ML20024B801

Comments on Proposed Rule 10CFR2 Requiring Parties to File Single Responsive Brief Regardless of Number of Appellant Briefs Filed

ML20024B801
Person / Time
Issue date:	06/30/1983
From:	Rosenthal A NRC ATOMIC SAFETY & LICENSING APPEAL PANEL (ASLAP)
To:	Gilinsky V, Palladino N, Roberts T NRC COMMISSION (OCM)
Shared Package
ML20024B795	List: ML20024B794 ML20024B801
References
FRN-48FR29876, RULE-PR-2 48FR29876-1, NUDOCS 8307110393
Download: ML20024B801 (2)

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MEMORANDUM FOR:

Chairman Palladino

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I Commissioner Gilinsky

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Commissioner Roberts Commissioner Asselstine 3

FROM:

an S.

Rosenthal, Chairman Atomic Safety and Licensing Appeal Panel i

SUBJECT:

PROPOSED CHANGES TO 10 CFR PART 2

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In putting out for public comment the proposed amendment to Section 2.762 (c) of the Rules of Practice that would require parties to file "a sin'gle responsive brief regardless of the number of appellants' briefs filed," the Commission indicated that it was particularly interested in the receipt o.f views on the following two questions :

Do the commenters believe that this limita-

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tion will preserve an adequate opportunity to respond in cases in which many issues are raised on appeal?

If so, do the commenters have suggestions on how the Appeal Board's desire to limit responsive briefs to the necessary minimum can be achieved while preserving an adequate opportunity to file responsive briefs?

Underlying those questions is the seeming concern that, if confronted with several appellants ' brief s raising collec-tively a large number of discrete issues, the appellees might find themselves unable to respond adequately in a. single l

brief not exceeding the 70 page limit prescribed in Section l

2. 76 2 (e) of the Rules of Practice.

Although I think it un-likely that this will of ten prove to be the case, in any event Section 2. 76 2 (e) expressly provides that a party may' request an increase of the page limitation "for good cause. "

To this poi'nt, the appeal boards have manifested a. willingness to j

grant such requestis in circumstances where it has been apparent that the full range of issues presented by the appeal or appeals could not be satisfactorily addressed by an appellee in a 70 page brief.

There is no reason to assume - either that this policy will be altered if appellees are restricted to a' h307g0393830707 L

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.q-s' ingle brief or that appeal board members are incapable of making a rational judgment. on.the necessity for a page limit enlargement in a particulircaie'.

Ynthis connection, an appeal board obviously is advantaged if there is a full (albeit without excess. verbiage) briefing by all parties of,,

the issues thr.: =ust be' decided by the board.

' I trust that ths "Com=ission 'will. 'take the' foregoing into account i.n deciding upori.the adoption of this proposed rule change following the" conclus~ ion of ~ the~ comment period.

I fe.el.very strongly. that. the. change should be made in the intefest of a more'.~oYdsr'ly.appella'te pEocedure and, as noted, believe that no ground exists. for the' fe'Er that the result might be the deprivation ^~of'in~~ adequate opportunity to respond to...an. appellant's. arguments.

Indee'd, in actuality, the change' will simply codify wha't'.' appeal boards have done in several past proceedings by. order. -- without...(to my knowledge) any complaint 'from the af f ected' 'a'ppellse's'f.'.

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