ML20084F399

Suggestion for Expungement of 840413 Order for Dj Scheidt to Show Cause Why Disciplinary Action Should Not Be Imposed. Order Unwarranted,Unprecedented & ASLB Entirely W/O Authority to Discipline Dj Scheidt.W/Certificate of Svc

ML20084F399
Person / Time
Site:	Shoreham File:Long Island Lighting Company icon.png
Issue date:	05/01/1984
From:	Freeman M ARNOLD & PORTER, SCHEIDT, D.G.
To:
References
OL-4, NUDOCS 8405040120
Download: ML20084F399 (17)

Text

. . .

qpio 00CMETED UNITED STATES OF AMERICA USNRC NUCLEAR REGULATORY COMMISSION Before the Atomic Safety and Lice sin B r$031 e - < - .e ,

)

In the Matter of )

)

LONG ISLAND LIGHTING COMPANY ) Docket No. 50-322-OL-4

) (Low Power)

(Shoreham Nuclear Power Station, )

Unit 1) )

)

SUGGESTION FOR EXPUNGEMENT OF ORDER TO SHOW CAUSE AGAINST DOUGLAS J. SCHEIDT On April 13, 1984, this Board Ordered Douglas J.

Scheidt, counsel for Suffolk County, to show cause why

• /

disciplinary action should not be imposed against him.-

The sole complaint raised concerning Mr. Scheidt's conduct in this proceeding Aegards a statement, made in a cover letter signed by Mr. Scheidt and attached to two discovery requests, that

'Suffolk County believes that the Board's April 6 Memorandum and Order is illegal, for reasons which include the fact that the schedule denies the County due process of law."

• / The Board originally set a hearing on the Order to Show Cause for April 18, 1984. Upon a Motion To Stay filed by Mr. Scheidt on April 16, the Board, by Order issued that same day, continued the hearing to a date subsequent to May 5, 1984.

fok G

DOC OO j i

a 503

. l It is plain'that the use of the term " illegal" in its proper context was intended.to mean that the expedited schedule set by the Board's Memorandum and Order is contrary to governing sources of law including the due process clause of the United States Constitution.

It was, of course, not intended to suggest as the Order to Show Cause stated that the Board's conduct in setting the schedule asserted to be in violation of the Supreme law of the land was a deliberately felonious act or involved criminal conduct by the Board.

It is equally plain that Mr. Scheidt's position and that of his client, Suffolk County, was reasonable, not frivolous and very well may have been completely correct. This is conclusively established by the fact that on April 25, United States District Court Judge Norma Holloway Johnson issued a temporary restraining ,

order enjoining the Board fran continuing with the proceeding on Lilco's Motion on the same grounds set forth by Mr. Scheidt in the letter called into question by the Board. Judge Johnson found that:

"The expedited hearing schedule threatens to make plaintiffs' participation in the ad-

. ministrative proceeding-meaningless because of the lack of time for effective preparation.

Plaintiffs have presented serious-allegations of constitutional violations and have suf .

ficiently demonstrated that their allegations

~

may support the Court's jurisdiction . . . .

It appears that the discovery-period permitted by the Board has precluded plaintiffs from 1

j .

l I-e preparing for the hearing on LILCO's unique 4

and technically complex issue. When parties

' to an action are not permitted to prepare their case, the fundamental fairness of the administra-l tive process is called into question.. Mario M.

Cuomo v. United States Nuclear Regul'atory

Commission, (D .D .C . April 2 5, 1984) Memorandum-l Opinion at 5."*/

} The temporary restraining order will be dissolved i

as a result of the Nuclear Regulatory Commission's i

Order of April 30, 1984, vacating the expedited.

l 1 Nonetheless, Judge Johnson's

schedule set by the Board.

opinion' forcefully. demonstrates the substantial nature f

of Suffolk County's concerns as voiced by Mr. Scheidt L

j and emphasizes his duty to raise the issue to protect

! his client's rights.

! In light of the passage of time and Judge Johnson's i

opinion, we hope that the Board will recognize that Mr. Scheidt's reference to the Board's Apri1~.6 Memorandum and Order as illegal was an exemplary i

i type of advocacy required by the Code of Professional' i Responsibility and the Constitution of the.-United States i

! and not, as it first erroneously supposed, a personal-i i attack on the Board and its members.

