ML20234D009
| ML20234D009 | |
| Person / Time | |
|---|---|
| Site: | Three Mile Island  |
| Issue date: | 06/30/1987 |
| From: | Bauser D GENERAL PUBLIC UTILITIES CORP., SHAW, PITTMAN, POTTS & TROWBRIDGE |
| To: | NRC ATOMIC SAFETY & LICENSING APPEAL PANEL (ASLAP) |
| References | |
| CON-#387-3938 CH, NUDOCS 8707070064 | |
| Download: ML20234D009 (60) | |
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, '87 JUL --2 P3 :3a UNITED STATES'OF AMERICA Grna e .
NUCLEAR REGULATORY COMMISSIOd'OCHE fij
, Xi BEFORE THE ATOMIC SAFETY AND' LICENSING APPEAL BOARD In.the Matter of ')
)
General Public Utilitics Nuclear- ) Docket No. 50-289 (CH)
)
(Three Mile' Island Nuclect ) Station, Unit No. 1) ) GPUN'S BRIEF IN SUPPORT OF MR. CHARLES HUSTED'S APPEAL Deborah B. Bauser SHAW, PITTMAN, POTTS & TROWBRIDGE Counsel for GPU Nuclear Corporation Dated:- June 30, 1987 8707070064 870630 PDR ADOCK 05000289 hh
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t UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION
'jEFORE THE ATQMIC SAFETY AND LICENSING APPEAL BOARD i
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Matter of )
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General Public Util'. ties Nuclear ) Docket No. 50-289 (CH)
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'(Three Mile Island Nuclear'< )
Stat'icn, Unit No. 1) )
' i GFU!I'F BRIEFIN SUPPORT OF MR. CHARLES HUSTED'S APPEAL Deborah B. Bauser SHAW, PITTMAN, POTTS & TROWBRIDGE e Counsel for GPU Nuclear Corporation t
Dated: June 30, 1987
TABLE OF CONTENTS Pace TABLE OF AUTHORITIES...........................................ii l l 1 I. INTRODUCTION.............................................. 1 A. History of the case.................................. 2 B. The ALJ's Decision................................... 7 II. ARGUMENT.................................................. 8 THE ALJ'S DISQUALIFICATION OF HUSTED WAS BASED ON AN ERRONEOUS STANDARD . . . . . . . . . . . . . . . . . . . . . . . 10 A. The ALJ's Standard.................................. 10 B. The Applicable Standard............................. 12
- 1. NRC rules and guidance......................... 13
- 2. Constitutional considerations.................. 24
- a. Deprivation of liberty and property rights: the requirement of due process of lav.....<................ 24
- b. The First Amendment guarantee of free expression........................ 32
- 3. Public policy considerations................... 37 C. Application of the Appropriate Standard to Husted's Conduct................................. 41 s A. Husted's performance as an operator, I
a supervisor, and an instructor................ 42 B. Husted's performance as a witness.............. 43
. III. CONCLUSION............................................... 48
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TABLE OF AUTHORITIES Pace 4 Cases: Barnum v. National Transportation Safety Board, 595 F.2d 869 (D.C. Cir. 1979)................................ 32 Barsky v. Board of Recents, 347 U.S. 442, 74 S. Ct. 650 (1954)............................................... 31 Bell v. Burson, 402 U.S. 535, 91 S. Ct. 1586 (1971)........ 25,28 Berdin v. Duccan, 701 F.2d 909 (11th Cir. 1983), cert. de_nied, 464 U.S. 893, 104 S. Ct. 239 (1983).............. 35 Bioby v. City of Chicaco, 766 F.2d 1053 (7th Cir. 1985), cert, denied, U.S. , 106 S. Ct. 793 (1986), citino Madison, Essay on Property, in 6 Madison, Writings 101 (Hunt ed. 1906 [1792])........ 25,26 Board of Recents v. Roth, 408 U.S. 564, 92 S. Ct. 2701 (1972)........................................... 25,27 Branti v. Finkel, 445 U.S. 507, 100 S. Ct. 1287 (1980)........ 35 Cafeteria and Restaurant Workers Union, Local 473 v. McElroy, 367 U.S. 886, 81 S. Ct. 1743 (1961)............. 25 Central Hudson Gas & Elec. Corp. v. Public Service Commission of New York, 447 U.S. 557, 100 S. Ct. 2343 (1980).............................................. 35 Cleveland Bd. of Educ. v. Loudermill, 470 U.S. 532, 105 S. Ct. 1487 (1985).................................... 26,27 Duke Power Co. (William B. McGuire Nuclear Station, Units 1 and 2), ALAB-143, 6 A.E.C. 623 (1973)...................................... 20
. Flemino v. U.S. Department of Acriculture, 713 F.2d 179 (6th Cir. 1983)................................... 29,30 General Public Utilities Nuclear (Three Mile Island Nuclear Station, Unit No. 1), ALJ-87-3 (Apr. 2, 1987)........................................ passim
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Pace Goss v. Lopez, 419 U.S. 565, 95 S. Ct. 729 (1975).......... 28,29 Graves v. Minnesota, 272 U.S. 425, 47 S. Ct. 122 ' (1926)............................................. 31,48,49 ' Greene v. McElroy, 360 U.S. 474, 79 S. Ct. 1400 (1959).......................................... 24,25,28,30 ; Hampton v. Mov Sun Wono, 426 U.S. 88, 96 S. Ct. 1695 (1976)........................................... 26,27 Herz v. Deonan, 648 F.2d 201 (3d Cir. 1981)................... 25 Houston Lichtino and Power Co. (South Texas Project, Units 1 and 2) LBP-84-13, 19 N.R.C. 659 (1984), aff'd, ALAB-799, 21 N.R.C. 360 (1985)........................ passim LBP-85-6, 21 N.R.C. 447 (1985)........................... 20 LBP-86-15, 23 N.R.C. 595 (1986), aff'd, ALAB-849, 24 N.R.C. 523 (1986)........................ passim l Landmark Communications, Inc. V. vircinia, 435 U.S. 829, 98 S. Ct. 1535 (1978)............................... 34 Metropolitan Edison Company (Three Mile Island Nuclear Station, Unit 1) LBP-82-348, 15 N.R.C. 918 (1982).................. 2,3,10,11 LBP-82-56, 16 N.R.C. 281 (1982)...................... 2,4,17 ALAB-772, 19 N.R.C. 1193 (1984)................ 4,5,18,19,40 CLI-84-18, 20 N.R.C. 808 (1984)........................... 5 CLI-85-2, 21 N.R.C. 282 (1985)............................ 5 CLI-85-9, 21 N.R.C. 1118 (1985).............. 17,18,19,23,32 Paul v. Davis, 424 U.S. 693, 96 S. Ct. 1155 (1976)............ 27 Rankin v. McPherson, 55 U.S.L.W. 5019 (U.S. June 24, 1987)............................... 34,35,36 Rehbock v. Dixon, 458 F. Supp. 1056 (N.D. Ill. 1978), reh'a denied, 425 U.S. 985, 96 S. Ct. 2194 (1976)........ 31
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Pa:Je Richards v. Emanuel County Hospital Authority, 603 F. Supp. 81 (S.D. Ga. 1984).......................... 25 Richmond Newspapers, Inc. v. Virginia, 448 U.S. 555, 100 S. Ct. 2814 (1980)................................... 34 Robb v. City of Philadelphia, 733 F.2d 286 (3d Cir. 1984)........................................... 26 Schware v. Board of Bar Examiners, 353 U.S. 232, 77 S. Ct. 752 (1957).................................. 30,31 Smith v. Arkansas State Highway Emp., Local 1315, 441 U.S. 463, 99 S. Ct. 1826 (1979)...................... 34 Tennessee Valley Authority (Browns Ferry Nuclear Plant, Units 1, 2 and 3), ALAB-677, 15 N.R.C. 1387 (1982)....... 20 Truax v. Raich, 239 U.S. 33, 36 S. Ct. 7 (1915)............... 26 Tvorett v. Washington, 543 F.2d 840 (D.C. Cir. 1974) after remand, 627 F.2d 1279 (D.C. Cir. 1980)............. 35 U.S. Postal Service v. Council of Greenburch Civic Associations, 453 U.S. 114, 101 S. Ct. 2676 (1981).............................................. 34 United States v. Robel, 389 U.S. 258, 88 S. Ct. 419 (1967)............................................... 24 Waters v. Chaffin, 684 F.2d 833 (11th Cir. 1982)........... 35,36 Webster v. Redmond, 599 F.2d 793 (7th Cir, 1979), cert. denied, 444 U.S. 1039, 100 S. Ct. 712 (1980)................................................... 26 Regulations: 10 C.F.R. Part 2, Appendix C.................................. 14
