ML20206M833

Order.* Denies Intervenors Request for Disqualification of Judges Gleason & Kline in OL-6 Proceeding on Basis That No NRC Authority Supports Intervenors Views for Disqualification.Served on 881121

ML20206M833
Person / Time
Site:	Shoreham File:Long Island Lighting Company icon.png
Issue date:	11/21/1988
From:	Gleason J, Kline J Atomic Safety and Licensing Board Panel
To:	NEW YORK, STATE OF, SOUTHAMPTON, NY, SUFFOLK COUNTY, NY
References
CON-#488-7546 LBP-88-24, OL-3, OL-6, NUDOCS 8812020024
Download: ML20206M833 (10)

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4 COCKE*EO UN!1ED STATES OF AMERICA 'N NUCLEAR REGULATORY COMISSION ATOMIC SAFCTY AND LICENSING P0t.RD TS N7/ 21 P3 :48 I Before Administrativa Judges: f i James P. Gleason, Chairman Dr. Jerry R. Kline  ;

Mr. Frederick J. Shon  ;

29,VED i10V 2 l 15M t In the Matter of Docket No. 50-322-OL-3 (Emergency Planning)  :

LONG ISLAND LIGHTING COMPANY  ;

} (Shoreham Nuclear Power Station, i Unit 1) November 21, 1988 .

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r I. INTRODUCTION f

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3 Interveners filed a rnotion with the Licensir.g Board requesting that

Administrative Judges Gleason and Kline ha disqualified from presiding over

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{ proceedings relating to LILCO's R6 quest for ! mediate Authori:ation to t i ,

j Operate at 25T Power. Intervenors submitted the Affidavit of Karic J.

.I J Letsche in support of their retion. The affidavit stated the bases for the

! motion are staterrents in LBP-84-22 (sic 88 24) made by Judges Gleason are I Kline which statements are referenced ir. Section !! to the Sovernments i

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respense to LILCO's request for Imediate Authorization to Operate at 25% i 1 i

' power.

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) The "Goverrwents Response to LILCO's Request for Imediate Authorization t

to Operate At 25% Power" was dated October 31, 1988 and received by the Board I l,

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I 8812O20024 881121 a

PDR ADOCK 05000322 Q PDR ,

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at the same tirre as the reouest for disqualification. Among the reasons l I' given for denying L!LCO's motion, Intervenors allege that "two members of the i J

4 Board are disqualified from ac+ h,9 on the request." Section !! of the Governments' response alleges that Judoes Gleason and Kline have shown bias l t

against the Gov'rnments and cannot act fairly and impartially in *his matter.

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In support of this view, Governments allege that LBP-88-P,4 is replete with  !

invective directed toward the Governments. Seven stateme.its drawn from  ;

LBP-88 24 are set forth verbatim as evidence of our bias and impartiality. l l

Intervenors state that, given our previous ruling that Intervenors should be  !

t dismissed from the Shoreham proceeding, we cannot now fairly or objectively l resolve the issue of their cont).'ued participation in the OL-6 proceeding.

In support thereof, Intervenors cita an Appeal Poard ruling stating that "a party has a right to be judged indepeniently and Fairly by each board before which it appears." ALAB-902 at 11.

Intervenors cite five cases frou the Federal courts as bases for the propositions that parties are entitled to a fair hearit g before an impartial tribunal and that a judge rust disqualify himself in any proceeding in which his impartiality might reasonably be questiened- (Governments response at 5.) Notably absent from Governments' response was any reference to NRC case law that establishes precedent for how the general principles governing disqualifica*,icn of judges have been applied in NRC adjudicatory proceedings.

LILCO responded in opposition to Intervenors' motion on November 12, 1983. The Staff responded in opposition on November 21, 1988. Applicant and Staff thoroughly reviewed the legal standards governing disqualification of judges.

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!!. LEGAL STANDAPDS FOR DISQUALIFICATION OF LICENSING BOAR 0 JUDGES We rote at the outset that the OL-3 board, in LBP-88-24, dismissed Intervenors from the Shoreham case. That decision was partly reversed on jurisdictional crouncs as it applied to the pending OL-5 proceeding which is before a board corposed of different decision makers than the ones herein.

1 ALAB 902, p.4 The OL-6 portion of the case, however, pends before the same decision makers that rendered the decision in LBP-83-24 There has been no jurisdictiorial questicn re mad, and the Appeal Board has not reversed our decision, as it applied to the OL-6 part of the case. LBP-88-24 is currently buding on the parties exctpt fcr the parts that have been reverced. We individually conclude that, es a result of our decision in LBP-88-24, l l

Intervanors have no current standing to file a rnotion for disoualification i before the decision inakers who rendered that decision. However, any motion to disqualify a judge is a serious natter not to be taken lightly. The existence of the rotion itself may cast a cloud on the integrity of NRC proceedings if pemitted to stand unanswered. We jointly cenclude, therefore, that we will not rest on our procedural prerogative to dismiss suvnarily Intervenorc' request as we are entitled to do in these circumstances. We address the motion en the trerits instead as a matter of our discretion.