I t

Mr. Scheidt is 30 years of age, he received -his

! undergraduate degree from Northwestern University and i

i has his law' degree from Drake University. 1Following law l ,

• / A copy of Judge Johnson's Memorandum and'Ordar'is~ J attached to this motion for the convenience of the Board.

1 l l l , .

)

, , . _ , , . _ . _ . . . ,_ ~ . . - - . . , , ~ , .. _..__.m.... , , . . . s. . , , . , .m... _

school, Mr. Scheidt was law clerk to Judge-Martin D.

Van Oosterhout of the United States Court of Appeals for the Eighth Circuit.. In 1979, he joined the General Counsel's office of the Securities Exchange Commision I

as a staff attorney and was' promoted to the-position of special counsel in October, 1981. In December, 1983, t

Mr. Scheidt joined the respected law firm of Kirkpatrick, f Lockhart, Hill, Christopher and Phillips as an associate.

2 He is a member of the bar of the State of Iowa and is applying to the District of Columbia bar. He has a 1

promising future ahead of him. The very issuance of the Order to Show Cause is a blot upon the otherwise unblemished career of Mr. Scheidt and threatens serious I harm to his reputation and professional career. For-

! example, it must be listed as a pending disciplinary 4

proceeding on his application to the District of Columbia Bar.

We are sure that on mature reflection'and in light fI of the result of subsequent legal proceedings, the' Board.

will not desire to attempt to impose undeserved-punishment on a young lawyer for carrying out his responsibilities

. under the ' Code' of Professional Responsibility as fue I

sincerely understood them. This is particularly so since the letters Mr. Scheidt filed were not intended and cannot

[ - properly be considered as~a persona'l' attack on the l members-of the Board. ,

i .

I _m. .. _. 4 - - ., , m.

1 Accordingly, we suggest that the Board sua sponte withdraw, expunge and. strike from the record the Order to Show Cause issued against Mr. Scheidt on April 13.

If the Board should not take the action requested, it will be necessary for us to proceed in an adversarial manner by filing a motion for dismissal of the charges against Mr. Scheidt on the grounds that the Order To Show Cause is unwarranted and unprecedented and that the Board is entirely without authority to discipline Mr. Scheidt for the statement in question.

Respectfully submitted,

. (

\' ,,

%'sf. n; w_

Milton V. Freeman Bruce L. Montgomery David P. Gersch Arnold & Porter 1200 New Hampshire Ave., N.W.

Washington, D.C. 20036 (202) 872-6896 Counsel for Douglas P. Scheidt-I h

1

. 1 CERTIFICATE OF SERVICE In accordance with our position of serving only those parties directly involved with the Order To Show Cause issued to Douglas J. Scheidt, I hereby certify that copies of the attached " Motion For Reconsideration of Order to Show Cause" has been served upon the following persons by deposit in the U.S. Mail, first class, postage prepaid, this 1st day of May 1984, unless service by other means is indicated:

By Hand Delivery To: At the following Address:

Judge Marshall E. Miller Atomic Safety and Licensing Board Chairman U.S. Nuclear Regulatory Commission Judge Glenn O. Bright 4350 East-West Highway; 4th Floor Eleanor L. Frucci, Esq. Bethesda, Maryland 20814 By U.S. Mail To:

Judge Elizabeth B. Johnson Oak Ridge Nat'l Laboratory P.O. Box X; Building 3500 Oak Ridge, Tennessee 37830 Honorable Peter Cohalan Suffolk County Executive County Executive /

Legislative Building Veteran's Memorial Highway Hauppauge, New York 11788 J

(

2'-

By U.S. Mail to:

Martin Bradley Ashare, Esq. Docketing &' Service Branch ( 3)

Suffolk County Attorney Office of the' Secretary H. Lee Dennison Building U.S. Nuclear Regulatory Commission Veterans Memorial Highway Washington, D.C. 20555 Hauppauge, New York 11788 a

m David P. Gersch i

Dated: C fp /Qpf l

i

' $ < / , , <. [ f T LCL. kq ., .

rou r-UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF COLUMBIA MARIO M. CUOM3, Governor of  : bbd 20 N04 the State of New York, et al., -,,,' ,, .

JAMES F. DkVE(, duk  !

Plaintiffs,  !

v.  : Civil Action No. 84-1264 1

-"~ UNITED STATES NUCLEAR .

REGULATORY COMMISSION, l et al.,

Defendants.  :  !