. 10 C.F.R. Part 2, App. C, S V.A.............................. 15 10 C.F.R. Part 55............................................. 14 10 C.F.R. S 55.1.............................................. 14 1
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l Pace 10 C.F.R. S 55.40............................................. 14 ; i Statutes: l i Atomic Energy Act of 1954 42 U.S.C. 5 2011......................................... 13 42 U.S.C. S 2137......................................... 13 42 U.S.C. 5 2201(b)...................................... 13 42 U.S.C. 5 2232a........................................ 14 Energy Reorganization Act of 1974 42 U.S.C. 5 5801......................................... 13 Administrative Actions: 45 Fed. Reg. 80,384 (Dec. 4, 1980)............................ 16 50 Fed. Reg. 37,098 (1985)..................................... 6 I 51 Fed.. Reg. 25,411 (July 14, 1986)........................... 16 j Enforcement Guidance Memorandum EGM 86-05 ! (Sept. 29, 1986)........................................ 15,16,23 I SECY 86-47 (Feb. 7, 1986)..................................... 15 ! l Miscellaneous: Kipling, R., The Lesson, in The Five Nations; the ! Writinas in Prose and Verse of Rudyard Kiplina (1903).... 10 Rocet's International Thesaurus (3d ed. 1962) at 689.......... 33 The Random House Dictionary of the Enclish Languace (J. Stein, ed. 1973)..................................... 33
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Webster's Third New International Dictionary (unabrid 141................................ged l ed. 1981) at ......... 33 my.
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. UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION BEFORE THE ATOMIC SAFETY AND LICENSING APPEAL BOARD i In the Matter of )
)
General Public Utilities Nuclear ) Docket No. 50-289 (CH)
)
9 (Three Mile Island Nuclear ) ; Station, Unit No. 1) ) i GPUN'S'BRIEF IN SUPPORT OF MR. CHARLES HUSTED'S APPEAL l I. INTRODUCTION Charles Husted used to work as a licensed senior reactor op-
- erator, a licensed operator instructor, and a training supervisor at Three Mile Island Unit 1 ("TMI-1"). Mr..Husted first quali-fied to serve in an NRC-licensed capacity and to instruct at TMI '
in 1978. Haverkamp, ff. Tr. 648, Att. 2 at 3. In.this proceed-ing, Mr. Husted's technical knowledge and_ capability is not in question. The issue in this case is the sufficiency of Mr. Husted's character. GPU Nuclear Corporation ("GPUN") be-lieves that, based on the evidence presented before Administra-tive Law Judge Margulies ("the ALJ"), Mr. Husted is qualified to
' hold a license, instruct, and supervise other operator instruc-tors. GPUN therefore supports Mr. Husted's appeal of the ALJ's decision below, which reached a contrary conclusion.
A. History of the Case In April, 1981,.the NRC administered reactor operator,("RO") and senior reactor operator ("SRO") exams to TMI-l's operators. Mr. Husted took those e'xams. It was later discovered that two SROs had cheated. In response to this discovery, NRC's Office of Inspection and Enforcement ("OIE") conducted an extensive inves-tigation at TMI, during which many individuals, including Mr. Husted, were interviewed. The OIE investigation led to the issuance of a number of investigative reports, which identified a wide range of rumors about cheating and the possibility of cheating.on NRC and GPUN exams by several individuals other than the two SROs whose cheating had led to the inquiry. See Metropolitan Edison Company _(Three Mile Island Nuclear Station, Unit 1)("TMI-1 Restart"), LBP-82-56, 16 N.R.C. 281, 299, 301-33 (1982); TMI-l Restart, LBP-82-34B, 1b N.R.C. 918, 928-70 (1982). None of the reported rumors or allegations raised any questions about the propriety of Mr. Musted's conduct during any examina-tion. Having already completed that evidentiary phase of the restart proceeding concerning issues of management capability, training, and operations, the Licensing Board reopened the record on September 14, 1981 on matters related to cheating. A Specisl Master was appointed to hear the evidence and issue a recommended decision. TMI-1 Restart, supra, 16 N.R.C. at 287-88. 1 j 4
During the reopened proceeding, Mr. Htsted was deposed by an intervenor, and was called as a witness to testify. Mr. Husted was assisted by GPUN's counsel during his deposition. Mr. Hdsted did not have personal counsel and, due to the severe strictures placed upon GPUN's counsel as a result of a sequestration order, Mr. Husted had virtually no benefit of counsel in preparing for, or during his appearance as a witness before the Special Master. Husted, ff. Tr. 330, at 23; Long, ff. Tr. 755, at 4-5. Only nine days prior to Husted's appearance, an al?.egation had been raised { for the first time by another witness on the stand that during the April, 1981 exams, Mr. Husted had asked a second examinee (Mr. Janes) a question, suggesting that Husted had cheated on the exam. Ward, ff. Tr. 140, Att. 2 at 25,162-63. Mr. Husted was j l confronted by this accusation when he testified. Both he and i f Mr. Janes fervently denied its veracity. General Public { Utilities Nuclear (Three Mile Island Nuclear Station, Unit i No. 1), ALJ-87-3 (Apr. 2, 1987) (" Initial Decision") at 1 11. In his recommended decision, the Special Master concluded that Mr. Husted had cheated. He also concluded that Husted's testimony before him had not been forthright; that Husted had re-fused to cooperate with the OIE inves:igators; and that Husted had displayed an unacceptable attitude towards the hearing. TMI-l Restart, LBP-82-34B, supra, 15 N.R.C. at 957, 1045. Never- ! theless, finding no reliable standard by which to assess this l 1 i f
