Text

Response to Motions by Commonwealth of Pa,Ucs & TMI Alert to Disqualify Administrative Law Judge Iw Smith.Motion Should Be Denied.Certificate of Svc Encl
	ML20114B719
Person / Time
Site:	Three Mile Island
Issue date:	01/24/1985
From:	Blake E, Trowbridge G, Trowbrige G; METROPOLITAN EDISON CO., SHAW, PITTMAN, POTTS & TROWBRIDGE
To:	; NRC COMMISSION (OCM)
References
	CON-#185-277 SP, NUDOCS 8501290448
	Download: ML20114B719 (52)
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UNITED STATES OF AMERICA < 7 ,8 p',O '0 7 NUCLEAR REGULATORY COMMISSION BEFORE ADMINISTRATIVE LAW JUDGE IVAN W. SMITH In the Matter of )

METROPOLITAN EDISON COMPANY Docket No. 50-289$P

) (Restart Remand (Three Mile Island Nuclear ) on Management)

Station, Unit No. 1) )

LICENSEE'S RESPONSE TO MOTIONS BY THE COMMONWEALTH OF PENNSYLVANIA, UCS AND TMIA TO DISQUALIFY ADMINISTRATIVE LAW JUDGE IVAN W. SMITH 8501290448 850124 ~

PDR ADOCK 05000289-O PDR:

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TABLE OF CONTENTS I. Standards for Disqualification.......................... 2 A. Applicable Rules and Regulations................... 2 B. The Bias Must Stem From an Extrajudicial Source............................... 4 C. Movants Must Show " Pervasive Bias" in the Absence of an Extrajudicial Source............................................. 9 D. The Objective " Appearance of Partiality" Test.............................................. 12 E. Prejudgment of Factual Issues..................... 13 F. Stage of Proceeding............................... 15 II. Judge Smith's Letter to Judge Rambo.................... 16 III. Judge Smith's Remarks Concerning the Treatment of Husted and G and H........................ 21 IV. Additional Arguments by Movants........................ 27 V. Discretionary Commission Action........................ 44

VI. Conclusion............................................. 48 i

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TABLE OF CASES Association of National Advertisers

v. FTC, 627 F.2d 1151 (D.C. Cir.

1979), cert. denied, 447 U.S.

921 (1980)............................................ 14, 27 Blizard.v. Frechette, 601 F.2d 1217 (1st Cir. 1979)........................................... 13

~ Commonwealth Edison Co. (LaSalle '

County Nuclear Power Station, Units 1 and 2), 6 AEC 169 (1973)................................................ 13, 14 Commonwealth Edison Co. (LaSalle County Nuclear Power Station, Units 1 & 2), 6 A.E.C. 68 (1973),

rev'd, 6 A.E.C. 169 (1973)................................ 25 Consumers Power Co. (Midland Plant, Units 1 and 2), 6 AEC 60 (February 20, 1973).................................... 3, 27 In re Corrugated Container Antitrust Litigation, 614 F.2d 958 (5th Cir.),

cert. denied, 449 U.S. 888 (1980)...................... 7, 21 Crandell v. United States, 703 F.2d 74 (4th Cir. 19 8 3 ) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6 , 11 Davis v. Board of School Commissioners, 517 F.2d 1044 (5th Cir. 1975) (en banc), -

cert. denied, 425 U.S. 944 (1976).......................... 9 Duplan Corp. v.~Deering Milliken, Inc.,

400 F., Supp. 497 (D.S.C. 1975)............................ 27 Fredonia Broadcasting Corp. v. RCA Corp.,

569 F.2d 251 (5th Cir.), cert. denied, 439 U.S. 859 (1978)....................................... 43 Hamm v. Members of Board of Regents of State of Florida, 708 F.2d 647 (11th Cir. 1983)....................................... 9, 11 Hortonville Joint School District No. 1 v.

Hortonville Education Assn.,-426 U.S.

482 (1976)................................................ 24

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Houston Lighting & Power Co. (South Texas Prcject, Units 1.& 2), 15 NRC 1363 (June 18,'1982)............ 4, 5, 7, 8, 9, 10, 12, 13, 15, 42 In re Int'l Business Machines Corp.,

618 F.2d 923 (2d Cir. 1980).................. 5, 6, 8, 10, 15 Johnson v. Trueblood, 629 F.2d 287 (3rd Cir. 1980), cert. denied, 450 U.S. 999 (1981)....................................... 12 King v. United States, 576 F.2d 432 (2d Cir. 1978)............................................. 6 Knapp v. Kingsley, 232 F.2d 458 (6th Cir.), cert. denied, 352 U.S. 892 (1956)........................................... 11 Long Island Lighting Co. (Shoreham Nuclear Power Station, Unit No. 1), 4 AEC 441 (October 28, 1970)........................................ 23 Long Island Lighting Co. (Shoreham Nuclear Power Station, Unit No. 1), 20 NRC 21 (July 20, 1984)........................................ 3, 14 Long Island Lighting Company (Shoreham Nuclear Power Station, Unit 1), slip op.

(September 21, 1984) (unpublished).................... 27, 43 Public Service Co. of N.H. (Seabrook Station,

~

Units 1 & 2), 18 NRC 1185 (November 16, 1983)................................................... 7, 9 Public Service Co. of N.H. (Seabrook Station, Units 1 & 2), 18 NRC 1356 (December 20, 1983)..................................................... 28 Public Service Electric & Gas Co. (Hope Creek Generating Station, Unit 1), 19 NRC 13 (January 25, 1984)..................................... 4, 15 Puget Sound Power & Light Co. (Skagit Nuclear Power Project, Units 1 & 2), 10 NRC 30 (1979)................................................ 25, 28 Reserve Mining Co. v. Lord, 529 F.2d 181 (8th Cir. 1976)........................................... 11 Smith v. Danyo,~441 F. Supp. 171 (M.D.Pa. 1977),

aff'd, 585 F.2d 83 (3d Cir. 1978)......................... 14

-iv-

_ I

9

. Southern Pacific Communications Co. v. AT&T, 740 F.2d 980 (D.C. Cir. 1984)......................... 10, 24 United States v. - Grinnell Corp. , 384 U.S. 563 (1966)........................................... 4, 5, - 8, 14 United States v. Haldeman, 559 F.2d 31 (D.C. .Cir. 1976), cert.-denied, 431 U.S. 933 (1977)............................ 7, 14, 18, 21 United States v. Peltier, 529 F.Supp. 549 (C.D. Cal. 1982).......................................... 18

. United States v. Ritter, 540 F.2d 459 (10th Cir.), cert. denied, 429 U.S.

951.(1976)................................................ 11 Whitehurst v. Wright, 592 F.2d 834 (5th Cir. 1979)........................................... 14

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UNITED STATES OF AMERICA A!0 07 NUCLEAR REGULATORY COMMISSION .

BEFORE ADMINISTRATIVE LAW JUDGE IVAN W. SMITH In the Matter of )

)

METROPOLITAN EDISON COMPANY ) Docket No. 50-289

) (Restart Remand (Three Mile Island Nuclear ) on Management)

Station, Unit No. 1) )

LICENSEE'S RESPONSE TO MOTIONS BY THE COMMONWEALTH OF PENNSYLVANIA, UCS AND TMIA TO DISQUALIFY ADMINISTRATIVE LAW JUDGE IVAN W. SMITH The Commonwealth of Pennsylvania (Commonwealth),1/ the Union of Concerned Scientists (UCS)2/ and Three Mile Island Alert (TMIA)3/ have each filed motions requesting Administra-tive Law Judge Ivan W. Smith to disqualify himself from further participation in this proceeding. TMIA has further requested that the remanded management hearings be reheard before a 1;/ Commonwealth of Pennsylvania Motion to Disqualify Adminis-trative Law Judge Ivan Smith, dated January 11, 1985.

2/ Union of Concerned Scientists' Motion to Disqualify Admin-intrative Law Judge Ivan Smith and Answer to the Commonwealth's Motion to Disqualify, dated January 14, 1985.

3/ Three Mile Island Alert's Motion to Disqualify Judge Ivan W. Smith, dated January 14, 1985.

L

newly-constituted Atomic Safety and Licensing Board. Licensee opposes the motions.