MEMORANDUM OPINION Plaintiffs, the Governor of the State of New York and the County of Suffolk, bring this action to e'njoin the commencement of hearings before an Atomic Safety ^and Licensing Board (Licensing Board) of defendant, the U.S.

Nuclear Regulatory Commission (NRC or the Commission),

concerning the proposed low power operation of the Shoreham Nuclear Power Station. The owner of the Shoreham facility, the Long Island Lighting Company (LILCO) , intervened as a l 1

l

! de$endant.- The hearing, scheduled to begin on April 24, t

1984, is to evaluate LILOO's proposal to operate Shoreham 4

without an onsite emergency electric power system. .

~

On March 20, 1984, LILCO submitted to the NRC its proposal to operate.the Shoreham plant at lo'w power without 1

1

- 4 I

~

.) l ( ,

~

an onsite electric power system. The NRC's Chief l Administrative' Law Judge created a new Licensing Board on, -

March 30, 1984, to hear and decide LIIco's request. After oral argument, th'a Lic,ansing Board established on April 6,

, .- . ~

' ~

1984, an expedited N oce'd{1ral schedu5e for the' low power

license hearings. The schedule provided for discovery from April 6 to April 16, 1984; issuance of an evaluation of the proposal by NRC staff'on April 19, 1984; filing of plaintiffs' testimony on April 20, 1984; and the hearing on April 24, 1984. Further, the Licensing Board mandated that the hearing be concluded by May 5, 1984. In response to plaintiffs'. request for reconsideration of its expedited

! hearing schedule, the Licensing Board, on April 20, 1984, refused to alter or vacate its order. Plain, tiffs then appealed to the Commission to overturn the expedited

'l l schedule, but the Commission, on April 23, 1984, refused to alter the scheduling order. On the same day, plaintiffs l

filed this action, and the Court hated argument from all l parties on plaintiffs' applicativa for temporary relief.

1 '

Plaintiffs maintain that the Licensing Board and the

commission have violated procedural due process by establishing an expedited schedule under which.it is .

impossible for plaintiffa to prepare their case.

I Specifically, plaintiffs assert that seventeen days is insufficient time in which to complete discovery, retain l

! experts, and prepara expert testimony with respect to a 1

r a

i ( . .

proposal that has neither been suggested by a license I applicant nor evaluated in a licensing proceeding in the ' .

' history of' civilian nuclear power generation. Further, plaintiffs argue t' hat the expedited hearing would not have -

j ,.u-- - -- 3 .. . . . ' *-

been scheduled but for'imIproper actions'of the Chairman of '

I the Commission and the financial condition of LILCo. ,

j

! Defendants assert that the Court does not have.

jurisdiction to issue temporary equitable ' relief in this case because the agency action is not final and plaintiffs' objections can be reviewed following the decision of the I Licensing Board. In the alternative, defendants maintain that if a court has jurisdiction, this action would properly be before the Court of Appeals pursuant to 42 U.S.C.

1 S 2239(a) (1976). In addition, defendants assert that the ,

schedule does not deprive plaintiffs pf due process, and .

irreparable harm would not result from a denial of the

! requested relief. -

It is well established that " judicial intervention in uncompleted administrative proceedings, as distinguished from judicial checking by statutorily-established method of review, must remain very much the exception rather than the rule." Nader v. Volpe, 466 F.2d 261,,268 (D.C. Cir. 1972). .

See Gulf Oil Corp, v. U.S. Department of Enercy, 663 F.2d 296, 312 (D.C. Cir.1981); . Association of National Advertisers, Inc. v. Federal Trade Commission, 617 F.2d 611, 621-22 (D.C. Cir. 1979). The narrow exception to that rule

~ .

3 ,

. t 1 l .

j .- is that "a party may bypass established avenues for review within the agency only where the issue in question cannot be ,

f raised from a later order of the agency, . . . or where the i'

agency has very clearly vio. lated an'important constitutional

( or statutory righ.t.,".. ' Sterling' Drug Inc. v. Federa-1 Trede i .

- e .

Commission, 450 F.2d 698, 710 (D.C. Cir. 1971) (citations

~

omitted). See Fitzgerald v. Hampton, 467 F.2d 755, 768 (D.C.

