ML20248D554

Motion for Recusation.* Requests That NRC Recuse from Deciding on Macktal Cases on Basis That NRC Will Not Be Fair & Impartial Tribunal.W/Certificate of Svc

ML20248D554
Person / Time
Site:	Comanche Peak
Issue date:	07/03/1989
From:	Kohn S KOHN, KOHN & COLAPINTO, P.C. (FORMERLY KOHN & ASSOCIA
To:	NRC COMMISSION (OCM)
Shared Package
ML20248D557	List: ML20248D554 ML20248D573
References
CON-#389-9012 NUDOCS 8908110074
Download: ML20248D554 (4)

Text

-

UNITED STATES OF AMERICA " N50 NUCLEAR REGULATORY COMMISSION 19 Jll -5 A9 :33

)

i In re JOSEPH MACKTAL ) OI-4-89-008 ,.f u _ ,

' ) DOC 50 * , ."VCf.

~ ': r. N ~ u' Motion for Recusation Mr. Macktal hereby requests the NRC Commission recuse themselves from any other consideration of any matter related to Mr. Macktal.

It is one of the mainstays of our system of laws that a State cannot affect a person's personal or property rights except after a hearing before a fair and impartial tribunal.

Fuentes v. Shevin, 92 S.Ct. 1983 (1972); In re Munchison, 75 S.Ct. 623 (1955); Wall v. American Optometric Assoc._Inc.,

, 379 F.Supp. 175 (N.D.Ga. 1978) aff'd, 95 S.Ct. 166 (1974).

A fair and impartial tribunal requires at least that the trier of fact be disinterested. Tuney v. Ohio, 47 S.Ct. 437 (1927); Wall, 379 F.Supp. at 188, and that he also be free from any form of bias or predisposition regarding the outcome of the case. Pillsbury Co. v. FTC, 354 F.2d 952 (5th Cir. 1966); Wall, 379 F. Supp. at '88. Not only must the procedures be fa;r, the very appearance of complete fairness must also be present. Amos Treat & Co. v. SEC, 306 F.2d 260 (D.C.Cir. 1962) ; Wall, 379.F.Supp.'at 188. These principles apply not only to trials, but equally, if not more so, to administrative proceedings. . Ohio Bell Telephone-Co. v. Public Utilities Com'n, 57 S.Ct.. 724 (1937); Wall,-

379 F.Supp. at 188 (emphasis supplied).

890G110074 090703 PDR COMMS NRCC CORRESPONDENCE PDR

] S63

4 Because of allegations raised by Mr. Macktal the Commissioners of the NRC have been embarrassed in front of national television, the press and before the Senate i

Oversight Committee on Nuclear Regulation. Seo Testimony of the NRC before the Senate Subcommittee on Nuclear Regulation, various press clippings and the CBS news story on Macktal. The subpoena issued for Macktal by the Commissioners after the harsh criticism leveled on the commissioners by members of the subcommittee raises an appearance that the NRC will not be a " fair and impartial tribunal." The prior actions of the NRC indicate that the NRC is biased against Mr. Macktal, The subpoena is in retribution for the embarrassment Mr. Macktal caused to the NRC, and even if this were not so, the appearance of retribution is clear. As they have done on two previous occasions, the NRC is trying to find against Macktal. The NRC wants to use his testimony so that their decision will be given preclusive effect in Macktal's case before the SOL.

The NRC should rescue themselves from deciding Macktal's cases. As the Supreme Court said, " judges also are human, and may, in a human wey, quite unwillingly j identify offense to self with obstruction to law."

Offutt v. U.S. 75 S.Ct. 11 (1954). The NRC Commission l sho ~,,1 allcw the Fifth and D.C. Circuit Courts and the  !

I Departments of Labor and Justice to determine Macktal's l Concerns.

l

}

l 2

l l

i

= ., - - - . _ -- - - . - -..

pg.

1 Respect lly submitted, j

Stephdh M. Kohn.-

Michael D. Kohn By:- ' Dave Schaff

' KOHN, KOHN & COIAPINTO, P.C.

526 U Street, N.W.

Washington, D.C. 20001 (202) 234-4663' Attorney.for J. Macktal' July 3,.'1989

'i L

t 3

4

1 CERTIFICATE OF SERVICE kh((

I HEREBY CERTIFY that a copy of the' foregoing'Mo ion A9.*31 for Recusation and Motion for Reconsideration were.s r g . ,, g

-upon the _following parties on the 3rd day of July,- 1989: 8RA C 0 '

By First Class Mail Chuck Mullins Lando Zech Secreta g of the NRC U.S. Nuclear Regulatory-Commission Washington, D.C. 20555 By Hand' Delivery Secretary of the NRC

.2120 L Street, N.W.

Washington, D.C.'2020037 1

Secretary of-the NRC (White Flint)

By:

9.

r w .-

I l

i I

- - - _ _ - - _ _ _ _ _ . _ - _ _ _ _ _ _ _ _ _ _ _ . , _ _ _