i, conduct, the Special Master could not conclude or recommend that Mr. Husted be removed from licensed duties at TMI. He considered a lesser sanction to be appropriate, but made no recommendations regarding such a sanction. Id. at 1045-46. The Licensing Board rejected the Special Master's conclusion that Mr. Husted had solicited an answer to an exam question. TMI-l Restart, LBP-82-56, supra, 16 N.R.C. at 315-17. Bqt it did find that Husted had refused to cooperate with the investigators . and that during his testimony, he had given the impression that he did not care whether he was believed. Id. at 318-19. No sanction was imposed on Husted; however, GPUN was required to un-dertake a special review and surveillance of its training program and, it was recommended, it would be appropriate for Mr. Husted's performance to receive particular attention during that review. Id. Over the next several years, Mr. Husted's job performance was subject to intense scrutiny. Initial Decision at 11 125-133. The Licensing Board's decision was appealed by the Common-wealth of Pennsylvania, who opposed restart of THI-1 as long as Mr. Husted continued to serve in a licensed capacity, whether as an operator or as an operator instructor. See TMI-1 Restart, l ALAB-772, 19 N.R.C. 1193, 1222 (1984). In order to satisfy the Commonwealth's concern and moot its opposition to restart, GPUN entered into a stipulation not to use Mr. Husted in the licensed capacities of concern. Id.; Long, ff. Tr. 755 at 6; Tr. 817 i 1 a' (Long). Penr.sylvania subsequently withdrew its appeal. Initial Decision at 4. The Appeal Board did not review the question of whether Husted should be removed from licensed duties, ner did it address the solicitation allegation. TMI-1 Restart, ALAB-772, supra, 19 N.R.C. at 1222-24. The Appeal Board recognized that no evi-dence had been adduced on the question of whether "Husted's bad attitude did, in fact, affect his teaching performance." Id. at 1223. There was consequently no basis for reasonable assurance that it would not. As a result, Husted's apparent failure to co-operate with the OIE investigators led the Appeal Board to forbid GPUN from using Mr. Husted in the nonlicensed operator training supervisory role to which Husted had been assigned after GPUN reached its agreement with the Commonwealth. Id. In its review of ALAB-772, the Commission concluded that while it did not need to resolve the issue of whether Mr. Husted was entitled as a matter of law to a hearing before being subject to the Appeal Board's sanction, "[i]n fairness to Husted," it should afford such an opportunity to him. TMI-1 Restart, CLI-85-2, 21 N.R.C. 282, 317 (1985); see also TMI-1 Restart, CLI-84-18, 20 N.R.C. 808, 811 (1984). Mr. Husted then requested and was granted a hearing, the outcome of which is the subject of + this' appeal. The scope of Mr. Husted's hearing was specified by the Com-mission to include such issues that would allow Mr. Husted the opportunity to demonstrate his fitness for the positions of licensed operator, licensed operator instructor and training i supervisor, and nonlicensed training supervisor. Notice of Hear-ing, 50 Fed. Rea. 37,098 (1985).1/ The parties in the Husted proceeding, with the ALJ's concurrence, agreed that the following seven factual issues properly fell within the scope of the Husted proceeding: (1) Did Husted solicit'an answer to an exam question from (Mr. Janes) during the 1 April 1981 NRC examination? a (2) Did Husted's testimony before the Spe-cial Master lack forthrightness? (3) Did Husted have a poor attitude toward the hearirig on the cheating incidents? (4) Did Husted fail to cooperate with NRC investigators? (5) What does Husted's performance of his responsibilities with GPUN reflect about his attitude and integrity? (6) In light of the answers to (1) through (5), is any remedial action required with respect to Husted? j (7) If remedial action is required, what is it? j 1 .. 1/ The Commission noted in its Notice of Hearing that should Mr. Husted be able to demonstrate his fitness for the positions at issue, he could tnen raise the matter of the agreement con-cerning Husted's serving in a licensed capacity at TMI-1 with GPUN and the Commonwealth. 50 Fed. Rec. 37,098 (1985). ___________A
See Report and Order on Final Prehearing Conference'at 6 (May 27, 1986). The proceeding was to be heard de novo. ALJ Report an'd Order on Initial Prehearing Conference, Feb. 19, 1986, at 7. As a new' proceeding, the prior record was not the record of the Husted proceeding, but was admissible only where permitted by the rules of evidence. ALJ Report and Order on Final Prehearing Con-i ference, May 27, 1986, at 8. B. The ALJ'c Decision The ALJ concluded that Mr. Husted should not be permitted to work as a licensed operator, a licensed operator instructor or training supervisor, or a supervisor of nonlicensed operator training. Initial Decision at 71.2/ The ALJ's holding was not based on a finding that Mr. Husted had cheated -- the ALJ found that Husted had not cheated. Id. at 11 18, 148. The decision also was not based on Mr. Husted's job performance as a licensed operator, a training instructor or a supervisor; for that perfor-mance was found to be exemplary. Id. at 11 114-133, 150. Nei- l ther does the.ALJ's decision appear to be based on a finding that Mr. Husted concealed any information during the OIE investiga-tions. See id. at 11 39, 88, 148. 1 2/ The ALJ recognized that the Husted proceeding was a proceed- l ing in the nature of an enforcement action, and therefore imposed l no evidentiary burden on Husted -- either tofgo forward or to persuade the trier of fact -- concerning the adequacy of his ; qualifications. Initial Decision at 8. 4
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The ALJ disqualified Mr. Husted from pursuing his long-term career path because of attitudinal qualities of concern to the { ALJ. Specifically, the ALJ believed Mr. Husted had failed to co-operate with the OIE investigators, had not been forthright when he previously testified, and had a poor attitude towards the )l prior cheating proceeding. Most significantly, Mr. Husted had l failed to show "that he had rid himself of his poor attitude for the regulatory process." Id. at 11 148-150. His disqualifica-tion by the ALJ was "not done as a sanction," but rather to pro-vide reasonable assurance for the protection of the public health and safety. Id. at 1 151. II. ARGUMENT l There is no doubt that there is a vital health and safety ) significance to the jobs for which Mr. Husted seeks eligibility. i As GPUN stated in its proposed findings before the ALJ in this proceeding, "The positions of control room operator, licensed op-erator instructor, and Supervisor of Nonlicensed Operator Training are positions of significant responsibility that affect the public health and safety." There is no challenge in this case to the safety significance of Mr. Husted's former jobs at TMI. The Husted caso does raise an extremely important subsidiary question -- a question of importance not only to Mr. Husted, but to an industry in which the licensed operator and the instructor
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.are vitalicomponents. The heart of this case is the establish- , ment and: application of an appropriate standard by which to as-sess Mr. Husted's conduct. This requires recognition of the responsibilities as well as the rights of licensee employees, particularly the licensed operator. GPUN submits that'the ALJ misinterpreted the Appeal Board's earlier thoughts on this sub-ject, and consequently articulated an erroneous standard by which to judge Mr. Husted's' conduct. The ALJ's error is further com- l pounded by the obscuring of the qualifications or performance in-dicators to which the standard legitimately applies.