I Cir. 197%); Amos Treat & Co. v. . Securities and' Exchange Commission, 306 F.2d 260, 267 (D.C. Cir. 1962). Contrary to -

defendants' principal argument that Federal Trade Commission i

1

v. Standard 011 Co., 449 U.S. 232 (1080), deprives this Court of jurisdiction, that case does not preclude a finding of l jurisdiction if a constitutional right has been violated. In i

! contrast to the instant case, plaintiff in Standard Oil did not allege any constitutional violations but only statutory i

j violations. 449 U.S. at 235. Standard 011 can also be I distinguished from this case on the same grounds that it was j distinguished in Gulf oil, 663 F.2d at 311. As in Gulf 011, plaintiffs herein do not seek nn order requiring withdrawal of LILOD's prohosal or challenging the necessity of a hearing i

! on the proposal, but they seek judicial assistance "in

! g'etting the proceeding tried fairly." Id.

1 To come within the purview of Amos Treat, plaintiffs l .

i must demonstrate something more than a mere procedural -

i i irregularity, subject to review upon the whole record at the l conclusion of.the proceeding; the asserted infirmity must be i

l 4 l . . - . - - - , . ,, , . - - , . - - - - - - , - - , . - . - . - . - . , . . . - - . , ..

- . . , . . . , . .i -,--.. .~ -.

^-

?:=;

. -nk .

, . '? . .

fundamental. 306 F.2d at 265; Fitzgerald, 467 F.2d at 769. l Although the exact boundaries of due process are fluid and --

defy a. bright-lin,e test, procedural due process at the very l least requires that quasi-judi.cial proceedings provide a fair 7 ~ -!; .

hearing. Amos Treat,-30,6 F.2d at-263.

~

Witti respect tb ," '

agency adjudiciations, due' process co'uld bq said to mandate .

" fair play." Id. at 264.

! 3; . . The expedited hearing schedule threatens to make plaintiffs' participation in the administrative proceeding j meaningless because of the lack of time for effective preparation.. Plaintiffs have presented serious allegations of constitutional violations and have sufficiently l

demonstrated that their allegations may support the Court's jurisdiction under the Amos Treat exception. It appears that the discovery period permitted by the Board has precluded

plaintiffs from preparing for the hearing on LILCO's unique 2

and technically complex issue. When parties to an action are

not permitted to prepare their case, the fundamental fairness j of,the administrative process is, called into question. As did the Court in Amos Treat, the Court in this case finds

. that i '

i [~e]nough has been said. to demonstrate tho' i basis for our conclusion that an -

. administrative hearing of such importance and i vast potential consequences must be attended,

• not only with every element of fairness but i with the very appearance of complete f airness.

Only thus caa the tribunal conducting a quasi-adjudicatory proceeding meet the basic requirements of due process.

5 ,

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

. . . . - - . _ . _ . _ _ . , . - . . _ , . . _ _ . - _ . . . _ . . _ _ , - _ - . . . , , , . . , . , .__..-.,r,.. ,, - . ,

i 306 F.2d at 267. . .

For relief to issue, the Court must determine that j

plaintiffs have satisfied the four-fold test for injun'etive f . . ..

i relief articulated in Virginia Petroleum Jobbers Association 4

} .

v. Federal Power Commission, 259 F.2d 921, 925 (D.C. Cir.

1958), see Washington Metropolitan Area Transit Commission -

v. Holiday Tours , Inc., 559 F.2d 841, 843 (D.C. Cir.1977)

[ hereinafter cited as WMATC). The Court must find either i

i .

j that plaintiffs demonstrated probable success on the merits

or presented a " serious legal, question" and the balance of j the equities favors granting relief. National Association of Farmworkers Organizations v. Marshal, 628 F.2d 604, 616 (D.C.

Cir. 1980) ; WMATC, 559 F.2d at 843-44. The Court in WMATC emphasized that the preventive nature of the requested relief l permitted the court some discretion in finding that plaintiff i

would succeed on the merits:

i

! An order maintaining thg status quo is appropriate when a serious legal question is

{ presented, when little if any harm will befall other interested persons or the public l and when denial of the order would inflict irreparable injury on the movant. There is 1 l substantial equity, and need for judicial i jl . protection, whether or not movant has shown a j

mathematical probability of success.

~

I l 559 F. 2d at 8 44. In this case, plaintiffs have raised ,

serious questions concerning the propriety of the decision to expedite the hearing on LILCO's proposal to such an extent 6 '

~

(

. i-

- that interested parties cannot be faErly heard.- The- -

-- underlying reasoning of the Licensing Board has been

]

, 1

.. sufficiently called into question by plaintiffs to sustain

, temporary relief'if warranted by the other criteria.

