ML20206J146
| ML20206J146 | |
| Person / Time | |
|---|---|
| Site: | Three Mile Island  |
| Issue date: | 06/23/1986 |
| From: | Maupin M HUNTON & WILLIAMS, HUSTED, C.A. |
| To: | Atomic Safety and Licensing Board Panel |
| References | |
| CON-#286-683 CH, NUDOCS 8606270019 | |
| Download: ML20206J146 (19) | |
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UNITED STATES OF AMERICA ;
NUCLEAR REGULATORY COMMISSION 71 303 2 5 @FgI-
%k c . .;ca e Before the Administrative Law Judg A x'~ JewC a (A j ?g gi x '
In the Matter of )
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GENERAL PUBLIC UTILITIES NUCLEAR ) Docket No. 50-289 (CH)
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(Three Mile Island Nuclear Station,)
Unit No. 1) )
MR. HUSTED'S ANSWER TO TMIA'S BRIEF IN SUPPORT OF APPLICATION FOR ISSUANCE OF SUBPOENA On June 5, 1986, TMIA filed an Application for Issuance of Subpoena (Application) for the purpose of requiring the appearance of Gary L. Milhollin at the hearing granted Mr. Husted. Mr. Milhollin, of course, served as Special Master in the cheating hearing held in late 1981. We understand that Mr. Milhollin will not appear absent a subpoena directing him to do so.
By his June 10 Order (Resulting from June 9, 1986, Telephone Conference Call) , Judge Margulies ordered TMIA to support the Application by addressing the following matters:
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e (a) the adequacy of the notice in seeking the subpoena, in the context of this proceed-ing; i (b) the general relevancy of the testimony sought; and (c) whether the request meets the requirements 4
of 10 C.F.R. 2.720 (h) (2) (i) .
Mr. Husted files this Answer requesting that TMIA's Application be denied for the reasons set forth below.
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- I. TMIA Has Given Inadequate Notice in Seeking the Subpoena in the Context of This Proceeding.
j TMIA has not given a persuasive reason for the '
l' lateness of its notice in seeking to subpoena
- Mr. Milhollin. It cannot justify its June 5 Applica-
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i tion on the ground that Mr. Milhollin's identity and j findings are newly discovered evidence.
Indeed, TMIA participated in the December 1981. hearing before l Mr. Milhollin. TMIA is, and has been since April i 1982, fully aware of the Special Master's findings
- and conclusions regarding Mr. Easted. It used those i
findings as early as April 22, 1985 to oppose 1
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n Mr. Husted's request for a hearing. See TMIA's Re-sponse to Licensee's Request for Hearing (April 22, 1985).
Nor can TMIA complain that it did not have prior opportunities to name Mr. Milhollin as a prospective witness. TMIA was admitted as a full party to this proceeding on February 19, 1986. See Tr. of February 19, 1986 Prehearing Conference at 21. It had previously agreed, in a meeting of party represen-tatives on February 10, 1986, to a discovery period j
lasting from March 1 to May 1.
l During the discovery period, TMIA was asked by Mr. Husted to
, [i:dentify every witness who will testify at the hearing in this proceeding on your behalf or who has been requested to testify, will be requested to testify or is likely to be requested to testify, regardless of whether the nature of the appearance be by summons or voluntary, and further state the subject area and substance upon which each witness is expected to testify.
Interrogatory 13, Mr. Husted's First Request for Pro-duction of Documents and First Interrogatories to TMIA (March 14, 1986). See also Interrogatory 14 (a) ,
i GPU Nuclear Corporation's First Interrogatories and
Requests for Production of Documents to Three Mile Island Alert (April 9, 1986).
In its March 28 answers to Mr. Husted's inter-rogatories, TMIA identified Messrs. P, Ward, Christman and Baci as witnesses it intended "at present" to call at the hearing. In its April 23 response to GPU's first interrogatories, TMIA stated that it in-tended to rely on the testimony of Messrs. P, Baci, Ward, Christopher, Smith and Matakas. See Answer 14 (a) and (b), TMIA's Response to GPU Nuclear Corpora-tion's First Interrogatories and Requests for Produc-tion of Documents (April 23, 1986). No mention was made of Mr. Milhollin in TMIA's response to either set of interrogatories.