We first discuss below the standards for disqualification of a judge and then proceed to examine in the light of those standards the matters asserted by other parties as a basis for disqualification.

I. Standards for Disqualification A. Applicable Rules and Regulations Section 2.704(c) of the NRC Rules of Practice sets out the procedure for the disqualification of a board member or presid-ing officer in a licensing proceeding:

If a party deems the presiding officer or a designated member of an atomic safety and licensing board to be disqualified, he may move that the presiding officer or the board member disqualify himself. The mo-tion shall be supported by affidavits setting forth the alleged grounds for dis-qualification. If the presiding officer does not grant the motion or the board mem-ber does not disqualify himself, the motion shall be referred to the Commission or the Atomic Safety and Licensing Appeal Board, as appropriate, which will determine the sufficiency of the grounds alleged.

The Nuclear Regulatory Commission (the " Commission") has long held that there are five grounds for disqualifying an ad-ministrative trier of fact:

(1) if he has a direct, personal, substantial pecuniary interest in a result; (2) if he has a " personal bias" against a participant; (3) if he has served in a prosecutive or investigative role with regard to the same facts as are in issue; n-(4) if he has prejudged factual - as distinguished from legal or policy - issues; or (5) if he has engaged in conduct which gives the appearance of personal bias or prejudgment of factual issues.

Long Island Lighting Co. (Shoreham Nuclear Power Station, Unit 1), ALAB-777, 20 N.R.C. 21, 33-34 (1984); Consumers Power Co.

(Midland Plant, Units 1 and 2), ALAB-101, 6 A.E.C. 60, 65 (1973). The Commonwealth, TMIA, and UCS (collectively "Mov-ants") have moved under section 2.704(c) to disqualify Judge Smith, charging that he is in violation of parts 2, 4 and 5 of the above standard.

Relatedly, Movants invoke the federal judicial recusal statutes, 28 U.S.C. 55 1444/ and 4555/ and Canon 3C of the 4/ 5 144. Bias or prejudice of judge Whenever a party to any proceeding in a district court makes and files a timely and sufficient affidavit that the judge before whom the matter is pending has a personal bias or prejudice either against him or in favor of any adverse party, such judge shall proceed no further there-in, but another judge shall be assigned to hear such pro-caeding.

5/ 5 455. Disqualification of justice, judge, or magistrate (a) Any justice, judge, or magistrate of the United States shall disqualify himself in any proceeding in which his impartiality might reasonably be ques-tioned.

(b) He shall also disqualify himself in the follow-ing circumstances:

(1) Where he has a personal bias or prejudice (Continued)

. _ - _ - _ _ _ - ~

ABA's Code of Judicial Conduct,g/ which is codified by section 455 2/ They allege that Judge Smith has violated these stat-utes and Canon by exhibiting bias against the Movants, by prejudging factual issues in favor of the Licensea, and by en-gaging in conduct which would lead a person reasonably to ques-tion his impartiality.

'B. The Bias Must Stem from an Extrajudicial Source A principal limitation enunciated in the NRC and federal case law on application of the disqualification standards is that t'he information giving rise to the bias or prejudice must have come from an extrajudicial source. United States v.

Grinnell Corp., 384 U.S. 563, 583-(1966); Houston Lighting and (Continued Next Page) concerning a party, or personal knowledge of disputed evidentiary facts concerning the proceeding.

s/ C. DISQUALIFICATION (1) A judge should disqualify himself in a proceeding in which his impartiality might reasonably be questioned, including but not limited to instances where (a) he has a personal bias or prejudice concerning a party, or personal knowledge of disputed evidentiary facts concerning the proceeding.

2/ The Commission has made it clear that Licensing' Board mem-bers are governed by the disqualification standards that apply I to federal judges. -Public Service Electric & Gas Co. (Hope Creek Generating Station, Unit 1), ALAB-759, 19 N.R.C. 13, 20, (1984).

U

__.__u

Power Co. (South Texas Project, Units 1&2), CLI-82-9, 15 N.R.C.

1363, 1365 (1982). To be disqualifying, the alleged bias or prejudice "must stem from an extrajudicial source and result in an opinion on the merits on some basis other than what the judge learned from his participation in the case." Grinnell, 384 U.S. at 583; South Texas, CLI-82-9, 15 N.R.C. at 1365.

Movants continually display confusion as to the meaning and proper application of the "extrajudicial" requirement.g/

They repeatedly assert that the question of a judge's disquali-fication turns on whether he has engaged in extrajudicial con-duct or action -- i.e., conduct or action not occurring in the course of the immediate proceedings. Contrary to their framing of the issue, the forum in which the allegedly biased state-ments are made is irrelevant; only the source of the purported bias is-germane to the disqualification /recusal inquiry.

Movants' reliance on In re International Business Machines Corp. (" IBM"), 618 E.2d 923, 927-28 (2d Cir. 1980), is mis-placed. The IBM court makes clear that only conduct at trial stemming from extrajudicial information provides a basis for disqualification.9/

g/ See, e.g., UCS Motion at 5, 7; TMIA Motion at 10, 13 n.6, 23.

, 9/ The court declares:

IBM has not shown and does not purport to establish or identify any personal connec-tion, relationship or extrajudicial inci-(Continued) i The only significance of the context -- i.e. judicial or extrajudicial -- in which the allegedly biased viewpoints are expressed is that courts have counseled against disqualifica-tion based solely on conduct or rulings at trial, except in ex-treme cases, so as not to hamstring the judge's governance.of the proceeding. As stated in Crandell v. United States, 703 F.2d 74, 78 (4th Cir. 1983), a court must be " cautious not to (Continued Next Page) dent which accounts for the alleged person-al animus of the trial judge. IBM's claim of prejudice is based completely on Chief Judge Edelstein's conduct and rulings in the case at hand. These we have repeatedly held form no basis for a finding of extra-judicial bias. Thus in King v. United States, 576 F.2d 432, 437 (2d Cir. 1978),

we stated:

"The grounds urged for dis-qualification are for the most part rulings made by

[the trial judge] during the course of his judicial duties . . . . Nothing of this kind, what the judge has learned from or done in the proceedings before him, is any. basis for disqualifi-cation; to be sufficient for disqualification the alleged bias or prejudice must be from an extrajudicial-source."

This language highlights TMIA's erroneous framing of the "extrajudicial" issue. They attempt to distin-guish IBM, in which recusal was denied, by noting that the Floyd letter here provides the "extrajudi-cial incident" absent in IBM. TMIA Motion at 13 n.6.

Thus, TMIA ignores the crucial source / conduct dis-tinction drawn by the IBM court.

f.

fetter unduly the necessary governing function of trial court judges."

The insignificance of the context or forum in which alleg-edly biased comments are made is well illustrated by In re Corrugated Container Antitrust Litigation, 614 F.2d 958 (5th Cir. 1980), in which such~ comments were made by the judge in the course of a golf game with an attorney friend -- plainly a forum unrelated to the trial proceedings. The court found no evidence of extrajudicial bias, noting that "while these thoughts were voiced in an extra-judicial setting . . . the

-informational source upon which they drew -- the judge's expe-rience as a judge -- was distinctly judicial." Id. at 967, quoting United States v. Haldeman, 559 F.2d 31, 136 (D.C. Cir.

1976).

In parallel to the federal courts, NRC tribunals have also adopted the requirement that alleged prejudice must stem from an extrajudicial source to be disqualifying. See, e.g., South Texas, CLI-82-9, 15 N.R.C. at 1365-66; Public Service Co. of New Hampshire (Seabrook Station, Units 1 and 2), ALAB-749, 18 N.R.C. 1195, 1200 (1983). In South Texas, the Appeal Board had disqualified-a Licensing Board judge on the basis of the judge's written statement accompanying his denial of a motion to recuse-himself. The Appeal Board.found that the statement, among other things, included a " series of direct attacks of

- [the Judge's] own upon ' the representatives for [the movant], '

cast for the most part in-extremely pejorative terms," and that c' __

these statements reflected a " lack of sensitivity for the role that a judge must necessarily play in any adjudication." South Texas, ALAB-672, 15 N.R.C. at 682 (footnote omitted).