GPUN does not agree with all of the ALJ's findings in_this case. But even if one were to adopt the ALJ's findings, many of which were highly critical of Mr. Husted, the ALJ's indictment is more precisely an indictment of personality and not of character.- GPUN believes that the flaws the ALJ ascribed to Mr. Husted lack a reasonable nexus to the qualifications at issue here. They therefore constitute an insufficient legal basis for depriving an individual of his chosen profession and an industry of a capable performer. l t I _g_
I l l l THE ALJ'S DISQUALIFICATION OF HUSTED WAS BASED ON AN ERRONEOUS STANDARD
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A. The ALJ's Standard l The ALJ articulated an extraordinary standard for r cring Husted from operator training and supervisory responsibilities. The ALJ found that, "The record has established that in Mr. Husted's regular job performance his attitude has been pro-fessional and appropriate to his responsibilities; this attitude extends to safety, the NRC and the regulatory requirements." Initial Decision at 1 150. Nevertheless, the ALJ believed that the existence of the " potential" that "a bad attitude" by an employee towards the NRC's regulatory process -- a somewh6t l ephemeral standard we will pursue in detail later -- might ad-versely affect his job performance constitutes a sufficient basis for job disqualification. Initial Decision at 11 148-149. GPUN submits that the ALJ's standard is unlawfully vague and impermissibly broad. It should be replaced with a more reason-able standard. The " potential" always exists for an individual to perform poorly. If nothing else, the failure to perform within the legal framework, and instead to cheat, by two TMI SROs considered to be
- among the most competent and upstanding indicates this unfortu-nate potentiality in every individual.3/ See TMI-l Restart, 3/ As Kipling said, we have forty million reasons for failure, but not a single excuse. R. Kipling, The Lesson, in The Five Na-ticas; the Writinos in Prose and Verse of Rudyard Kipling (1903).
i LBP-82-34B, supra, 15 N.R.C. at 928. of course, the question is, the likelihood of realization of this potential. The ALJ's stan-dard-ignores this critical element. It therefore fails to dis-tinguish between the universal potential for failure and circum-stances where a rational basis exists fcr finding the likelihood of failure too high for the regulatory process and the public to i tolerate. In short, one cannot discern, from the ALJ's standard, a basis for permitting or denying others to serve in important jobs at TMI or elsewhere. Does the individual who challenges the ca-pability of an NRC employee lack the necessary job qualifica-tions? And what are the " good" attitudes that employees must have in order to qualify? None of these questions are answered-by the ALJ's opinion, which subjects the entire regulatory com-pliance scheme to an obscure and seemingly arbitrary standard. The breadth of the ALJ's standard is similarly flawed. If in fact every individual employed in a nuclear safety-related job were challenged about his or her potential, from time to time, to display an unacceptable attitude about the NRC or the regulatory i process notwithstanding solid on-the-job conduct, one could rea- l sonably anticipate the professional demise of innumerable highly capable and honest individuals who, particularly in stressful l
' 1 situations outside their normal role, have lost their temper, made wisecracks, or otherwise perhaps behaved inappropriately.
Few of us could sustain such a challenge. This breadth in the 1 _ ___ _ _ o
ALJ's standard is not sustainable. Its impact, if uniformly applied, is enormous, and it challenges principles of individual freedom -- to speak freely and to challenge the government'-- that are inherent in our system of government. l It cannot be correct that the NRC regulatory process will not-tolerate individuals who display a wholly unrealized poten-tial for having a bad attitude affect the performance of their duties. This standard, established by the ALJ, is wrong. The question, then, is the basis for, and the articulation and appli-cation of the appropriate standard. B. The Applicable Standard There are three types of considerations which the Appeal Board should take into account in establishing the appropriate standard by which Mr. Husted's conduct should be assessed. Those considerations are (1) NRC rules and guidance on the responsibil-ities and the qualification and disqualification criteria for I licensees, particularly licensed operators, and for other ' licensee employees; (2) constitutional considerations embodied in the legal concepts of due process and free expression; and (3) policy considerations that underlie the NRC's legal and regula-tory framework. A review of these three factors, GPUN believes, will lead the Appeal Board to a standard for disqualification which fully protects the public health and safety without compro-mising fundamental fairness to the individual. f
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- 1. NRC rules and quidance The Atomic Energy Act of 1954, as amended, 42 U.S.C. 5,2011 l et sec. ("the Act"), grants the NRC broad authority in its estab- l lishment of standards by which to judge licensee conduct. The 1
governing principle behind this grant of authority is the Commis- ! sion's responsibility to govern the nuclear industry through standards that protect the public health and safety. Sec-tion 161(b) of the Act, 42 U.S.C. 2201(b); Section 2(a) of the Energy Reorganization Act of 1974, 42 U.S.C. S 5801 et sea. (" ERA"). The Act includes only minimal guidance on the nature of the standards that ought to govern the conduct of licensees. As to 4 operator licensees, the Act requires the Commission to (a) pre-scribe uniform conditions for licensing individuals; (b) deter-mine indivicuals' qualifications; (c) issue licenses to such individuals in the prescribed form; and (d) suspend such licenses for violations of the Act or any rule or regulation issued by the Commission when such action is desirable. Section 107 of the Act, 42 U.S.C. 5 2137. Presumably, then, in order for the ALJ's decision to conform to Section 107, Mr. Husted's conduct, for which his license has been indefinitely suspended, must violate
- the Act or a rule or regulation issued thereunder. :
Section 182a of the Act, which delineates the procedure for applying for an NRC license, specifies that certain qualifica-tions of the applicant will.have to be established, including not
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only the applicant's t.echnical qualifications, but also his . " character." 42 U.S.C. 5 2232a. The characteristics of the applicant that constitute elements of his character are not specified. As to the qualifications of facility licensees and licensee employees, no further guidance can be gleaned from the Act or the ERA than is articulated for operator licensees. The Commission's procedures and criteria for the issuance and removal of licenses to operators is set forth in 10 C.F.R. Part 55. See 10 C.F.R. S 55.1. Part 55 specifies technical requirements that are prerequisite to licensure. No mention is made of the character requirements of the applicant, although it is clear, for example, that an operator's license may be revoked if the operator makes a material false statement which, of course, is an act that may raise questions about an individual's character. 10 C.F.R. S 55.40. Finally, in the area of enforcement, the Commission's stat-utes and regulations grant the NRC broad authority to issue or- i ders, revoke and condition licenses, and impose civil penalties on licensees who violate the Act, or the Commission's rules and orders issued thereunder. See, e.o., Sections 186 (revocation), 161 (orders), and 234 (civil penalties). This authority is then discussed in some detail in the Commission's General Statement of
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Policy and Procedure for NRC Enforcement Actions, 10 C.F.R. Part
. 2, Appendix C. The only comment in the policy statement on en- <