TMIA has had other opportunities to put .
Mr. Husted on notice that it might call Mr. Milhollin as a witness. Yet it did not do so. Identifying the witnesses was among the matters to be discussed at the final prehearing conference. See Order (Final Prehearing Conference) at 2 (May 6, 1986). Repre-sentatives of the parties met on May 12, prior to the prehearing conference; the identification of witnes-ses was a topic of discussion. TMIA took the
O position that if Mr. Husted's and NRC Staff's wit-nesses appeared at the hearing, it would not seek the attendance of any other witness. See Letter from Michael W. Maupin to Hon. Morton B. Margulies (May 19, 1986). TMIA substantially reiterated its position at the May 20 final prehearing conference. See Tr. of May 20, 1986, Final Prehearing Conference at 88; Re-port and Order on Final Prehearing Conference (May 22, 1986). Mr. Milhollin was not among NRC Staff's
} or Mr. Husted's list of witnesses. l Despite its long-standing knowledge of Mr. Milhollin's findings and conclusions, and despite ample opportunities to put Mr. Husted on notice that it might call Mr. Milhollin as a witness, TMIA waited until June 5, eighteen days before the hearing, to file its Application. Its assertion that "[b]y filing on June 5, 1986, other parties were given more than two weeks prior to the hearing in which to prepare (and] [t]herefore, no party is prejudiced by TMIA's filing" is incorrect. See TMIA's Brief at 2.
Mr. Husted is prejudiced by the lateness of TMIA's filing. The discovery period is ended, the witnesses' prefiled testimony is filed, and the hearing is to l
begin today. Mr. Husted is prepared to proceed with the hearing. If TMIA's application is granted, Mr.
Husted will be compelled to choose between (a) re-questing a delay so that it might depose Mr. Milhollin and (b) going ahead on schedule with no idea what Mr. Milhollin's testimony might be. This ,
is an unfair choice to face at this stage of the game.
Mr. Husted therefore requests that the Presiding Judge exercise the power granted under 10 C.F.R. S 2'.718 to deny TMIA's unreasonably late Application.
II. Mr. Milhollin May Not be Compelled, Nor Should he be Permitted, to Testify.
TMIA seeks Mr. Milhollin's appearance for the'.
purpose of questioning him on the bases for his find- 4 ings and conclusions in the 1981 cheating hearing regarding Mr. Husted. TMIA assertsi -
Gary L. Milhollin was the trier of fact -
during the. reopened hearing on cheating.
His impressions as to the conduct and do-meanor of Husted in support of his findings and conclusions render'him the only witness -
or person to substantiate, amplify and ex-plain the basis foi;the facts stated in his report. -
TMIA's Brief at 3.
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TMIA's Trial Plan indicates that TMIA wishes Mr. Milhollin to testify as to Mr. Husted's "atti-tude, forthrightness and cooperation during 10 December 1981 testimony."
As Special Master and technical interrogator at the prior hearing, Mr. Milhollin served in a judicial, or quasi-judicial, capacity. Presumably he has no independent personal knowledge of any fact relevant in the present proceeding, except that he may have personal knowledge of Mr. Husted's demeanor during '
the earlier hearing. He necessarily attained even this knowledge as a result of the position he occupied at the reopened hearing.
TMIA has not addressed the issue of whether it may compel Mr. Milhollin to testify concerning the bases of his findings and conclusions. It merely assumes that it may do so. Its assumption is wrong.
There are three reasons why Mr. Milhollin's testimony '
should not be required or permitted in this proceeding.
First, to permit questions about Mr. Milhollin's find-ings during the cheating hearing would be an affront.
to the judicial process. Second, it would be preju- !
1 dicial to Mr. Husted. Third, it would be inconsistent i i
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with the NRC's decision to grant Mr. Husted a de novo hearing.