The Commission reversed the Appeal Board and reinstated Judge Hill on the ground that the allegedly disqualifying prej-udice was not extrajudicial. Citing United States v. Grinnell Corp., 384 U.S. 563 (1966), and IBM, the Commission reiterated that alleged prejudice to be disqualifying "must stem from an extrajudicial source and result in an opinion on the merits on some basis other than what the judge has learned from his par-ticipation in the case." South Texas, CLI-82-9, 15 N.R.C. at 1565, quoting Grinnell, 384 U.S. at 583 (emphasis added). The Commission determined that Judge Hill's statement was " based solely on events which occurred during [the] proceeding, i.e.,

[movant's] action and behavior during the proceeding," and that

"[s]ince [the Judge's] statement did not stem from an extra-judicial source, but was based solely on what he learned from his participation in the case, that statement does not provide a legally cognizable basis for disqualifying preju-dice." South Texas, CLI-82-9, 15 N.R.C. at 1366, citing IBM, 613 F.2d at 928.

The Appeal Board in Seabrook reached a similar result.

Movants there had alleged that the judge had exhibited such

. personal animosity and bias toward movant's counsel and other 4 adverse parties during the proceeding-that a further fair pro-ceeding was impossible. In affirming the-judge's refusal to

~

.s recuse herself, the Appeal Board held that no bias could be shown where the allegedly disqualifying bias did not stem from an extrajudicial source,-citing South Texas. Seabrook, ALAB-749, 18 N.R.C. at 1200. As have the federal courts, the Seabrook Appeal Board made plain the distinction that it is the source, and not the setting, of the allegedly disqualifying views that must be extrajudicial:

To demonstrate bias flowing from extrajudi-cial sources, a party must " identify . . .

[a] personal connection, relationship or extrajudicial incident which acccunts for the alleged personal animus of the . . .

judge." The fact that a judge's actions are, for example, erroneous, superfluous, or even improvident, does not, without more, demonstrate bias of an extrajudicial origin. As we [have] noted . . . ,

rulings, conduct or remarks in response to matters that arise during administrative proceedings are not extrajudicial.

Id.

C. Movants Must Show " Pervasive Bias" in the Absence of an Extrajudicial Source Despite courts' disinclination to disqualify judges for conduct in the course of judicial proceedings absent an extra-judicial source of bias, a narrow exception provides that "where such pervasive bias or prejudice is shown by otherwise judicial conduct as would constitute bias against a party, the bias or prejudice need not be extrajudicial in nature." Davis

v. Board of School Commissioners, 517 F.2d 1044, 1051 (5th Cir.

Y 1975) (en banc), cert, denied, 425 U.S. 944 (1976); Hamm v.

-Members of Ed. of Regents of State of Fla. 708 F.2d 647, 651

_g.

(11th Cir. 1983). Movants charge that Judge Smith's conduct in presiding over these proceedings reflects a pervasive bias against them and in favor of Licensee.

The Commission has observed that "[allthough some courts have stated such an exception to the general rule that bias must be extrajudicial, the courts have been hesitant to invoke that exception except in the most extreme cases." South Texas, CLI-82-9, 15 N.R.C.at 1366 (emphasis added). To warrant dis-qualification, a trial judge's conduct must be " egregious,"

significantly interfering with a party's efforts to present its case. Southern Pacific Communications Co. v. AT&T, 740 F.2d

'f 980, 996-97 (D.C. Cir. 1984).

In South Texas, the Commission found that there was no such pervasive bias, notwithstanding the Appeal Board's finding that Judge Hill's remarks demonstrated personal hostility to-ward the movants and a lack of sensitivity for the proper role of a judge. The Commission elaborated on the reasons for such a strict standard for showing " pervasive" bias in the absence of an extrajudicial source:

[A] judge is more than a passive observer in a case involving a te.chnical and complex field; he must penetrate through the par-ties' posturing to decide the accuracy of their presentations. Thus, extra-record conduct such as stares, glares and scowls do not constitute evidence of personal bias. Similarly, occasional outbursts to-ward counsel during a long trial do not provide any basis for finding judicial bias against the party represented by counsel.

South Texas, CLI-82-9, 15 N.R.C at 1366 (footnotes omitted),

citing IBM, 618 F.2d at 928-30, 932.

e.-

e Cases in which reviewing courts have felt compelled to re-move the trial judge have involved repeated, unmitigated epi-sodes of overbearing, stifling, and overtly hostile conduct by the trial judge. In Crandell v. United States, 703 F.2d 74 (4th Cir. 1983), for example, the trial judge's interference with plaintiff's presentation of their case was " glaring," id.

at 76, and " fell far short," id. at 78, of the standards gov-erning judicial conducts; "the court simply assumed the role of an advocate," id. at 77. Similarly, in Reserve Mining Co. v.

Lord, 529 F.2d 181 (8th Cir. 1976), the judge's conduct "re-flect[ed) great bias" against one party, id. at 185; the judge "seem[ed] to have shed the robe of the judge and to have as-sumed the mantle of the advocate," id.

When Movants' allegations of impropriety by Judge Smith are compared to the conduct of the judges in Crandell, Reserve

[ Mining, and other cases in which recusal was ordered, e.g.,

United States v. Ritter, 540 F.2d 459 (10th Cir.), cert.

denied, 429 U.S.'951 (1976), the insufficiency of the present claims is apparent. By no stretch of reasoning can Judge Smith's actions be'found to constitute the " partisan zeal" mandating disqualification. See Hamm v. Members of Bd. of Regents of State of Fla., 708 F.2d at 751; Knapp v. Kingsey, 232 F.2d 458, 467 (6th Cir.), cert. denied, 352 U.S. 892 (1956).

Finally, it should be noted that bias -- pervasive or otherwise -- must be directed against (or in favor of) a party,

1.

to be' grounds for disqualification. Thus, to the extent that Movants. claim that Judge Smith had predisposed views on certain issues, see, e.g., TMIA Motion at 20-21, 23; UCS Motion at 12, these allegations cannot support a charge of personal bias.10/

D. The Objective " Appearance of Partiality" Test As Movants correctly observe, 28 U.S.C. $ 455(a) replaced the old subjective test for judicial bias with an objective

" appearance of partiality" test. However, it is firmly estab-lished that the " appearance of partiality" test is subject to the same-"extrajudicial source" requirement as the personal bias test of 28 U.S.C. 6 144. South Texas, CLI-82-9, 15 N.R.C at 1367; Johnson v. Trueblood; 629 F.2d 287, 290 (3d Cir. 1980)

("both statutes ($ 144 and 6 455(a)) require the same type of bias for recusal").

In South Texas, the Commission rejected a charge of bias against Judge Hill, finding that the alleged bias stemmed from.

no extrajudicial source. As to movant's claim that recusal-was mandated under the objective standard of section 455(a), the Commission stated that "[t]he same policy reasons which limit-

. disqualification to extra-judicial conduct.have been held to similarly limit recusal under section 455(a)." 15 N.R.C at 1367. Thus, even though the Commission did not question the Ap-peal Board's finding that Judge Hill's conduct could have led a jyD/

s The question of prejudgment is discussed in Section I.E.

infra.

m-

p reasonable man to question his impartiality, because the source of the alleged bias was not extrajudicial, the Commission held that there were no grounds for recusal.

It should be stressed that the burden is on Movants to es-

-tablish that a judge's actions provide grounds to question his impartiality. Section 455(a) does not -- as Movants declare --

require a judge to r.ecuse himself if there is any question about the propriety of his sitting. Although section 455(a) may have supplanted the " duty to sit" doctrine, see Blizard v.

Frechette, 601 F.2d 1217, 1220-21 (1st Cir. 1979), it has not replaced that doctrine with a presumption of disqualification.

Id. at 1221. Rather, "[a] trial judge must hear cases unless some reasonable factual basis to doubt the impartiality or fairness of the tribunal is shown by some kind of probative evidence." Id. (emphasis added).

E. Prejudgment of Factual Issues Movants charge that Judge Smith is guilty of prejudging some of the issues remaining to be decided in the current pro-ceedings. Although it is true that a judge does not render a judgment until all parties have had an opportunity to present all of their evidence, there is absolutely nothing improper about a judge forming some preliminary assessments on the basis of the evidence he has heard or giving voice to those assess-ments. South Texas, CLI-82-9, 15 N.R.C at 1365, citing .