forcement action against individuals states that " Enforcement ~ actions involving individuals, including licensed operators, will . be determined on a case-by-case basis and must be approved by the Director of the responsible Program office." 10 C.F.R. Part 2, App. C, 5 V.A. A footnote to that provision contends that Sec- l tion 234 of the Act gives the Commission the authority to impose civil penalties on employees of licensees when a violation of a requirement directly imposed on them is committed. Id., n.3. In an internal NRC Staff Enforcement Guidance Memorandum, approved by the Commissiot; but not yet incorporated into the NRC's enforcement policy, the policy of the NRC concerning en-forcement action against i,ndividuals is further delineated. See letter from J. Moore, cour;sel for the NRC Staf f, to Appeal Board Chairman Rosenthal and Messrs. Moore and Wilbur, June 17, 1987 and attached Enforcement Guidance Memorandum EGM 86-05 (Sept. 29, 1986) (" Memorandum"); see also SECY-86-47 (Feb. 7, 1986). The Memorandum states that it is the NRC's philosophy that the facility licensee has primary responsibility for safe operation of the facility. However, action will be taken against individ-uals for significant misconduct. The illustration provided of an integrity violation whicn could be expected to prompt enforcement action against an individual is " lying to the NRC." Id. at 2. Other illustrations involve similarly deliberate misconduct, e.g., wilfully defeating safety alarms, falsifying records. The
. Memorandum focuses specifically on those situations where the individual wilfully or recklessly transgressed. Memorandum at l
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2-3 1/ It suggests that sanctions will be taken directly against individuals in only exceptional circumstances. And the Memoran-dum recognizes that there is a range of possible canctions against individuals, from issuance of a letter of reprimand to license revocation. The appropriate application of this range is not specified in the Memorandum, but "should be determined on a case-by-case basis." Id. at 4. In summary, virtually no specification of the standard of performance by which an operator's character qualifications will be adjudged exists in the NRC's implementing statutes or in the regulations of the Commission. The guidance that exists addresses character issues in their most extreme adverse manifes-tations, e.a., wilful deception and wilful disregard of safety. A number of NRC cases involving a facility licensee or applicant do address the nature of NRC's inquiry into a licensee's character. While not precisely the same as the case of an individual licensee, the precedent is extremely useful. 1/ Thus, for example, in the Niacara Mohawk incident referred to by the ALJ, see Initial Decision at 1 140 n.12, a site super-intendent was removed from nuclear activi:ies after he admitted having made a deliberate material false statement to the NRC about the status of important safety features of the plant. 45 Fed. Rec. 80,384-86 (Dec. 4, 1980). The NRC Staff's action in that case plainly met the standard articulated in the guidance
, Memorandum. Deliberate material false statements constitute con-duct that indict an individual's character.
In the Fermi-2 case, also cited by the ALJ, the NRC Staff was requiring that a limit be placed on an individual's profes-sional conduct that directly and narrowly responded to the lack of qualifications that had been exhibited. Detroit Edison Co. (Fermi-2), 51 Fed. Reg. 25,411 (1986); see Initial Decision at 1 140 n.12. i In the TMI-1 restart proceeding, when it was discovered that senior reactor operators had cheated on NRC exams, it was readily recognized that the operators' misconduct constituted a serious indictment of their character. See, e.c., TMI-l Restart, LBP-82-56, suora, 16 N.R.C. at 301-09. But precisely defining the concepts of character and integrity, and applying those con-cepts to obviously less serious misconduct, has been widely rec-ognized in the decisions as difficult, indeed. In CLI-85-9, the decision authorizing the restart of TMI-1, the Commission discussed the concept of facility licensee charac-ter or integrity: The concept of " integrity," or "charac-ter," is a more difficult one to define. See generally, e.o., ALAB-772, suora, 19 NRC at 1206-08; Houston Lichtino and Power Co. (South Texas Project, Units 1 and 2), LBP-84-13, 19 NRC 659 (1984). A generally applicable standard for integrity is whether there is reasonable assurance that the Licensee has sufficient character to operate the plant'in a manner consistent with the public health and safety and applicable NRC requirements. The Commission in making this determination may consider evidence recardina licensee behavior havino a rational connec-tion to the safe operation of a nuclear power plant. This does not mean, however, that every act of licensee is relevant. Actions must have some reasonable relationship to licensee's character, i.e., its candor, truthfulness, willingness to abide by regula-tory requirements, and acceptance of respon-sibility to protect public health and safety. In addition, acts bearing on character gener-ally should not be considered in isolation. The pattern of licensee's relevant behavior, ! including corrective actions, should be con-i sidered. 4 j
I TMI-l Restart, CLI-85-9, 21 N.R.C. 1118, 1136-37 (1985) (footnote l ( omitted; emphasis added). ' Further guidance on the concept of character comes from the Appeal Board in the TMI-l restart proceeding. In ALAB-772, the Appeal Board observed:
" Character" is defined as " reputation esp. when good," and "a composite of good moral qualities typically of moral excellence and firmness blended with resolution, self-discipline, high ethics, force, and judg-ment." Webster's Third New International Dictionary 376 (unabridged ed. 1971). "In-tegrity" is "an uncompromising adherence to a code of moral, artistic, or other values:
utter sincerity, honesty, and candor: avoid-ance of deception, expediency, artificiality, or shallowness of any kind." Id. at 1174. The Oricinal Rocet's Thesaurus SS 929, 933 (1962) includes " character" and " integrity" as synonyms for " probity" and " virtue." TMI-l Restart, ALAB-772, 13 N.R.C. 1193, 1207 n.9 (1984). In the South Texas decision referred to by the Commission in CLI-85-9, the Licensing Board considered the competence and char-acter of the applicant, Houston Lighting and Power Company ("HL&P"). Houston Lichtino and Power Co. (South Texas Project, Units 1 and 2) (" South Texas"), LBP-84-13, 19 N.R.C. 659 (1984), , I aff'd, ALAB-799, 21 N.R.C. 360 (1985), review declined, NRC ltr. I of July 30, 1985. Character and competence were considered by the Licensing Board and the parties to be fundamental require-ments for a license applicant implicit in the Atomic Energy Act. It was apparent that those requirements had not been precisely I { defined by rule or adjudicatory decision and were difficult to
)
l
As in ALAB-772, the Licensing Board define. Id. at 669-70, 673. , turned to the commonly understood definition of character. Id. at 673. As in CLI-85-9, the Licensing Board pointed to the need for a nexus between the qualities included in an evaluation of a licensee's character and the purpose of the licensing process: Obviously, the term is less specific than is
" competence" and calls for a more subjective determination. Character comprises many traits. No trait should be censidered, however, unless it is relevant to the construction or operation of a nuclear plant.*
See Schware v. Board of Bar Examiners of New Mexico, 353 U.S. 232, 239 (1957). Id. at 673-74 (emphasis added; one footnote omitted). The traits particularly recognized by the Licensing Board as elements of character were truthfulness and responsibility. Other identified relevant traits were foresight, judgment, per-ception, resolve, integrity and values. Id. at 674-75. The Board stated, however that these traits are only significant insofar as there "is a nexus of a particular trait to particular performance standards contemplated by the Atomic Energy Act or NEPA and NRC's implementing regulations and guides." Id. at 675-76. Thus, the Board evaluated the licensee's "past and present performance, and consider (ed] those traits, both positive and negative, that are naturally inferred therefrom." Id. at 676. Another decision in the South Texas litigation provides fur-ther insight into the range of misconduct that might or might not constitute a basis for licensee disqual'.fication.