Judges requested to disqualify themselves from participation in NRC proceedings cust decide the ratter as individuals and not as a full Board.

ALAB-748, 18 NRC 1184 (1983). In the case before us Intervenors' rction does not distirguish between alleged bias shown by Judges Kline or Gleason.

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Discualification is sought for essentially identical reasons, and the bases alleged are equally applicable to both. We therefore choose to prepare this l

single statement solely as a matter of convenience. This staternent presents findings and opinions which we each adopt fully and individually and it is l not to be construed as the ruling of a quorum of the OL-3 Boarc.

The standards applicable to requests for disqualification of NRC judges have been discussed repeatedly by the Appeal Buard and the Cemission.

Together the c!uster of NRC cases on this subject present a clear and unambiguous basis for deciding such rotions. An acministrative trier r)f fact is subject to disqualification if he or she has a direct, personal, substantial pecuniary interest in a result; if he or she has has a personal bias against 4 participant; if he or she has served in a prosecutive or investigative role with regard to the same facts as are at issue; if he or she has prejudged factual -- as distinguished from legal or relicy -- issues; or if he or she bas engaged in ccnduct which gives the appearance of personal bias or prejudgment of factual issues. ALAB-777 TO NRC 21 (1984). A judge seculd disqualify himself in any proceeding in which his impartiality may reatonably be questioned. Disqualification should follow if reasonable man, cognizant of c.ll the circunstances, would harbor doubts about the judges impartiality. CL1-04-20, 20 NRC 1061, 1078, n.46 (1984). An administrative trier of fact is subject to disqualification for the appearance of bias or prejudgment of the factuel issues as well as for actual t 'as or prejudgment.

ALAB-f72, 15 NRC 677 (1982).

I In the Federal Ccurts, disqualifying bias or prejudice of a trial judge rust generally be extrajudicial. As the Supreme Court has held, "the alleged

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E bias and prejudice to be disqualifying must stem from an extrajudicial source and result in an opinion on the nerits on soce basis other than what the judge has learned from his participation in the case." United States v.

Grinnell Corp., 383 U.S. 563, 583 (1966). See also In Re Internatienal Business Machines Corporation, 618 F. 2d. 923, 927 (2d Cir. 1980) ("IEM"). j l

The same standard applies to presiding officers in acministrative proceedings. Duffielo v. Charleston Area Medical Center Inc., 503 F.2d 512 (4th Cir. 1974). Indeed the Ccernission has expressly edopted this rule, holding that "Preliminary assessments, made on the record during the course of an adjudicatory proceeding, based solely upon application of the decision makers judgement to material properly before hin in the proceeding" do not compel disoualification as a natter H law. (Citationsomitted.) CLI-82-9, 15 NRC 1363, 1365 (1982). Other NR!: cases dealing with rrotions to disqualify an NRC judge hold unambigucusly that to be disoualifying, bias rust stem fror an extrajuoicial scurce. It ermt te based on something other than what the adjudicater has learntd from participating in the case. ALAR-819, 22 NPC 681 (1985), ALAB 748, 18 NPC 1184 (1983). Fetters cannot ty; deered extrajudicial even if they are unnecessary, inappropriate, erroneous, superflucus, or irprovident. ALAB-749, 18 NRC 1195 (1903).

Disqualification of an acministrativa judge may also be recuired if juoicial conduct demon trates a pervasive bias or prejudice. CLI-32-9, 15 NFC 1363 (1982), However, disqualifying bias or prejudice cannot be shown by unfavorable rulings, use of strong language, or by the expression of the judge's views on pending ratters. Inadvertent and possibly inaccurate statecents by the adjudicator do not establirh bias. ALAB-819, 22 NRC 681

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l i i (1985). The fact that a judge's actions may be controversial or my .irovoke j l

l strong reactions by the parties oces not provide crounds for I

disqualificution. CLI-85-5, 21 NRC E66 (1985). The fact chat a judge may 1

have a crystallized point of view on questions of law or policy is not a j basis for his or her disqualification. ALAB-777, 20 NRC 21 (1984). Even the f

appearance of bias connot be shown by adverse rulings on the merits. Id.,

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! DECISION  !

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Intervenors did not allege that any actions er writings of Judge Kline i i

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extrajudicial source. This criterion for disqualii'ication is not relied on ,

t in Intervenors' motion. Judges Gleason and Kline each individually affirm  !

I that all findings of fact and opinions and inferences drawn therefrom in j LBP-88-24 were based upon the judiciel record before us ard that no  !

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extrajudicial inforration was relied upon in that decision. I f

Interveners do not allege that Judges Gleason and Kline exhibited  !

I pervasive bias or prejudice in LBP-88-24. Indeed it would have been fruitless to do so based on seven statements draen from an initial decision, because it is settled that adverse rulings by an administrative board do not show pervasive bias. While Intervenors might object to our choice of language in those statements, it is equally well settled that disqualifying bias or prejudice cannot be shown by a judge's use of strong language. If we understand Intervenors concern correctly it appears to be that since the board r.ajority dismissed them from the proceeding in LBP-88-24, we are too

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7 biased to fairly consioer anything they have to say in their cpposition to Applicants request for immediate authorization for 25*, pcwer. However the  :

law is clear that bias or prejudice cannot be shown where a jadge holds crystallized views on matters of law or policy. Our statements, cited by intervenors, accurately reflect our deliberative view that Intervenors were j properly dismissed frcm the ."  ; ham case, however, that view is based on a I judicial record ano it is not a basis for disqu'.11'ication egen if erroneous, ,

1 supertiuous er improvident.