Commonwealth Edison Co. (La Salle County Nuclear Power Station, a_ -

Units 1 and 2), CLI-73-8, 6 A.E.C. 169 (March 2, 1973);11/ see also Whitehurst v. Wright, 592 F.2d 834, 837-38 & n.5 (5th Cir.

1979). -"[A] judge's comment is disqualifying only if it con-notes a fixed opinion -- 'a closed mind on the merits of the case.'" United States v. Haldeman, 559 F.2d at 136, quoting United States v. Grinnell Corp., 384 U.S. at 583.

Furthermore, it must be stressed that only the prejudgment of factual issues provides grounds for disqualification.

Judges who have expressed views on legal or policy issues are not thereafter barred from sitting in cases in which those issues are implicated. See Ass'n of Nat'l Advertisers v. FTC, 627 F.2d 1151, 1171 (D.C. Cir. 1979), cert. denied, 447 U.S.

921 (1980); Smith v. Danyo, 441 F. Supp. 171, 179-80 (M.D. Pa.

1977), aff'd, 585 F.2d 83 (3d Cir. 1978). So long as a judge is not biased against a party, the fact that he holds firm

" crystallized" legal or policy views cannot justify recusal.

Long Island Lighting Co. (Shoreham Nuclear Power Station, Unit 1), ALAB-777, 20 N.R.C. 21, 34-36 (1984).

l 11/ As stated in LaSalle, "[p]reliminary assessments, made on the record, during the course of an adjudicatory proceeding -

based solely upon application of the decision-maker's judgment i to material properly before him in the proceeding - do not com-pel disqualification as-a matter of law." 6 A.E.C at 169-70.

n L

F. Stage of Proceeding In determining whether to exercise its discretion to re-move a judge, the Commission has been influenced by whether the hearing is at an early or an advanced stage. For example, in South Texas, after finding no legal basis for disqualification, the Commission additionally refused to order recusal as an ex-ercise of its discretionary authority over pending adjudica-tions. The Commission stated that "[t]he proceeding is now well along and the judge has acquired a valuable background of experience." 15 N.R.C at 1367, citing IBM, 618 F.2d at 934.

Relatedly, and in contrast, in Public Service Electric and

~

Gas'Co. (Hope Creek Generating Station, Unit 1), ALAB-759, 19 N.R.C. 13 (January 25, 1984), an Appeal Board again noted the relevance of the stage of the proceeding. In that case, the Appeal Board disqualified a Licensing Board member due to his prior involvement with technical studies at issue in the pro-

< coeding. The Appeal Board referred to the above consideration voiced by the Commission in South Texas, and noted that, in contrast, the Hope Creek proceeding was at a very early stage -

no evidentiary hearings in the matter had yet begun. Thus, the Appeal Board reasoned that the Board member replacing the.

disqualified judge would not be at a disadvantage. Hope Creek, ALAB-759, 19 N.R.C at 25 n.42.

The remanded hearing on the mailgram and training issues has been completed. Thus,,any replacement for Judge Smith on i the Licensing; Board would be at a severe disadvantage, lacking

c.

h' both the extensive knowledge and background Judge Smith has now e acquired,'and the opportunity to observe and assess the credi-4 bility and demeanor of the witnesses.

II. Judge Smith's Letter to Judge Rambo f

All of the Movants complain of a letter written by Judge Smith to District Judge Sylvia H. Rambo on December 27, 1984.

. The letter requested leniency for James R.-Floyd who had been convicted in Judge Rambo's court of a violation of a federal

- criminal statute in cheating on a Company-administered training examination. Judge Smith based his plea for leniency in part j -on his view that severe punishment is not necessary as a deter-rent to future cheating and that deception in the future is very unlikely. The moving parties all emphasize Judge Smith's i

statement that deception in the future is very unlikely and read into it a prejudgment of issues pending at that time be-fore the Board in;the TMI-1. remanded training hearing.

^

In Licensee's view, the moving parties misread'the meaning and intent ofEJudge Smith's letter. .The-full text'of the rele-vant portion of that letter follows:

'My second~ reason for hoping for lenient treatment for Mr. Floyd is that severe pun-ishment is not necessary as a deterrent. I~

f recognize that, whatever.his motive, cheating on the requalification examination was'a very serious matter and cannot be condoned or appear to be condoned. How-ever, Mr. Floyd's damaged career and.public humiliation will be seen by others-as too

. -high-a risk and price for any gain from cheating.

W More important, however, a severe criminal penalty against Mr. Floyd, is in my person-al view, not needed to insure the integrity of the NRC operators' licensing process at Three Mile Island, nor would it be useful.

The civil regulatory scheme presently ad-ministered by the NRC is exceedingly thor-ough. It is adequate to assure that the operators of Three Mils Island are persons of competence and, in fact, hearings on that very issue are still in progress. I have confidence that the NRC administrative regulatory process, with_ extensive public participation, will provide an orderly and reliable mechanism for assuring that any problems caused by deception respecting Three Mile Island will have been identified and resolved. Deception in the future is very unlikely. A severe sentence for Mr.

. Floyd would add nothing.

Judge Smith's letter does not, as TMIA for example would have

. it, represent a determination that the GPUNC training program is adequate or a prejudgment of any other issues in the pro-ceeding. Certainly, the statement in the Floyd letter that "idleception in the future is very unlikely" does not connote a fixed opinion on the adequacy of the training program. Rather, when read in context, as it must be, this observation is more an expression of confidence in the capacity of the NRC to iden-tify and resolve the problem of deception than it is an en-dorsement of licensee's training program. Indeed, this state-ment is most fairly read to mean that Licensee's program will l

~

be accepted only if it is adequate to prevent future cheating and will be rejected if it does not provide such an assurance.

As such, the statement reflects nothing more than a general confidence that the hearings will be fair and will achieve l

D their purpose -- a view that plainly evidences neither bias nor prejudgment. United States v. Haldeman, 559 F.2d at 135-36.

Moreover, a statement so unspecific in import cannot support a motion to recuse. See United States v. Peltier, 529 F. Supp.

549, 551 (C.D. Cal. 1982).

Even read as the moving parties would have it read, how-ever, the letter is not grounds for disqualification. It rep-resented at most a preliminary assessment of the evidence the

' Board had already heard. As demonstrated above in our discus-sion of the legal standards for disqualification, such prelimi-nary assessments, when made on the basis of facts properly be-

-fore the Board in the hearing, are not grounds for disqualification.

At the time of Judge Smith's letter the Board had received the proposed written testimony of all the parties', witnesses and completed three days of hearing which included the testi-mony of Licensee's principal panel of witnesses, the Reconstituted OARP Committee, and cross-examination of that panel's testimony by all of the other parties. That testimony included a description of the elaborate procedures Licensee had

put in place to prevent cheating on examinations. No party, either in the cross-examination of the Reconstituted OARP Com-mittee, or for that matter at any later time in the hearing, questioned the adequacy of those procedures. The panel also l

testified on other matters which could have a bearing on the likelihood of cheating, such as the adequacy.of training l

i u

r materials and instruction and the format and content of exami-

. nations. Judge Smith had ample basis for making a preliminary assessment of the evidence.

TMIA's attempt to characterize Judge Smith's personal opinions'respecting,_for example, the motives of Mr. Floyd as L

extrajudicial, because not directly reflected on the record, is

.without merit. 12/ Indeed, UCS explicitly ratifies Licensee's 12/ TMIA cites two examples.concerning Judge Smith's attribu- l

-tion of motive to Mr.'Floyd which.it believes are not stated in the' Licensing Board's earlier Partial Initial Decision, LBP-82-56, 16 N.R.C. 281 (1982), or supported by the record of that earlier proceeding - namely."that Mr. Floyd's deception was 'an impulsive act and . . . not motivated by personal ambition'" and "Mr. Floyd ' neglected his examination responsi-bility-out of a misguided but altruistic effort to attend to matters of perceived greater urgency. '" TMIA Motion at 11.

The Licensing Board stated in that earlier decision that Mr. Floyd:"didn't attend FSR classes and therefore was given a closed-book take home exam which he didn't return.