- 1. Affront to the judicial process.
We have found no NRC case where the fact-finder in a previous hearing was called to testify at a later hearing as to matters learned in his judicial or quasi-judicial capacity. The analogous situation of judges and administrative officials being requested to tes-tify as to matters they considered in a previous fact-finding hearing has, however, been the subject of several federal and state court decisions.
All individuals are subject to the lawful au-thority of a competent tribunal to compel testimony of facts within their knowledge and relevant to the issues at hand. Standard Packaging Corporation v.
Curwood, 365 F. Supp. 134, 135 (N.D. Ill. 1973). As a general proposition then, a judge in a former pro-ceeding, or one who acted in a quasi-judicial capacity, may be a competent witness in a subsequent proceeding.
While a person acting in a judicial, or quasi-judicial, capacity may be subpoenaed as a witness, however, "it is imperative when he is called to testify as to action taken in his judicial capacity, to carefully
4 scrutinize the grounds set forth for requiring his testimony." United States v. Dowdy, 440 F. Supp.
894, 896 (W.D. Va. 1977). Otherwise, the judiciary would be open to attacks upon its dignity and integ-rity and would face constant interruptions of its ordinary and proper functioning. Id.
The cases are in agreement that one acting in a judicial or quasi-judicial capacity may not be com-pelled to testify as to the bases, reasons, mental processes, analyses or conclusions used in reaching his decision. See United States v. Morgan, 313 U.S.
409 (1940); Standard Packaging Corporation v. Curwood, Inc., 365 F. Supp. 134, 135-136 (N.D. Ill. 1973);
Merriam v. Town of Salem, 112 N.H. 267, 293 A.2d 596, 598 (1972). To allow such questioning would compro-mise the dignity and integrity of the decision-making process.
In United States v. Morgan, 313 U.S. at 422, the Supreme Court held that it was error for a district court to compel the Secretary of Agriculture to tes-tify as to the manner in which he reached his decision.
The court compared the proceeding before the Secretary to one before a judge and stated that an examination
into the mental processes of a judge would be destruc-tive of judicial responsibility and thus should not be permitted.
The Secretary . . . appeared in person at the trial. He was questioned at length regarding the process by which he reached the conclusions of his order, including the manner and extent of his study of the record and his consultation with subordinates.
His testimony shows that he dealt with the enormous record in a manner not unlike the practice of judges in similar situations, and that he held various conferences with the examiner who heard the evidence. Much was made of his disregard of a memorandum from one of his officials who, on reading the proposed order, urged considerations favorable to the market agencies. But the short of the business is that the Secretary should never have been subjected to this examination. The proceeding before the Secretary "has a quality resembling that of a judicial proceeding." Morgan v. United States, 298 U.S. 468, 480. Such an examina-tion of a judge would be destructive of judicial responsibility. We have explicitly held in this very litigation that "it was not the function of the court to probe the mental processes of the Secretary." 304 U.S. 1, 18. Just as a judge cannot be sub-jected to such a scrutiny, compare Fayerweather v. Ritch, 195 U.S. 276, 306-07, so the integrity of the administrative pro-cess must be equally respected.
In Citizens to Preserve Overton Park v. Volpe, 401 U.S. 402 (1971), the Court determined that exami-nation of an administrative decision-maker would be permitted only with a strong showing of bad faith or
improper behavior. Subsequent cases have adopted this principle, upholding the refusal to enforce sub-poenas for oral testimony of decision-makers as to the basis for their opinions " absent extreme and ex-traordinary circumstances." See South Terminal Corp.
- v. EPA, 504 F.2d 646 (1st Cir. 1974); _K_FC National Management Corp. v. NLRB, 497 F.2d 298 (2d Cir. 1974).
There are no such " extraordinary circumstances" here. TMIA has identified none. Thus, Mr. Milhollin cannot be compelled to testify about Mr. Husted's forthrightness during the earlier hearing, about his cooperation with the NRC investigation or about his actual attitude toward the hearing process.
