ML20052F880
| ML20052F880 | |
| Person / Time | |
|---|---|
| Issue date: | 12/23/1981 |
| From: | Cotter B Atomic Safety and Licensing Board Panel |
| To: | Bradford P, Gilinsky V, Palladino N NRC COMMISSION (OCM) |
| Shared Package | |
| ML20052F873 | List: |
| References | |
| FOIA-82-141 NUDOCS 8205140082 | |
| Download: ML20052F880 (1) | |
Text
_
}
f.",
,,.s, 4 ~
i uten t D 5T Al t s t.sCLE AR R EGUL ATORY COMr.*il' :.lO
, j J
{ 's, '[toi e, iff f ATOrdlC SAF ETY AND LICL rJstrJG DOARD l'Arti L L
5,
"' 7,,/,f
, )
W AtmNC10N. D.C. 201 t5 December 23, 1981 MEMORANDUM FOR:
Chairman Palladino Commissioner Gilinsky Commissioner Bradford
' Commissioner Ah6arne Commissioner Roberts FROM:
B.
Paul Cotter, Jr.
Chief Administra tivs Judge Atomic Safety and. Licensing Board Panel
SUBJECT:
NEW FORM FOR INITIAL DECISIONS Attached for your information is a copy of a memorandum pro-posing a new form for the Board decisions which.I hope will improve the clarity and quality of the Panel's writing.
There is more flexibility in the proposed format than a first reading would suggest, and I expect it will take a while for individual members to beco.ae comfortable with the form.
Attachment 8205140082 820408 PDR FOIA CONNER 82-141 PDR
f K
h c.* y UNITED STATES 3,lg D 1 g NUCLEAR REGULATORY COMMISSION w.
r ATOMIC SAFETY AND LICEMSING DOARD PANEL q
,*e r
WASHlfJGTON. D C. 20555 Dec e.r.ber 22, 1981 MEMORANDUM FOR:
All Panel Members B. Paul Cotter, Jr. b FROM:
Chief Administrative Judge Atomic Safety and Licensing Board Panel
SUBJECT:
NEW FORM FOR INITI AL DECISIONS The Panel's most important single product by far is the Initial Decision.
It is appropriate at this point to revise the standard format for Initial Decisions to better convey the judicial nature and comprehensiveness of Board decisions.
The "new" Commission, discussions with Sy Wenner cone.ern-ing writing practices at other agencies, and internal NRC developments all point to the need and the timeliness of the changeover.
The purpose of the new format is threefold:
(1) to emphasize more graphi-cally the judicial nature of the board's work; (2) to improve Commission (and other audiences') understanding of issues and their resolution by the Boards through a readable " judicial" opinion; and (3) to heighten the like-lihood that a more judicial Initial Decision will become the final Commis-sion decision.
The numbered paragraphs " findings" format presently used is hard to read and comprehend for an outsider.
It also can lead to the omission or minimizing of evidentiary discussions and Board reasoning on close questions.
The present fccmat frequently conveys the impression of being the work of a special hearing of ficer er examiner whose findings will form the basis for treatnent in a subsequent, final opinion by a judicial officer.
Present format retains too much of the early hearing examiner style which summar-ized conflicting testimony and then stated a bare, minimally exclained con-clusion.
By comparison, Appeal Board decisions (althougn written from a dif ferent standpoint and for a different purpose) convey the feeling of a final, reasoned decision.
{
Mf 0 y his.WaQ
. Accordingly, absent a Comission _ order in a particular proceeding to the contrary, please make every effort henceforth to follow an Initial Decision i
format basically comprised of two parts:
(1) an Opinion discussing the important issues in the proceeding and how they were resolved; and (2) Findings composed of two elements, findings of Fact and Conclusions of Law.
Each of these two elements are discussed in greater detail below and examples are attached.
It will take a while to become familiar with the f orme and for each person to adapt it to their own style.
It will also plact a possibly greater writing burden on technical Board members.
The mattei has been discussed at some length by the Legal Writing Committee (Mille., Cotter, Frye, Lazo, Linenberger, Paris, Shon and Wenner) should i
you wis1 to consult with someone.
The Findings section is the backbone of the opinion.