Because of afgrace period, it wasn't until July 1, 1979 that he finally faced suspension from licensed duties. By then he was desperate. On the-evening of July 1, 1979 he was faced with an absolute deadline,- and he was also faced

=with vacation plans beginning the next day. After work VV

[Floyd] induced O_to help him." 16 N.R.C 281, 344. Fur-ther the Licensing Board stated "An equally likely expla-nation is that VV, eager to go on vacation, simply took a, chance.. The latter explanation would be consistent with VV's known impatience with training assignments." Id. at 346_(emphasis added).

Clearly,~there is a sufficient predicate in the Licensing.

Board decision for Judge Smith to state his belief that Mr. Floyd's action was " impulsive."

Mr. Floyd testified that he was aware of the potential im-pact to himself for submitting responses prepared by Mr. O (see Tr. 26,660 and Tr. 26,667-68) and he did not rewrite

~

the work performed by Mr. O by copying it in his own hand- - ':

writing. See Tr. 26,661. Rather than being a case of .

(Continued)

e e

contention that Judge Smith's views arose from no extrajudicial source, but instead were " based upon judgements he had made in the adjudicatory proceeding." UCS Motion at 7. Similarly, the Commonwealth expressly observes that Judge Smith's views in the Floyd letter are " based solely on his judicial role in evaluating Mr. Floyd's testimony at the NRC hearings." Common-wealth Motion'at 5.

But the important point is that, whether or not the por-trayal of Floyd was based on extrajudicial sources of informa-tion, and whatever the propriety or wisdom of Judge Smith's plea for leniency, it has no impact on the remanded hearing, prejudges no issues and exhibits no bias toward any party.

Movants charge that Judge Smith's letter seeking leniency for Floyd violated Canon 2 of the Code of Judicial Conduct, (Continued Next Page)

" personal ambition", Mr. Floyd testified that his reason was his personal safety and_the safety of his family while driving the next day on vacation, stating, "I let my fami-ly come before my job that night." Tr. 26,661.

Judge Smith could certainly conclude that Mr. Floyd's ac-tions were not motivated by " personal ambition." Mr.

Floyd had significant competing interests for his time during the period he had reached the deadline to turn in the exam -- post-accident work at TMI-2 and his family.

Tr. 26,661 and Tr. 26,662. See also Tr. 23,725 and Tr.

23,762-63). Judge Smith, from the record of the proceed-ing, certainly had sufficient foundation for forming an opinion, particularly when reviewed in light of Mr.

Floyd's awareness of the potential consequences of his ac-tion, that Mr. Floyd placed the requirements upon him arising out of.the then current status of TMI-2 and the needs of his family ahead of his own self interest.

.which forbids a judge to testify as a character witness.13/

They then argue that conduct in violation of a Canon so taints the proceedings as to mandate recusal, but, not surprisingly, they offer no authority in support of this proposition. The only Canon relating to disqualification is Canon 3C, and it does not cite violation of any other Canon as conduct war-ranting disqualification. The case law is clear that violation of a' Canon is irrelevant to the disqualification question un-less the conduct in question is encompassed by Canon 3C. In re Corrugated Container Antitrust Litigation, 614 F.2d at 968 (vi-

-olation of Canons 3A(6) and 3B(2)); United States v. Haldeman, 559 F.2d at 134 n.306 (violation of Canon 3A(6)).

III. Judge Smith's Remarks Concerning the Treatment of Husted and G and H The Commonwealth and UCS cite as a basis for disqualifica-tion remarks by Judge Smith in the course of the remanded training hearing relating to the treatment of Mr. Charles Husted, who at the time of the earlier cF9ating hearing was a licensed operator and training instructor, and of Messrs. G and H,-both former reactor operators.

13/ Licensee's counsel.has been unable to find case law or other legal opinions on the applicability of this canon to presentencing advice as opposed to character testimony in court prior to conviction. However, in each case, very different considerations obviously are involved.

b

g_ m -

l*:

In its initial cheating' decision the Board had found that Husted had a poor attitude toward, and had been uncooperative

'with,'the'NRC investigation into possible cheating incidents and had given incredible testimony before the Special Master in explanation of his behavior. While the Board condemned Husted's attitude and behavior, it did not recommend that he lose his license or that he be removed from his position as a training instructor. It did require that Licensee monitor

' closely Husted's! future performance'in his job as a training instructor. The Board also found that G and H had both cheated int Company-administered requalification examinations and recom-mended that Licensee suspend each of them for two weeks without

. pay. 'It did not recommend removal of their operator licenses.

The Commonwealth appealed the Board's decision,-including

.the Board's' failure to remove Husted.and G'and H from their po-sitions. The-appeal was. withdrawn on the basis of a settlement

. agreement between Licensee and the Commonwealth in which Licensee agreed that.Husted, G and H would no longer be allowed to operate TMI-l and that Husted would no longer serve as a-supervisor of licensed reactor. operator training.14/

Judge Smith's comments on.the treatment of Husted,.and to

- > a, lesser extent G and H, reflect both.his view that'these

~

14/;-Licensee subsequently promoted Husted to be the supervisor-of-nonlicensed operator training. The Appeal Board disapproved

'of_thisipromotion and directed as a license condition that Husted be. removed from any supervisory duties in the training of either licensed or.nonlicensed operators.

f k_

individuals had been treated unfairly, possibly to the point of depriving them of due process, and his criticism of both the Licensee and the Commonwealth for the stipulation which re-sulted in their loss of operator licenses.15/ They reflect in addition a deep-seated concern that NRC license proceedings might be used as a basis for unfair actions outside of the pro-ceeding, resulting possibly in a loss of respect for NRC li-censing proceedings or even in resentment among plant personnel which might interfere with safe operation of the plant. Tr.

32,'317-18; 33,058-86. One need not agree with Judge Smith's conclusions on fairness to the particular individuals involved to acknowledge that concern for fairness and due process is both a natural and a desirable trait in a judge and lawyer.

It is true that Judge Smith is not charged in this pro-ceeding with protecting the interests of Licensee's employees.

Nevertheless, his aversion to seeing their rights trampled in the course of these proceedings is a policy concern of a sort commonly held by judges. A judge cannot and should not be ex-pected to hold no views of this kind.

It has long been recognized that " philosophic or profes-sional attitudes or similar generalized mental attitudes do not F

constitute disqualifying bias." Long Island Lighting Co.

15/ Concern over the question of whether Mr. Husted was de-prived of.due process is not peculiar to Judge Smith. The Com-mission itself has evidenced a similar concern by requesting

- parties to the~TMI-l restart proceeding to brief the due pro-

- cess question.' CLI-84-18, 20 N.R.C. 808, 810-11 (1984).

(Shoreham Nuclear Power Station, Unit No. 1), 4 A.E.C. 441, 446 (1970). Judge Smith's desire to protect the interests of Licensee's employees stems from this sort of philosophic or professional attitude. It is not grounds for disqualification unless his mind'is " irrevocably closed" on the issues presented in this case. Southern Pacific Communications Co. v. AT&T, 740 F.2d 980, 991 (D.C. Cir. 1984); see also Hortonville Joint School District No. 1 v. Hortonville Education Assn., 426 U.S.

482, 493 (1976).

UCS's attempt to recharacterize Judge Smith's policy views into a prejudgment against any outcome to the hearing which would have an adverse impact on Licensee's employees will not be approved is a rhetorical chimera. Thus, for example, in Southern Pacific, the trial judge's views that AT&T's telephone monopoly was in the public interest and that the antitrust laws did not and should not apply to AT&T could be equated to a fac-tual prejudgment that no remedy for AT&T's anticompetitive con-duct was warranted. Nevertheless, both the court and the ap-pellant recognized that the judge was not guilty of prejudging the factual issues in the case. Id. at 990.

Movants argue that Judge Smith's statements would at least lead a reasonable observer to believe that he had prejudged some of the issues raised in these proceedings. Again, how-ever, it must be stressed that Judge Smith's views stem from his analysis of the evidence advanced in the hearings and not from any extrajudicial source. Moreover, his words would not u

r generate the required " firm impression" of prejudgment in such an observer. Commonwealth Edison Co. (LaSalle County Nuclear Power Station, Units 1 & 2), ALAB-102, 6 A.E.C. 68, 71 (1973),

rev'd CLI-73-8, 6 A.E.C. 169 (1973).