- 2. Prejudice to Mr. Husted.
Quite aside from whether Mr. Milhollin may be required to testify, we believe it would be error to permit him to testify.
In Merritt v. Reserve Insurance Company, 34 Cal.
App. 3d 858, 110 Cal. Rptr. 511 (1974), the judge in a prior proceeding testified on plaintiff's behalf that in his expert opinion, a witness produced by the defense at the earlier trial had not been persuasive, an opinion that tended to support an inference that
o the defense had not been skillfully handled. Merritt, 110 Cal. Rptr. 527-28. The Court held that the trial judge erred in permitting the judge to testify.
We think it prejudicial to one party for a judge to testify as an expert witness on behalf of the other party with respect to matters that took place before him in his judicial capacity. In such instance the judge appears to be throwing the weight of his position and authority behind one of the two opposing litigants. The Evidence Code absolutely prohibits the judge presid-ing at the trial of an action to testify as a witness over the objection of a party
. . . We think it only slightly less prej-udicial when a judge expresses his opinion as a witness about events that occurred in an earlier trial over which he presided.
Id. at 528.
We hasten to add, in making this argument we mean no disrespect to the Presiding Judge in this proceeding. We have no doubt that if Mr. Milhollin were to testify, the Presiding Judge would be espe- l cially careful to treat his testimony, and the weight to be attached to it, as he would the testimony of any other witness. Still, we believe the principle articulated in Merritt is a sound one and that any suggestion of possible prejudice that might be asso -
l ciated with an appearance by Mr. Milhollin ought to
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be avoided. Certainly, this principle ought to be l
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honored where, as here, no compelling necessity for having Mr. Milhollin appear has been shown.
- 3. De novo hearing.
On appeal of the Atomic Safety and Licensing Appeal Board's decision in ALAB-772, the full Commis-sion took review of whether an adjudicatory board in an ongoing hearing has the legal authority to impose a condition on a licensee which in effect operates as a sanction against an individual, where that individual is not a party to the proceeding and has no notice of a possible sanction or opportunity to request a hearing.
Metropolitan Edison Company (Three Mile Island Nuclear Station, Unit 1) CLI-85-2, 21 N.R.C. 282, 314 (1985).
The Commission decided that "in fairness to Mr. Husted," he should be allowed the " opportunity to request a hearing on whether the Appeal Board's con-dition barring him from supervisory responsibilities insofar as the training of nonlicensed personnel is concerned should be vacated." Id., 21 N . R.C . at 317.
The Commission reiterated in its Notice of Hearing that it was " instituting this proceeding . . . in fairness to Mr. Husted, who was not given notice and an opportunity to intervene in the restart proceeding."
Notice of Hearing at 2 (Sept. 5, 1985).
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J Mr. Milhollin, of course, served as Special Master in the reopened hearing on cheating and gathered the evidence in that proceeding. Mr. Milhollin's findings and conclusions led ultimately to the Appeal Board decision imposing a condition that restricted Mr. Husted's job opportunity.
That hearing, as it related to Mr. Husted, was
" tainted" in the Commission's view, because Mr. Husted was not a party and was not represented by counsel.
To permit Mr. Milhollin to testify here on any subject involving the former hearing would import the " taint" from the earlier proceeding into this one. Mr. Husted is entitled here to a de novo hearing. To permit testimony from the very person who made adverse find-ings against him in the " tainted" proceeding would do violence to that principle.
III. TMIA's Application for Issuance of Subpoena Does Not Meet the Requirements of 10 C.F.R.
S 2.720 (b) (2) (i) 10 C.F.R. 2.720 (h) (2) (i) provides:
The attendance and testimony of the Commis-sioners and named NRC personnel at a hear-ing or on deposition may not be required by the presiding officer, by subpoena or other-wise: Provided, that the presiding officer may, upon a showing of exceptional
5 circumstances, such as a case in which a particular named NRC employee has direct personal knowledge of a material fact not known to the witnesses made available by the Executive Director for Operations re-quire the attendance and testimony of named NRC personnel.