As we note earlier, Intervenors have not citec any NRC authority tha t l supports their view that we should be disoualified. Our review reveals that there is no basis for our disqualificatiun as a matter of law (supra'i.

However we consider separately whether se should disqualify ourselves as (

! a matter of discretion although Intervenors have not requested us to do 50.

Such disevalificction could be required if there is even the appearance of i

! bias or prejudement of facts resulting from our judicial conduct or writings.  ;

! The test is whether a ditinterested reasonable observer might conclude that [

we have in sore neasure adjudged the facts as well as the law in advance of f I l hearing it. bowever, there are no factual issues before us for decision. F i ,

The enly natter:, pending before us are LILCO's recuest and Intervenors' l

) response in which Interveners seek the opportunity as a F.atter of law to j litigate LILCO's request for authorization to operate at 25% power. While a reasonable eerson, similerly situated, might well prefer to have his request decided by soccone other than the judges who had previously irposed a i sanction against him, the test is whether a disinterested person knowing all l l

the circumstantes would ques. tion the judge's impartiality. We cannot  ;

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, conclude that a reasonable person knowing all the circumstances surrounding i l our issuance of a sanction in this case could harbor doubts about our [

impartiality even if he disagreed with our decision. The racerd of this l l

proceeding establistas that our action was based on reasor, even if it is j later adjudged to be erroneous. We believe that discretionary l

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disqualification of ourselves in this instance would be objectively harmful l to the integrity of NRC's proceedings and the public confiderce in them because it would give the appearance that Intervenors' assertions against us  !

were in some sense meritorious and it would tend to undennina jucge's freedom [;

to make the independent analyses required for decision making.

For all of the foregoing reasons we conclude that we should not disqualify cutselves from considering matters in the Ct.-6 portion of the j t

Shoreham case and that Intervenors request for our disqualification should be cenied.

Two matters related to this motion require additional corsnent. We find it unacceptarle for Intervenors to have filed such a reouest with us without having cited a single NRC authority that could have a direct bearing on the dispcsition of the reqrJst. Eve.) a cursory review of that ruthority would have revealed, prior to filing, that such a request was frivolous since we found that there is not a single NRC case supporting disqualification of  ;

judges in the circumstances complained of by Intervenors. l t

We also find the timing of this motion unacceptable because of its j possible impact on the integrity of NRC proceedings. It is settled that notions for disqualification avst be filed in a timely fashion, i.e., once

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the information giving rise to such a claim is avai'able to the movant. f I

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9 ALAB-749, 18 NRC 1195 (1983). Any delay in filing casts a cloud over the proceeding and increases the likelihood of delay. M. Insistence on timeliness is not merely a procedural technicality but a natter of preserving l the integrity of the adjudicatory process because litigants should not be l permitted to use disoualification motions to manipulate the outcome of the judicial or administrative process. CLI-84-20, 20 NRC 1061 (1984).  :

Tne latter reason for insistence on tiewly fillings is what concerns us tere. Intervenors were in possession of LBP-88-24, which fonns the basis for their claim, since Septernber 23, 1988 but their request was filed October 31. ,

l 1988 as part of a response to a motion by LILCO for authori:ation to operate i ct 25% power. Intervenors' oppcsition to LILCO's motien was premised in part on disqualification of Judges Gleason and Kline. Thus the disqualification request and its timing are reasonably interpretable as being simply another l

i strategy of litigation that could have the effect of preventing or (*leying a l

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decision on LILCO's notion. A genuine concern for judicial bias nert s a prompt filing; a party may not attempt to manipulate the adjudicatory process hy >>aiting until there is risk of an aaverse decision before making a charge of bias. It is imaterial that there was nothing pending before us for several W eks after LBP-88 24 was issued or that the total elapsed time taken by Intervenors does not, at first blush, seem egregious. If a genuine concern for judicial bias existed the motion should have been filed as soon as a basis was perceived to exist. Waiting until there was a risk of adverse ruling before filing a serious charge, particularly where as here the clain was poorly supported and therefore frivolous, was more an attempt to delay or

10 l prevent our cecision on LILCO's trotion than a genuine effort to discualify biased judges.

Intervenors request fcr the disqualification of Judges Gleason and Kline in the OL-6 proceeding is individually deniad by each of us, in accordance with 10 C.F.R. 2.704(c) this decision is referred to the Appeal Board, h

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imes P. Gleason, Chainnan

/'AD'41NISTRATIVE JUCGE ,

i n n,s > > ,s .Kuf Er. Jerry E. Aline t)CMINISTRAt!VE JUDGE Dated at Bethesda, Maryland this 21st day of Noverber, 1980 i

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