~ '

5?$ - - As'previously'. discussed', meaningdul par'ticipation in ~~,C'

- ~

\ . ,

the administrative proceeding by plaintiffs has been '

] precluded by the limited discovery period. From the evidence

'5E! -

available at this early stage of' the' case, it' appears that i

]

the procedural due process rights of plaintiffs have been compromised by the expedited schedule. If so, such a denial i

of due process constitutes irreparable harm. Amos Treat, 306 F.2d at 267; Heublein, Inc. v. Federal Trade Commission, 53'9 F. Supp. 123, 123 (D. Conn. 1982). Granting relief in this l case will not harn defendants or any other 1nterested party.

No party to this action alleged that any harm would result from staying the coumencement of the hearing pending a hearing on the motion of plaintiffs for preliminary injunction.

The publi,c interest is furthered by a careful and full adjudication of LILOO's proposal for a low power license; no benefit can result from an unfair hearing on this proposal.

! With theipotential consequences of the administrative decision being so great, the public will be served if l '

defendants are permitted to adequately prepare their positions concerning LILCOs proposal.. Further, the public )

l

)

4 j 7 ,

. o- .- .

a. .

interest will benefit'if the administrative proceeding is l conducted fairiy. ~ '

. l Since plaintiffs have raised a su'ostantial legal question regarding the, propriety of the hearing schedu).e,

.e.  ;. , . , . . . . - ,. . ,- - -

and have demonstrated irreparable ' injury, and,since the x _._ balance of the equities favors preserving the status quo pending a determination on the preliminary injunction, the Court will grant the motion of plaintiffs for.a temporary restraining order.

An Order consistent with this Memorandum Cpinion will issue.

• xuJ & &

i NORMA TOLLOWA OHNSON

' UNITED STATES TRICT JUDGE DATED: April 25, 1984 e

l 1

l

)

8 .

4 I l

s -

r

_. -(

UNITED STATES DISTRICT COURT )

FOR THE DISTRICT OF COLUMBIA FILED -

j MARIO M. CUOMO, Governor of : l the State of New York,

- ' - ' APR 251984 et al., -

e3 - - - '

JAMES F. DAVEY, Clerk -

i Plaintiffs, t ,

~

i v.  : Civil Action.No. 84-1264 UNITED STATES NUCLEAR , t ,

REGULATORY COMMISSION,-

et al.,  :

Defendants.  :

ORDER Upon consideration of the Application of plaintiffs for a temporary restraining order, and upon consi'deration of all i

matters in support and opposition thereto, including oral argument before the Court, it is this 8 4 ' day of April, 1984,,

ORDERED that defendant the United States Nuclear Regulatory Commission and defendants Nunzio J. Palladino, l Marshall E. Miller , Glenn O. Davis, and Elizabeth B. Johnson be, and they hereby are, jointly and severally restrained and enjoined from further convening, participating in, proceeding with, or authorizing any hearings before the Atomic Safety .

1 and Licensing Board pertainI.ng to the supplemental motion of Long Island Lighting Company for a Low Power Operating g

t

, - - , - - . - - , , . - - - . v., . en.,--,-----e-,,-w---p -,e--++ ,m-a- -.,- ,,,--gnn--m- ,~,,e- --

-r ,-,-,,.,-,,r---g+-

s ....-- . .. . -

g _ ( .-v x,._ v .

~

License in the proceeding styled In the Matt.er of Long ' Island -

~

- Lighting Company, Docket No. 50-322-)L-4 (Low Power),_ , or -

otherwise for a pe'riod of ten (10) d'ays from the date of this ,

1 Order or pending the hearing on the motion of plaintiff for a - l

,c. preliminary injunction; whichever first. -

L,-,

occurs._,~,. q.

+.: - .9 . , - _.- _

Entered this o7/ 4 day of April, 1984, at /4.'84 4. w . ,

g mOe g

i h:gs W HOLLOWgiffJOHNSON f NORMA UNITED STATES ITISTRICT JUDGE I

i t

J l

l O

\

t t

2 .

l

__ .m .. _. .- - , . . , . , . - . . _ _ .. , . _ _ , , . ._, - , _ . . . , . . .