The Commonwealth and UCS seek disqualification on differ-ent grounds. The Commonwealth sees Judge Smith's remarks as evidence of partiality and bias against the Commonwe'alth. The fact is that, as evidenced by his questioning of Licensee's witness, Dr. Long, Judge Smith was no more critical of the Com-monwealth than he was of Licensee for entering into the stipu-lation. Tr. 32,318-22. Additionally, his remarks had nothing to do with issues now pending before the Board and do not re-flect bias.toward any party with respect to those issues.

There is nothing in Judge Smith's remarks to suggest that he will not decide the issues currently before the Board with com-plete impartiality.

UCS does not argue that Judge Smith has shown bias toward UCS, nor are there any grounds for such argument.16/ Instead, UCS argues that his " obsession" with fair play toward individ-uals results in a " bias" that will prevent him from making de-cisions or imposing license conditions, otherwise justified by the facts, which might result in what he believes to be unfair treatment of reactor operators.

16/ UCS does not have standing to seek disqualification based on alleged bias to another party. Puget Sound Power & Light Co. (Skagit Nuclear Power Project, Units 1 & 2), ALAB-556, 10 N.R.C. 30, 32-33 (1979).

._______________._o

)

To begin with, UCS's speculation is not justified by Judge Smith's remarks.

Judge Smith did express concern over actions which he considered unfair which were taken as a result of the restart hearing but outside that hearing. He also indicated that if the Board had known of such actions in advance, the

-Board might have imposed different conditions or taken other actions. Tr. 33,088-90. He further requested the parties to advise him whether further actions outside the remanded pro-ceeding were planned with respect to Licensee personnel because it could affect the conditions the Board might impose and the results it might come to. Tr. 32,212-13; 33,097. However, it is understandable that a Board might wish to adjust its deci-sion to settlements reached by parties on contested issues. It is understandable that a Board might wish to be aware of the use parties intend to make of findings of fact reached by the Board so that the Board's decision is written and therefore construcd by the parties and the public in the manner it was intended by the Board. In any event, there is no basis whatso-ever for concluding that Judge Smith would not vote to impose any condition which was justified by the record and necessary

[ in the interest of public health and safety.

In any event, observations of_a judge on a matter of law or policy which may be inconsistent with the position of one of the parties are not grounds for disqualification. Bias as a basis for disqualification means personal bias against a party.

Even if Judge Smith's remarks are viewed as-a prejudgment on i

u

9-matters of law and policy, this is not a basis for disqualifi-cation. See Ass'n of Nat'l Advertisers, Inc. v. FTC, 627 F.2d 1151, 1171 (D.C. Cir. 1979), cert. denied, 447 U.S. 921 (1980).

If UCS believes that the Board's forthcoming decision on the remanded training issue fails to impose conditions which UCS believes are justified by the record, its proper remedy is an appeal after the facts have been developed and the Board's de-cision is known, not disqualification of a judge on the basis of speculation that he may commit legal error.

IV. Additional Arguments by Movants TMIA asserts that Judge Smith should be removed "for the pervasive bias and prejudice he has demonstrated on the record in this-proceeding." TMIA Motion at 14.17/ Furthermore, TMIA 17/ Most of TMIA's complaints relate to occurrences during the hearing on the mailgram issue and a prehearing conference which preceded it. They are untimely and should.be dismissed on that ground. A disqualification motion must be filed at the earli-est moment after the moving party obtains knowledge of the facts on which it bases its disqualification claim; failure to do so amounts to a waiver of the objection. Consumers Power Company (Midland Plant, Units 1 and 2), ALAB-lOl, 6 A.E.C. 60, 63 (1973). TMIA, however, does not even address this issue, presumably because it also bases its claim on other more recent occurrences. Yet Commissioner Palladino has stressed that courts will " scrutinize carefully any claim by a moving party thet the motion's untimeliness should be excused because evi-dence forming the basis of the motion developed cumulatively.

In such cases, courts will be particularly strict in assuring that the motion was filed at the earliest possible moment after the necessary information was obtained." Long Island Lighting Company (Shoreham Nuclear Power Station, Unit 1), slip op. at 34 n.52 (Sept. 21, 1984) (unpublished), citing Duplan Corp. v.

Deering Milliken, Inc., 400 F. Supp. 497, 510 (D.S.C. 1975).

(Continued)

r.

.9-seeks the extraordinary remedy that the reopened proceeding on the mailgram and training issues, which is now complete, be

' reheard. TMIA Motion at 1.

Licensee denies that Judge Smith has demonstrated any bias toward TMIA,-let alone " pervasive bias and prejudice." Rather, as discussed below, the instances referred to by TMIA reflect nothing mo're'than rulings adverse to TMIA, occasional impa-tience by the Board with TMIA's' failure to exhaust its argument or with TMIA's reargument of Board rulings, and in some in-stances admonishment by the Board for disrespectful and unpro-fessional, behavior exhibited by TMIA's attorney.

Licensee also strongly opposes TMIA's extraordinary re-quest that the completed portions of the remanded hearing be reheard. Licensee submits.that TMIA is attempting to exploit

-improperly Judge Smith's' letter and bootstrap into its motion

~for recusal a frivolous attack on the existing record -- par-

'ticularly with respect to the Dieckamp mailgram issue upon

'which Judge Smith's letter has no bearing. TMIA offers no (Continued Next Page)

Indeed, TMIA's' failure ~even to provide a reason for the q

. untimeliness of~its claims runs afoul of the requirement ;

, that, as a first proposition, any such late claim should

. include an explanation for the delay. See Public Service Company'of'New Hampshire (Seabrook Station, Units 1 and '

2), ALAB-757,-18 N.R.C 1356, 1363 (1983); Puget' Sound Power and Light Company-(Skagit Nuclear Power Project, Units 1 and 2), ALAB-556, 10 N.R.C. 30, 32 n.6 (1979)

, (citing " unexplained' delay").

r e

.,.__,,-,_Mi , ,..._s, , , . . , - , , . _ . . -

e e*

justification whatsoever for the relief it seeks; nor is there in any of the instances referred to by TMIA the slightest indi-cation that TMIA has been prejudiced. TMIA's request that the remanded proceeding be reheard has no basis in law or fact and should be rejected.

TMIA first refers to statements made by Judge Smith on November 21, 1984 and January 2, 1985. TMIA Motion at 14.

TMIA states that it joins-in the Commonwealth's argument that these statements were not related to the subject matter of the proceeding. This argument, however, is simply false. In the statements made on November 21, 1984, Judge Smith was ruling on a motion by TMIA for sequestration. Although Mr. Dieckamp had already testified, TMIA asked that the sequestration order apply to Mr. Dieckamp and suggested that even his presence at the proceeding might have a chilling effect on other witnesses.

Tr. 29,082. Judge Smith ruled that fairness demanded that a person accused of misconduct be permitted to attend the hearing in which his conduct was being adjudicated,_ absent come compel-ling demonstration of the need-for sequestration.lg/ Tr.

~ 29,083; Tr. 29,091-93. His remarks also responded to TMIA counsel's-insensitive reply tha.t Mr. Dieckamp was not on trial (Tr. 29,083); in response to this remark, Judge Smith pointed out that the adjudicatory decision could indeed have a profound lg/ TMIA again raises these remarks on pages 20-21 of its mo-tion and callously suggests that Judge Smith had no business being concerned with the due process rights of individuals.

n.

'effect on an individual's career. Judge Smith's comments re-

. veal no prejudice, but rather a real concern with fairness in

.the very adjudicatory proceeding he was conducting. Moreover, the suggestion now that Judge Smith's comments were not related to the subject matter of the proceeding is the type of repre-sentation by TMIN which has prompted objection by the parties and admonition by the Licensing Board.19/

With respect to Judge Smith's remarks on January 2, 1985,

. Judge Smith was examining Licensee's witness, Robert Long, on the substance of his direct testimony. Mr. Long's testimony addressed how Licensee had treated Mr. Husted (Long, ff. Tr.