NRC case law establishes two prerequisites for requiring the attendance and testimony of named NRC personnel: (1) direct personal knowledge of a mate-rial fact that (2) is not known to the available wit-nesses. See Pacific Gas and Electric Company (Diablo Canyon Nuclear Power Plant Units 1 and 2) ALAB-519, 9 NRC 42 (1979); Metropolitan Edison Company (Three Mile Island Nuclear Station, Unit No. 1) ALAB-715, 17 NRC 102 (1983).
Mr. Milhollin can have direct personal knowledge of only a single relevant fact: Mr. Husted's demeanor during his appearance before Mr. Milhollin. If al-lowed to testify, then, Mr. Milhollin could give only his factual impressions of Mr. Husted's apparent at-titude during the hearing. Presumably, he has no independent personal knowledge of either Mr. Husted's actual attitude toward the hearing or the underlying factors causing what he perceived to be Mr. Husted's attitude.
Knowledge of Mr. Husted's demeanor at the hear-ing is not unique to Mr. Milhollin. See Cleveland Electric Illuminating Company (Perry Nuclear Power Plan, Units 1 and 2) ALAB-802, 21 NRC 490, 501 (1985).
There were other persons present at the cheating hear-ing -- from GPUN and the NRC Staff -- who could have been called by TMIA to testify to Mr. Husted's demea-nor. Indeed, Mr. Husted has admitted in his pretrial testimony that he has no reason to doubt that at times during the hearing he appeared flippant and to consider the questions in a less than serious manner. 'Je s ti-mony of Charles Husted at 25. He has thus admitted the only fact that Mr. Milhollin could possibly testi-fy to.
In short, no " exceptional circumstances" have been demonstrated by TMIA, and there is no basis what-ever for the issuance of a subpoena to Mr. Milhollin.
IV. Conclusion.
On grounds of inadequate notice, affront to the judicial process, prejudice and unfairness to Mr. Husted and a-failure by TMIA to satisfy the re-quirements of 10 C.F.R. S 2.720 (h) (2) (i) , the Appli-cation should be denied. '
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s Respectfully submitted, CHARLES HUSTED By / h(Muu.2 W N
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Michael W. Maupin Counsel Michael W. Maupin Maria C. Hensley HUNTON & WILLIAMS 707 East Main Street Richmond, Virginia 23219 d
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June 23, 1986 UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION Before the Administrative Law Judge In the Matter of )
)
GENERAL PUBLIC UTILITIES NUCLEAR ) Docket No. 50-289 (CH)
)
(Three Mile Island Nuclear Station,)
Unit No. 1) )
CERTIFICATE OF SERVICE I certify that copies of Mr. Husted's Answer to TMIA's Brief in Support of Application For Issuance of Subpoena, were served on the following persons today by deposit in the U.S. Mail, first class, postage prepaid, addressed to them at the addresses set out below or, in the case marked by an asterisk, by hand delivery:
Secretary U.S. Nuclear Regulatory Commission Washington, D.C. 20555 ATTENTION: Chief, Docketing and Service Section The Honorable Morton B. Margulies Administrative Law Judge Atomic Safety and Ll. censing Board Panel U.S. Nuclear Regulatory Commission Washington, D.C. 20555 George E. Johnson, Esq.
Office of the Executive Legal Director U. S. Nuclear Regulatory Commission Washington, D.C. 20555
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- Ms. Louise Bradford Three Mile Island Alert 1011 Green Street Harrisburg, PA 17102
- Deborah B. Bauser, Esq.
Scott Barat, Esq.
Shaw, Pittman, Potts & Trowbridge 1800 M Street, N.W.
Washington, D.C. 20036 Atomic Safety and Licensing Appeal Board U. S. Nuclear Regulatory Commission Washington, D.C. 20555 Atomic Safety and Licensing Board Panel U. S. Nuclear Regulatory Commission Washington, D.C. 20555
& & W J'bl a o s Michael W. Maupin, Counsel for Charles Husted Dated: June 23, 1986 i
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