It is written essen-tially for lawyers, parties, and appellate bodies.
Few others (including some of the latter) will ever read them. The Findings section is the most dif ficult part of the decision to write and is usually written before the Opinion section.
A few general rules governing the writing of findings are:
1 1.
Do, not summarize pleadings and filing dates; 2.
Do,not summarize testimony; 3.
Do write the findings in declarative sentences and wherever
~
possible use the active voice; i
4.
Do begin with the uncontroverted findings (e.g., parties and Tiirisdiction) and proceed to the controverted and more difficult findings; i
5.
Do cite in parentheses to portions of the record (transcripts or i
Whibits) that support the finding (see the second half of, for example);
(
6.
Do write subsidiary findings that support the ultimate finding (s) l
'oT f act (See, e.g., Attachment 2, Finding 32 and the relationship l
between Finding 19 and Findings 20-26); and l
7.
Do require all parties in cases where the record closes af ter Tanuary 1,1982 to submit findings in accordance with the foregoing principles.
i l
l
=.
~.
I_
/
un
. And last but not least do remember the ultimate rule: "There is no such thing as good writing; there is only good rewriting."*
Thus, the Findings of Fact and Conclusions of Law section is pretty much self explanatory and, in fact, is essentially what is now issued as an Initial Decision.
However, the new format should result in boiling the findings down to the essentials.
While the findings are the bones or skeleton of the decision, the opinion constitutes the flesh and blood.
Generally, the Opinion section has seven
?
basic elements:
(1) a Table of Contents, if necessary; (2) a very orief I
statement of jurisdictional / procedural history; (3) a very brief synopsis of the issues and relief sought; (4) captioned discussions of contentions and major issues and their resolution, including references to controlling statutory and case law and cross references to the numbered Findings of j
Fact (this is the bulk and essence of the 0piniun); (5) a brief statement at the end that all other matters not discussed in the 0 pinion were consid-ered and found either to be without merit or not to affect the outcome; (6) a sentence incorporating by reference the attached Findings of Fact and Conclusions of law; and (7) a two or three sentence Conclusion.
See the decision in the Rickover case at Attachment 2.
There are, of course, many variations within that framework depending on individual style.
As noted, the Opinion is usually written after the findings section is written.
Judge Conford's four page discussion ( Attachment 1) suggests that findings may be omitted if a complete opinion is written, or vice versa, but I do not believe that is workable for Initial Decisions.
(However, the memoran-4 dum opinion alone may be sufficient in shorter decisions, possibly low power, short PIDs, or rulings on contentions.)
j in sum, the Findings section and the Opinion section are interdependent and mutually essential to a f ull statement of not only the f acts found and law c
applied but the analysis and reasoning from which they were derived.
While there is c certain amount of overlap between the Findings and the Opinion, anything not needed to decide the case is omitted, including lengthy procedural histories, summaries of testimony, and discussion of peripheral
- Stolen from Sy Wenner December 8, 1981.
I a..
. issues.
I personally see no need for appendices of witness and exhibit lists.**
Th at is the litigants' and the Appellate bodies' job.
If the Appeal Board thinks something should have been addressed, that is their business.
The Licensing Board should spill ink only on those subjects that in the Board's judgment af fect the outcome.
in the last analysis, the Initial Decision is the critical product by which the Panel is judged.
A more judicial tone in Initial Decisions will im-prove the Commissioners' opinion and understanding of our work.
It should also blunt some of the attacks on the hearing process from the private sec-tor by establishing a body of reasoned opinions readable by all.
- Such lists are useful in preparing decisions, and we will continue to send them to Chase Stephens so that he can verify the completeness of his records.
Attachments:
1.
Conford, " Findings of Fact and Conclusions of Law", The Judges Journal (January 1969).
2.
Public Affairs Associates Inc. v. Rickover, 268 F. Supp. 444 (1967).~
3.
In the Matter of Mechanics National Bank, et al.,
HUD Docket No. 77RiR779) (Excerpts) 4.
In the Matter of Florida Power & Light Co.,
FPC Docket No. E-7210 (1966).
5.
U.S. v. Bethlehem Steel Corp., et al., Civil No.1FS-328 (1958) (Weinfeld, J.) (Excerpts) b