32,202, at 16-18), a fact noted by Judge Smith at the outset of his Board examination (Tr. 32,318). Moreover, whatever criti-cism might be inferred from Judge Smith's questions was directed principally at Licensee and its witness. TMIA was not mentioned and the Commonwealth was mentioned only incidentally.

See Tr. 32,318-19. Judge Smith's questioning was related to direct testimony in the training hearing and did not evince prejudice or bias against either TMIA or the Commonwealth.

TMIA next states that " Judge Smith attacked TMIA's wit-nesses on matters which were unrelated to the subject matter of the proceeding." TMIA Motion at 15. TMIA, however, refers

19/ See, e.g., Tr. 27,573; 27,575-76; 27,961; 28,797-806; 28,835-57; Notification by Licensee of Intended Joint Mailgram Exhibit References and Deposition Stipulations (Nov. 27, 1984),

ff. Tr. 30,105; and Tr. 30,319-23.

r..

D.

only to one witness -- David Gamble; and astonishingly, TMIA refers to Judge Smith's rulings on whether Mr. Gamble's testi-1 mony was relevant and probative. Licensee cannot conceive how statements made in this context are " unrelated to the subject matter of the proceeding."

Nor does the Board's evidentiary ruling evidence bias.

Mr. Gamble's testimony as originally prefiled was in large part a general criticism of the NUREG-0760 investigation. Faced

.with motions to strike the testimony, TMIA first argued that the testimony was r< levant to the weight the Board should give to the conclusions in NUREG-0760. Tr. 29,011. When the Board replied that it did not intend to rely on the conclusions in NUREG-0760 but would make its own conclusions, Tr. 29,015, TMIA changed tack and asserted that Gamble's testimony was really being offered as relevant to the weight to be assigned to NUREG-0760 interviews. Tr. 29,018. TMIA could not, however, identify any interviews that were individually deficient or any particular facts that were not elicited, and TMIA admitted that

.:Lt intended.to draw information from the interviews. Tr.

29,023, 29,033. _ Addressing this new argument, the Board stated to1TMIA: -

[Y]ou are offering Mr. Gamble, it seems to me, as a general indifferent criticism, across-the-board as to the weight to be given all interviews. And to that, I just don't believe it is appropriate, reliable,

.or helpful.

Tr.'29,029.

9

__ - w

e You-haven't persuaded us. . ., because we still don't know what Mr. Gamble -- what you would make do with it. You are going to pick and choose what is reliable. We-told you the standards that we would apply would be traditional standards. And that is, where we see:a witness and we are con-vinced that the preponderance of the evi-dence favors the witness' point of view, then we would accept it even though it's inconsistent with a witness _ summary in the report. The witness summar[y] [of] factual data in this report is [not] binding on us when we have better evidence before us.

Tr. 29,034.

When TMIA's counsel then argued that some witnesses would not appear before the Board,-the Board explained that Gamble's testimony would still not be helpful because it did not indi-cate which interviews might be' defective.

[W]e cannot tell you in advance what weight we give one over another. Mr. Gamble is not helpful. Mr. Gamble's. testimony is rather naive and simple. And it's not in-structive to us. He has a-mechanical ap-proach to how Boards weigh evidence I be-lieve. So with that you have not made a case for Mr. Gamble's. testimony.

'Tr.:29,034-29,035.

Once again, it is obvious that Judge Smith's comments are addressing a matter in this proceeding -- the relevance and probativeness of a piece of testimony. That his' ruling was ad-verse to TMIA does not. indicate prejudice; and his remarks con-cerning Gamble's testimony merely indicate that the Board found that the testimony in question had no_ probative valuel TMIA argues that the next day Judge Smith " recognized the imprudence of his remarks. " TMIA Motion at 15. The remarks to

. s which TMIA refers, however, do not indicate tnat Judge Smith believed his determination to have been in error. Rather, he expressed concern that his comments might be construed as dep-recatory of Mr. Gamble. As Judge Smith stated:

After we adjourned last night I became con-cerned that I may have been unfair to Mr.

Gamble in my characterization of his testi-mony. I have reviewed the transcript and I believe that in fact I have been unfair.

I disparaged in general terms his testimony calling it rather naive and simpl[e]. I don't think that is a fair comment. One, the testimony appears to me to be directed as an overall criticism of the investiga-tion, and, as such, it is not as I charac-terized it.

My concern is the application of his view of it to this particular adjudication is not instructive to us because of the expressly limited nature of the issue.

So I think it is unfortunate because Mr.

Gamble has gone to some trouble to come forward and express his views, and that -

should not be discouraged by disparagement by any means. He should be encouraged to express his vie [w]s when he feel [s] that they are important, as he does. So for that we are appreciative.

Tr. 29,059 (emphasis added). Far from showing bias, the com-ments, which address a Board ruling, display considerable sen-sitivity to Mr. Gamble and the hearing process.

TMIA also states that later " Judge Smith again attacked Mr. Gamble, this time for what he perceived was Mr. Gamble's uncthical or illegal failure to inform interviewees in the NUREG-0760 investigation of their Miranda rights." TMIA Motion at 15. TMIA's pejorative characterization of the exchange, however, is refuted by the record.

m

Mr. Gamble had testified that his role as a member of the NUREG-0760 investigative team was to protect the interest of the Department of' Justice. The Staff witness, Norman Moseley, however, had described Gamble's role as one to prevent en-croachment in criminal matters -- to prevent inquiry into potentially criminal matters. Tr. 29,828-29. TMIA's counsel referred Mr. Gamble to Mr. Moseley's testimony and asked if it were correct. Mr. Gamble explained that his role was not to limit the investigation but rather to ensure that areas of the

' investigation whose result might have value for criminal pur-poses were pursued and conducted in the best manner, in order that the results could be used for criminal prosecution. Tr.

30,682-83. At this point, Judge Smith perceived an inconsis-tency.in the logic of Gamble's testimony and therefore sought clarification. Judge Smith asked how information developed without the interviewees having been advised of this criminal aspect of the investigation could be used for criminal prosecu-tion. Tr. 30,688. Judge Smith explained that one could rea-sonably infer from the assignment of an OIA investigator to the I&E team that the purpose of the assignment was in fact to pre-vent an inquiry that might frustrate a subsequent Department of Justice investigation because of due process. considerations.

Tr. 30,869. Judge Smith was clearly pursuing what he perceived to be a contradiction in Gamble's testimony. As Judge Smith further explained:

n,

."s

~

[Mr. Gamble] testified. earlier that he was not there [as---] [a]s a matter of fact, he

_ objected to'the language that he was a m working member of the [ investigative] group and he wanted to_make clear that no, he was not a working. member of the group for an I&E enforcement action. He was there as a criminal investigator for the Department of Justice,=and that was his only purpose

'there and that's all he did. And now some-how it is retreated, that he was not there to expand it beyond enforcement purposes, not to.do anything inconsistent with that, and yet the-two ideas are mutually exclu-sive.

Tr. 30,695. Judge Smith did not, however, permit further~in-quiry becauseihe felt _the inquiry had digressed. Id.

.TMIA claims th'at Judge Smith admitted that his questioning

? .

of Mr. Gamble was-improper. TMIA's Motion at 16. However, Judge' Smith merely indicated he had digressed, having been in-trigued by the legal issue. Judge-Smith did not state that his questioning was improper,.but rather stated that his purpose in its initial pursuit was improper. See Tr.'30,767. That Judge Smith initially pursued a legal issue because it intrigued him hardly shows bias =or prejudice. Moreover,. Judge Smith stated

.quite clearl'y that>the questioning had relevance, ijd., although

.heLruled that it had been sufficiently pursued. Tr. 30,770.

TMIA next refers,-in particularly untimely; fashion,_to'the Board's ruling during'a prehearing conference on November 9, 1984'on-the admissibility of a deposition of former Commission--

'er.Bradford. TMIA states that Judge Smith " attacked the mo-

..j tives of TMIA"~in' calling Commissioner Bradford. TMIA's Motion F'- .at 17.