One of the issues in South Texas was the significance of the applicant's failure to provide to the Licensing Board and the parties a document, the so-called Quadrex Report, that was rele-vant and material to matters before the Board. South Texas, LBP-85-6, 21 N.R.C. 447, 461-62 (1985). Under established prin-ciples of disclosure, known as the McGuire doctrine,5/ the appli-cant was obligated to disclose to the Board and the parties the Quadrex Report at the time of its issuance. The Board held, how-ever, that a failure to so disclose would not, per se, reflect a character deficiency. Id. at 462. Rather, the issue was whether "the failure to notify the Board was itself motivated by or reflective of a character deficiency." South Texas, LBP-86-15, 23 N.R.C. 595, 625 (1986) (emphasis added), aff'd, ALAB-849, 24 N.R.C. 523 (1986). The Board stated that the basis for de- , termining whether a disqualifying character deficiency has been demonstrated is whether "the failure to provide information to a licensing board was 'a deliberate breach of an unmistakable duty, a pattern of conduct to that effect, or any indications of bad faith.'" Id. Elaborating further, the Board stated: 5/ The McGuire doctrine obliges applicants to keep NRC adjudi-catory boards informed of newly developing information bearing on pending issues. Duke Power Co. (William B. McGuire Nuclear Sta-tion, Units 1 and 2), ALAB-143, 6 A.E.C. 623, 625-26 (1973). This includes new information that is relevant and material to the matters being adjudicated, modifications and rescissions of j
. important evidentiary submissions, and errors in evidence upon l which the trier of fact might otherwise rely. Tennessee Valley Authority (Browns Ferry Nuclear Plant, Units 1, 2 and 3), l ALAB-677, 15 N.R.C. 1387, 1394 (1982).
i 1 i
-{
I
)
In using these standards, we are interpreting a
" unmistakable" to mean " clearly defined," and
.. " bad faith" as including "a design to mislead or deceive another" -- i.e., not an " honest mistake." Black's Law Dictionary 176 (rev. 4th ed. 1986). In determining whether a j showing of alleged character deficiencies proved to be disqualifying, we would view it in the context of an applicant's overall record in supplying information to the Board, the creasons why specified information was not furnished to the Board, and (assuming a dem-onstration of less-than-full candor in cer-tain instances) the significance of the in-formation and the number of instances of less-than-full candor. In our view, these standards are consistent with the " intention-al lack of truthfulness or candor condoned by management" and the " willful misrepresenta-tions . . . or representations made with dis-regard for their truth," which we cited in [LBP-84-13] as demonstrating a potentially disqualifying lack of character. LSP-84-13, suora, 19 NRC at 678. Id. at 626. Turning to the evidence, the Board found no evidence of any conspiracy to withhold information from it. Id. at 626. It also found that the McGuire doctrine was a clearly defined duty, the general obligations of which were well known to HL&P officials at the time, although certain pertinent details of the doctrine were not well known. Id. at 627. While it found that the appl: cant misconstrued the scope of the hearings, it found no evidence that HL&P witnesses intentionally sought to avoid obligations imposed i
, by the McGuire doctrine, and there was no pattern to that effect.
Id. 1
. i on the other hand, the Board determined that there were sev-
)
eral instances in which the witnesses "provided testimony or i
i l I l 1 answered questions with less-than-desirable candor." Id. Fur-thermore, HL&P's explanation of its motives in so testifying were
" specious at best." Id. at 628; see also id, at 674-76. sut the Board did-not consider "these instences of less-than-full disclo-sure" to represent a pattern of conduct, a conspiracy, a with-holding of information from the NRC as a whole, or a deliberate effort to mislead the Board. Id. at 628.
In South Texas, the applicant's conduct clearly reflected negatively on the applicant, and undercut to some extent the Board's previous findings about HL&P's truthfulness and cancor, responsiveness to Staff inquiries, and willingness to communicate with NRC about project developments. Id. at 629. Nevertheless, (I]n general [HL&P's) handling of the Quadrex Report did not exhibit any intent to misleed a the Board or deprive the NRC of information needed to complete its review of the STP ap-plication. In sum, we hold that the instances of less-
*han-full disclosure identified .
. . . are not significant enough for us to conclude that HL&P lacks character to a degree that would warrant the denial of nperating licenses.
Id. at 629, 677. In summary, the decisions that have grappled with the issue of a licensee's character are fact-specific and complex. How-ever, several principles emerge as hench marks by which to evalu-ate a licensee's character. 4 It is clear that certain egregious actions by a licensee im-pugn his character such that the NRC lacks the requisite reason-able assurance that the public health and safety will be pro-tected if the licensee is allowed to use his (or its) license. These actions can be described as unequivocal acts of dishonesty, such as cheating, as was the case in several instances at TMI-1, or deliberately misleading or deceiving a licensing board, as was investigated but not found in South Texas. This principle ap-pears to be supported by the NRC guidance Memorandum on enforce-ment actions against individuals. The NRC decisions establish two other principles of impor-tance. The commission has stated that evidence regarding a licensee's character must have "a rational connection to the safe operation of a nuclear power plant." TMI-l Restart, CLI-85-9, 21 N.R.C. at 1136-37; see also South Texas, LBP-84-13, 19 N.R.C. at 673-74. Certain misbehavior reflective of character would ap-pear to fail this element of the standard, e.o., bigamy. Other types of misconduct, such as failing to fully disclose income to the IRS, comes closer to meeting the standard; whether the con-duct genuinely reflects on plant safety is much less clear. Unquestionably, there is a broad range of conduct that re-flects less than otter" sincerity, honestly and candor, upon which the NRC, the nuclear industry and, indeed, the average per-son might frown. This conduct might be subject to disapproval and perhaps sanction; but it does not necessarily rise to the l 3 1
level of significance that merits license disqualification. In d the South Texas case, for example, the applicant's failure to be fully forthcoming was undesirable, but did not fundamentally im-pugn or indict HL&P's character. It therefore did not constitute a basis for disqualifying HL&P from obtaining operating licenses. With this guidance in mind, we turn to several other consi-derations which bear on the issue at hand, viz., the applicable standard by which to adjudge Charles Husted's conduct.
