination is only permtted in the discretion of the
administrative judge , and only if a part adheres to a complex process for requesting cross examination. 10 C. R. 92. l204(b). Indeed , the NRC' commentary in the Federal Register outrght states that it " expects that the use of cross-examination will be rare. " 69 Federal Register 2228 (January 14 2004).
Additionally, the prohibition on submitting proposed questions at a hearing clearly forecloses any meaningful cross examination of the evidence orally introduced into the record at a hearing. Under the new rules , at the hearing itself no party can request that the presiding officer (the only person permtted to question witnesses) ask any new questions based on the oral testimony of a witness. 10 R. 9 2. l207(b)(6).
Fifth , there is no requirement that any of the testimony pre- filed with a hearing examiner or orally introduced at a hearing be submitted under oath.
R. 9 2. 1207.
Though it is acknowledged that NRC admnistrative judges have some discretion to control hearing procedure , the regulations go too far in achieving their explicit aim of restraining direct and cross-examination. The contested regulations contain troubling language that serves only to limit, not expand , the procedural rights of the APA. Specifically, the regulations only give presiding officers the discretion to further limit the procedures set forth in subpart L:
(uJnless otherwise limited by this subpart (LJ or by the presiding officer participants in an oral hearing may submit and sponsor in the hearings: (initial wrtten statements , wrtten responses , and proposed questions for witnesses)."
R. 9 2. l207(a).
Thus , hearing officers lack the discretion to increase the procedural rights afforded the parties.
The panel' s holding that the subpart L procedures met with the mandates of the APA sets very bad precedent , not only in the context ofNRC safety hearings but in the context of all administrative proceedings in which Congress has intended to afford the parties the protections set forth in the AP II. THE NRC REGULATIONS VIOLATE DUE PROCESS Though it is tre that an admnistrative judge may be given discretion to limit hearing procedures , these limitations must nonetheless be reasonable and comport with the basic outlines of due process. Hornsby v. Allen , 326 F. 2d 605 (5th Cir. 1964). In particular , the Fifth Circuit Court of Appeals , has specifically held that because " licensing consists in the determnation of factual issues and the application of legal criteria to them-a judicial act-the fundamental requirements of due process are applicable to it. Id. at 608. Here , we have the same question of
licensure , with the need for highly fact- based inquiries , and thus the same need to preserve due process.
More precisely, the court in Hornsby held that , though administrative hearings need not adhere strictly to the most formal rules of evidence the parties must generally be allowed an opportnity to ... cross-examine witnesses for the other side. . . . Quite simply, if a party may only cross-examine adverse witnesses through a presiding officer , only according to a pre-screened set of questions , and with no ability to present additional or more specific questions as the witnesses present testimony unless the presiding officer requests it only upon her own motion , the ability to cross-examine is rendered toothless to a degree beyond thatwhich due process requires.
What is more troubling is the failure of the NRC regulations to require that all testimony be submitted under oath. Under Hornsby , the failure to require all testimony be submitted under oath is fataL 326 F. 2d at 608.
The adjudicatory procedures upheld by the Court will , over time , negatively impact the due process rights afforded to parties in other agency proceedings.
their broad restrictions upon the calling of witnesses , cross-examination discovery, rebuttals , and even the swearing- in of witnesses are allowed to stand as fitting within the parameters of due process and the AP A , this will lower the bar of 10-
the entire AP A standard. The effect could be to drastically change the way many agencies perceive the requirements of the AP A , and could easily encourage other similar regulations that strip parties of the procedural protections they have for some time understood as applying under the AP A and due process.
The petitioned case represents , a split among federal circuits on the question of what due process requires. The holding in cases such as Hornsby , which clearly stand for the proposition that due process protects a par' s ability to conduct direct and cross-examination from being whittled out of existence , conflict with this Court's holding.
CONCLUSION For ail of the foregoing reasons , the Cour should grant this petition for panel or en banc rehearing.
Resp;rfily s
. Kahn Court of Appeals Bar Number 96636 National Whistleblower Legal Defense and Education Fund 3233 P Street , NW Washington , D. C. 20007 Phone: (202) 342- 1902/03 January 19 2005 Attorney for the Intervenors 11-
CERTIFICATE OF SERVICE I hereby certify that on Januar 19 2005 a copy of the following " Petition for Panel Rehearing and For Rehearing En Banc of the Decision of the 1 st Circuit Court of Appeals Panel" was served by U. S. first class mail upon the following:
Jon M. Block , Esq. Steve Crockett , Attorney Attorney for Citizens Awareness Network Office of General Counsel 94 Main Street S. Nuclear Regulatory Commn.
PO Box 566 Washington , D. C. 20555 Putney, VA 05346- 0566 Ellen C. Ginsburg, Esq. Robert Oakley Michael Bauser Appellate Section Nuclear Energy Institute , Inc. Environment and Natural 1776 I Street , N. , Suite 400 Resources Division Washington , D. C. 20006- 3708 S. Department of Justice O. Box 23795 Washington , DC 20026- 3795 Michael Kirkpatrick Bonnie I. Robin- Vergeer , Esq.
Public Citizen Litigation Group 1600 20th Street , N.
Washington , D. C. 20009 Stephen M. Kohn Court of Appeals Bar Number 96636