~~ ,

c7 -

The Board, however, was not " attacking the motives of TMIA." It was considering whether Commissioner Bradford's ap-pearance, as a witness on behalf of TMIA, would violate the Ethics in Government Act. It was the Board's conclusion that the Ethics in Government Act embodied a principle that former Government officials should not be permitted to act as witness-es where their sole value to their sponsor wa's the impression and influence that their status would have on the adjudicatory

' tribunal. See Tr. 27,842-44. The Board therefore carefully scrutinized Commissioner Bradford's testimony for significant factual testimony, but as TMIA itself explained, Commissioner Bradford's testimony was being offered only for his opinion whether Mr. Dieckamp had made sufficient inquiry into the facts

_ prior to sending his mailgram and whether the type of informa-tion that existed at the time the mailgram was sent constituted evidence. Tr. 27,836-37. Given that those were both legal questions which TMIA could argue and the Board decide, the Board, after repeatedly seeking justification for the admission of the testimony from TMIA, ruled: ,

[I]t is our view in looking at the entire package which you presented with respect to former Commissioner Bradford that the prin-cipal purpose and perhaps the only purpose-we can infer from your package is that you

.are offering him because of his status.

That reason flies right in the face of the Ethics in Government Act.

Tr. 27,841-42. See also Tr. 27,851.20/ TMIA subsequently 20/ In its Motion, TMIA states that it has never represented or implied that it intended to call former Commissioners be-(Continued)

er --

]

sought and was denied interlocutory review of this ruling.

ALAB-791, 20 N.R.C. (slip op. December 3, 1984)

With respect to the November 9, 1984 Prehearing Confer-ence,.TMIA states that Judge Smith "also implied that TMIA was somehow deceiving the two former Commissioners whom TMIA pro-posed to call of the purpose and use to be made of their testi-mony." TMIA's Motion at 17 (emphasis added). TMIA's artfully-worded suggestion is unfounded.

The Board was ruling on a motion to subpoena Dr. Gilinsky.

It was, therefore,-inquiring into the relevancy of'the testi-mony that Dr. Gilinsky might give, as outlined in three vague sentences on page four of TMIA's Motion for Leave to Present Testimony of Victor Gilinsky on Dieckamp Mailgram Issue Without Prefiling Written Testimony (Nov. 1, 1984). TMIA, however, de-clined to elaborate on the testimony that Dr. Gilinsky might providc and therefore failed to make a showing of its relevancy and probative value.21/ Judge Smith's entire statement, of which TMIA quotes but a portion, simply indicates the Board's (Continued Next Page) cause of their status. TMIA Motion at 17 n. 9. The Board did not say that TMIA had.but only that the Board, when given no other explanation, could infer no other purpose. Signifi-cantly, TMIA has.never denied that the status of the former Commissioners was instrumental in their decision to-call these individuals as witnesses.

21/ In this regard, TMIA states in footnote that the Board accused" TMIA of " withholding information." TMIA Motion at 18

n. 10. This is simply a mischaracterization of the Board's ruling. See Tr. 27,857-69.

m inability to determine (and TMIA's failure to show) whether Commissioner Gilinsl:y possessed relevant and probative informa-tion.

JUDGE SMITH: I would like to add to the Board's consideration with respect to Dr. Gilinsky and the factual area. We are not comfortable that Dr. Gilinsky has been fully informed concerning the use that is being made with your views of his views.

We were taken with the total lack of information that former Commissioner Bradford had about the issues as to which he was being deposed and we are not confi-dent that given the accuracy of your state-ments one through three, that Dr. Gilinsky is thoroughly informed as to what the nar-rowness of our issues are and what we are allowed to do. That is part of the prob-lem.

We cannot read with any sense of cer-tainty or even of being reasonably assured that Dr. Gilinsky is sitting out there with information which would be important to our determination. If we had that feeling, it would be a different matter but we don't have that feeling. We don't have confi-dence, any confidence, I do not have any confidence in your presentation.

Tr. 27,870. No " deceit" was " implied."

TMIA states that Judge Smith " attacked" TMIA for the posi-tion it had taken on the training issue "past and currently."

TMIA continues by stating that Judge Smith attributed to TMIA and Louise Bradford responsibility for poor attitude and morale at TMI. TMIA' Motion at 18.

With respect to the statements to which TMIA refers, those statements were again made in the context of an evidentiary ruling. TMIA had proffered as an exhibit a document which F- c reflected G?U Nuclear's concerns after the cheating proceeding about how to encourage. people to cooperate with inquiries and come forward with information. TMIA Training Exh. 6. See Tr.

32,384-85. An attachment to the document contained brain-storming session comments concerning morale problems created by the 1981 cheating proceeding. In ruling on the admissibility of the document,.the Board was faced not only with multiple hearsay, Tr. 32,393, but also with a document of dubious rele-vance and probative value. The Board was particularly per-

turbed by TMIA's claim that the morale problem created by the cheating proceeding evidenced that management was not respon-d sive to operators' needs'uring training. See Tr. 32,395. The Board was concerned that TMIA's argument was circular -- that an attendant but unfortunate impact of the adjudicatory pro-ceeding on cheating was being used by TMIA as self-fulfilling prophecy. Such possibility quite properly raised questions of fairness. The Board's ruling,.however, ultimately turned on

-the infirmities in the document's reliability. -Tr. 32,401-02.

The Board's statements made no rtMerence to TMIA's past~

" position" .cn1 training, and the Board attributed the morale

. problem mentioned in TMIA Training Exh. 6 not to TMIA alone, but to the cheating proceeding in general, .in which TMIA was a

. participant. The Board's concern with TMIA's argument-did not

~

evidence bias, and the wholly separate evidentiary basis for the Board's ruling negates any claim that TMIA might have been

, prejudiced.

TMIA continues on page 20 of its Motion by asserting that Judge' Smith has attempted to prevent TMIA counsel from confer-ring by admonishing them not to confer during the hearings.

TMIA's assertion is deceptive and misleading. As the citation t'o which TMIA refers reveals, Judge Smith's " admonishment," to the extent it might be construed as such, is prompted by TMIA's counsel talking while being addressed by the Board. Tr.

30,958. TMIA's lone citation, however, does not reveal the t: ue extent of the consistent pattern of disrespectful behavior that was displayed by TMIA in this proceeding. TMIA on a num-ber of other occasions laughed at the Licensing Board or at witnesses or talked when being addressed by the Board. The Board admonished TMIA for such conduct at least twice off the record and a number of times on the record. See Tr. 28,298-99; 29,039; 29,798; 30,150; 30,506; 30,687; 30,958; and 31,708.

TMIA next states that Judge Smith has attacked TMIA coun-sel when she was attempting to put objections on the record, and cites'Tr. 31,707-10. TMIA Motion at 20. Judge Smith's comments at these pages do not constitute such an attack. At page 31,707 to 31,708, Judge Smith does admonish Ms. Bernabei, but'for making sarcastic comments while Judge Smith was in-

'structing the parties to file proposed findings. On page 31,712, after hearing TMIA's objections to a format for pro-posed findings offered by Licensee, Judge Smith permits TMIA to

. . . - . - ~

r**'~.

I

, E-L organize its proposed findings in whatever manner it wishes.22/

On page 20 of its Motion, TMIA also argues that Judge Smith's bias was manifest in the prior partial initial deci-sions on management issues. TMIA offers no explanation why these decisions evince bias, nor any explanation why such un-timely assertions should be revived literally years later. As TMIA' acknowledges, such claims were briefed in TMIA's excep-tions-to the prior decisions. Their rejection is res judicata.

Additionally, TMIA claims that on several occasions Judge Smith " signaled to witnesses the correct answers to questions so that their answers would appear credible." TMIA's Motion at 22 (emphasis added). TMIA's use of the< word " signaled" is once more deceptive ~and misleading, and the implication is false.

Judge Smith " signaled" to nobody. After being informed by Licensee at a bench conference that a witness's answer (to quite a minor question, whether the witness had confirmed a letter on his own initiative) might be incorrect, Judge Smith

-again put the question to the witness. The witness admitted that his recollection might be faulty, but stated that he did not remember anybody asking him to confirm the letter. Tr.

31,454-60. Judge Smith did the same when another witness did 22/ TMIA's misperception of Jddge Smith's comments is obvious from the transcript. In fact, Judge Smith's views on the for-mat for findings were expressly intended to aid the parties, including TMIA, and to ensure no party's views were overlooked by the Board in prepa'ing r its decision. See Tr. 31,708-10.

ML20114B719

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