- 2. Constitutional Considerations Consideration of the appropriate standard by which to assess Mr. Husted's conduct necessarily includes an appreciation of the constitutional dimensions of this case. The Husted case involves two constitutional principles: the Fifth Amendment right not to be deprived of liberty or property without due process of law; and the First Amendment right of free speech. Without presenting a constitutional treatise on these issues, the following discus-sion summarizes the applicable principles,
- a. Deprivation of liberty and property rights:
the recuirement of due orocess of law The right to follow a chosen trade or profession, particu-larly one which is subject to Federal government licensure, is a
, liberty and property right within the ambit of the Fifth Amend-ment of the United States Constitution. United States v. Robel, 389 U.S. 258, 265 n.ll, 88 S. Ct. 419, 424 n.11 (1967); Greene v.
)
~
McElroy, 360 U.S. 474, 79 S. Ct. 1400 (1959); Cafeteria and
, Restaurant Workers Union, Local 473 v. McElroy, 367 U.S. 886, 894-96, 81 S. Ct. 1743, 1748-49 (1961); Board of Recents v. Roth, I
408 U.S. 564, 92 S. Ct. 2701 (1972). I In order to have a property interest in a job, an individual must have more than an abstract need, desire or unilateral expec-tation of continued employment; rather, he must have a legitimate l claim of entitlement to it. See Board of Recents v. Roth, supra, 408 U.S. at 577, 92 S. Ct. at 2709. But where an individual has met established qualifications for licensure and an effort is made to revoke the license, the individual has a constitutionally protected property interest in the license. See, e.g., Bell v. 1 Burson, 402 U.S. 535, 91 S. Ct. 1586 (1971) (driver's license); Herz v. Decnan, 648 F.2d 201 (3d Cir. 1981) (license to practice psychology). As the court stated in Richards v. Emanuel County Hospital Authority, 603 F. Supp. 81, 85 (S.D. Ga. 1984): License revocations are so serious as to be treated "'in the nature of criminal proceed-ings.'" Wall v. American Optometric Association, Inc., 379 F. Supp. 175, 184 (N.D. Ga.), aff'd, 419 U.S. 888, 95 S. Ct. 166, 42 L. Ed.2d 134 (1974), cuotino, Geiger
- v. Jenkins, 316 F. Supp. 370, 372 (N.D. Ga.
1970), aff'd, 401 U.S. 985, 91 S. Ct. 1236, 28 L. Ed.2d 525 (1971). Since the eighteenth century, the entitlement to practice one's profession also has teen viewed as a principle of liberty.
. See Bioby v. City of Chicano, 766 F.2d 1053, 1057 (7th Cir.
1985), citina Madison, Essay on Property, in 6 Madison, Writings
101 (Hunt ed. 1906 [1792]). As the Supreme Court stated in two cases dealing with employment ineligibility for aliens, "It re-quires no argument to show that the right to work for a living in the common occupations of the community is of the very essence of the personal freedom and opportunity that it was the purpose of the [Fifth] Amendment to secure." Truax v. Raich, 239 U.S. 33, 41, 36 S. Ct. 7, 10 (1915), cited with approval in Hamoton v. Mow Sun Wonc, 426 U.S. 88, 102 n.23, 96 S. Ct. 1895, 1905 n.23 (1976). Suci. a " deprivation of an interest in liberty . . . must be accompanied by due process." Hampton v. Mov Sun Wono, supra, 426 U.S. at 103, 96 S. Ct. at 1905. The applicability of the concepts of liberty of occupation and a property interest in continued employment have been dis-puted in cases, for example, involving the denial of a promotion to a particular position within an occupation. See, e.o., Bioby
- v. City of Chicaco, supra, 766 F.2d at 1059 (7th Cir. 1985) (pro-motion from police sergeant to lieutenant); Webster v. Redmond, 599 F.2d 793 (7th Cir. 1979) (promotion from teacher to princi-pal); Robb v. City of Philadelphia, 733 F.2d 286, 293-94 (3d Cir.
1984)(promotion within the civil service). But where the govern-ment action is excluding the individual from an entire occupa-i tion, or depriving an individual of an interest already acquired, there seems to be no doubt that due process rights attach to that
, act. See Bioby v. City of Chicaco, supra, 766 F.2d at 1059; Cleveland Bd. of Educ. v. Loudermill, 470 U.S. 532, 105 S. Ct.
1 I 1487,.1491-92 (1985); Hampton v. Mow Sun Wong, 426 U.S. 88, 102, 96 S. Ct. 1895, 1905 (1976). This conclusion is even more com-pelling in cases where such exclusion is based on a finding of poor character, which imposes on the individual a stigma that forecloses his freedom to take advantage of other employment ) opportunities. See Board of Recents v. Roth, supra, 408 U.S. I at ! 572-74, 92 S.Ct. at 2706-07; Paul v. Davis, 424 U.S. 693, 701-06, 96 S.Ct. 1155, 1160-63 (1976). Husted's status as an NRC-licensed operator falls squarely within the framework of the cases on the liberty and property l rights associated with an employment or professional license. Husted's status as the instructor of non-licensed operators and a supervisor of operator instructors is less conspicuous but equal-ly clear. Husted is now crohibited from pursuing these career paths, to which he has devoted his professional life, and partic-ipated in extensive training and testing to achieve. The ALJ's decision does not appear to leave open any opportunity for Mr. Husted to engage in these professional activities elsewhere, e.o., at other nuclear power plants.5/ See Initial Decision, Ultimate Conclusion and Order, at 71. It also places a stigma of
" bad character" on Husted in his purcuit of other employment opportunities. In this circumstance, a decision to disqualify f/ The ALJ did leave open the possibility that Husted could re-habilitate himself. Initial Decision at 1 151. But there is no apparent process by which Husted can avail himself of this possi-bility.
1
i Husted from all of the occupations in which he has served chal- , lenges his Fifth Amendment liberty and property rights. Having established that license revocation and the other limitations placed on Husted's professional activity threaten Husted's fundamental rights to liberty and property, the issue then is the measures which must be taken to afford appropriate protection to those rights. Stated another way, by what standard should Husted's conduct be judged that will not constitute
" unreasonable government interference" with Husted's rights? See Greene v. McElroy, supra, 360 U.S. 474, 492, 79 S. Ct. 1400, 1411.
Perhaps the most frequent challenge to the deprivation of a Fifth Amendment right is a claim that the process used to deny the individual his rights lacked procedural due process. This commonly refers to notice and the opportunity to be heard before the adverse action is taken against the individual. See, e.o., Bell v. Burson, 402 U.S. 535, 91 S. Ct. 1586 (1971) (suspending driver's license of uninsured individual who was in an accident without affording a prior hearing on fault of driver violated i i procedural due process).2/ But procedural due process, insofar l I as the entitlement to have a full opportunity to be heard, is not j i at issue in this case. Mr. Husted clearly had his day in court. 7/ The extent of the injury or deprivation of property rights determines what process is "due." Goss v. Lopez, 419 U.S. 565, 95 S. Ct. 729 (1975). 1
The issue of due process that the ALJ's decision raises is the fairness of the standard employed to disqualify Husted. This issue could be couched in terms of procedural due process, for such a process does not permit license revocation without good or
" sufficient cause." See Goss v. Lopez, 419 U.S. 565, 573, 95 S. Ct. 729, 735 (1975). Stated in those terms, the issue is whether the standard utilized by the ALJ was based on reasons that constitute " sufficient cause" for disqualification. There is also a question as to whether Husted reasonably had adequate notice of the type of misconduct that would lead to his disquali-fication from the career paths that he has pursued.8/ But the
) 8/ This notice concept is succinctly summarized in Flemino v. U.S. Department of Acriculture, 713 F.2d 179, 184 (6th Cir. 1983): The constitutional prohibition against vague laws satisfies two basic concerns. First, it provides " fair warning" so as to safeguard the innocent and, second, it avoids arbitrary applications of the law by insisting upon ex-plicit standards regulating conduct. Grayned ;
- v. City of Rockford, 408 U.S. 104, 108-109, '
92 S. Ct. 2294, 2298-99, 33 L. Ed.2d 222 (1972). To these ends, due process requires j that government regulation and statutes pro- 1 vide adequate warning as to what they command or forbid such that persons of common intel-ligence will not have to guess as to their meaning. See, e.o., Village of Hoffman Estates v. Flipside, Hoffman Estates, Inc., 455 U.S. 489, 498, 102 S. Ct. 1186, 1193, 71 L. Ed.2d 362 (1982); Diebold, Inc. v. , Marshall, 585 F.2d 1327, 1336 (6th Cir. l 1978). This standard for definitiveness is l less stringently mea'sured in the absence of either criminal penalitien or potential in-- (Continued Next Page) j
l l issue also can be characterized as a substantive due process question; that is, is there a reasonable and, hence, a fair nexus between the individual's ascribed lack of qualifications and the occupation or license at issue? If no such relationship exists, due process is violated. For "[ilt is axiomatic that the due process clause of the fifth amendment protects individuals against arbitrary deprivations of liberty or property by the fed-eral government. This includes protection against arbitrary in-trusion by the government of one's right to practice a chosen profession." Flemino v. U.S. Department of Ag,riculture, 713 F.2d 179, 183 (6th Cir. 1983), citino Greene v. McElroy, 360 U.G. 474, 492, 79 S. Ct. 1400, 1411 (1959). In Schware v. Board of Bar Examiners, 353 U.S. 232, 77 S. Ct. 752 (1957), relied on by the Licensing Board in South Texas, see page 19, supra, the Supreme Court directly addressed the need for a nexus between a license applicant's lack of qualifications and the occupation for which the license was sought. A State can require high standards of quali-fication, such as good moral character or proficiency in its law, before it admits an applicant to the bar, but any qualification must have a rational connection with the applicant's fitness or capacity to practice law.
, (Continued) terference with constitutionally protected rights. 455 U.S. at 499, 102 S. Ct. at 1194; Diebold, Inc., 585 F.2d at 1337.
Of course, the Husted case involves constitutionally protected rights. 353 U.S. at 239, 77 S. Ct. at 756.
.- In Schware, the State of New Pexico contended that the applicant lacked the necessary good moral charact?r to be licensed to practice law primarily:because of his use of aliases 5
andhisformer:connectionwithsubj'ersiveorganizations. The Su-preme Court held that New Mexico hed deprived Schware of due pro-cess of law because the basis for its disqualification "cannot be
-said to raise substantial doubts aoout his present good moral character." 353 U.S. at 246, 77 S. Ct. at 760.
In Graves v. Minnesota, 272 U'.S. 425, 47 S. Ct. 122 (1926), the Supreme Court upheld the constitutionality of a state statute prohibiting the practice of dentis ltry without a diploma from a i dental college of good standing. .The Court upheld the state's I rationale for the requirement as consistent with principles of due process because " clearly the fact that an applicant for a licenseholdsadiplomafromarehutabledentalcollegehasa i direct and substantial relation to his qualification to practice dentistry." Id. at 428, 47 S. Ct. at 123.9/ Applying this concept in Rehbock v. Dixon, 458 F. Supp. 1056, 1062 (N.D. Ill. 1978) (emphasis added), the court observed that, "If it is true that defendants have a policy of denying 2/ But as Justice Douglas stated in a dissenting opinion in Barsky v. Board of Recents, 347 U S. 442, 473-74, 74 S. Ct. 650, 666-67 (1954), "The fact that a doctor needs a good knowledge of biology is no excuse for suspending his license because he has little or no knowledge of constitutional law." 1 l l I
requests for drivers permits similar to plaintiff's by the application of valid criteria, i.e., the seriousness of the offenses, to the facts and circumstances of the case, there'could be no prospect of an erroneous deprivation of plaintiff's inter- ! l est."10/
)
i Due process requires that appropriate procedures be utilized before a license is revoked or a career is otherwise ended, and that the government authority utilize a standard that has a
" direct and substantial relation" to the qualifications necessary for the job in question. This constitutional requirement explains the critical importance of the standard used by the Com-mission in the TMI restart proceeding, viz., that the evidence against a licensee's character have a rational, that is, a direct and substantial, relationship to safe operation of the facility.
See TMI-1 Restart, CLI-85-9, 21 N.R.C. at 1136.
- b. The First Amendment Quarantee of free expression Without intending in any way to minimize the ALJ's criti-cisms of Mr. Husted, it bears mentioning that the crux of the ALJ's disqualification ruling was his conclusion that Husted had 10/ There is an analogous principle of administrative law which
. requires that a sanction imposed " bear a reasonable relationship to the goal that the governing legislation was intended to accom-plish." See Barnum v. National Transportation Safety Board, 595 F.2d 869, 872 (D.C. Cir. 1979) and cases cited therein. This principle also raises policy considerations discussed in Sec-tion II.B.3 of this Brief.
~ and continues to have a bad attitude. See Initial Decision at o 51-55, 69-70. Attitude, a word without any technical meaning, is defined as: -
- 1. manner, disposition, feeling, position, etc., with regard to a person or thing; ten-dency or orientation, esp. of the mind: a mental attitude; croup attitudes.
The Random House Dictionary of the English Languace (J. Stein, ed. 1973). Webster variously defines attitude as "a position or bearing as indicating action, feeling, or mood," "the feeling or mood itself," " behavior representative of feeling or conviction,"
"a disposition that is primarily grounded in affect and emotion and is expressive of opinions ratner than belief." Webster's Third New International Dictionary (unabridged ed. 1981) at 141.
The index to Roget's Thesaurus groups " attitude" with "positien,"
" viewpoint," " opinion" and " mental." Roget's International The-saurus (3d ed. 1962) at 689.
Attitude is not a synonym for integrity or character. See Section II.B.1, suora. An individual's attitude is his perspec-tive on or orientation towards the world. Unlike integrity or character, it need have no relationship whatsoever to one's ac-tions. But attitude may well affect personality, e.o., happiness or sadness, pleasantness or unpleasantness. The First Amendment protects the right of an individual to speak freely. U.S.C.A. Const. Amend. 1. The government is pro-hibited from infringing upon this guarantee either by general prohibition against certain forms of advocacy or by imposing 1 9 i ' i sanctions'for the expression of particular views it opposes. J l Smith v. Arkansas State Hichway Emo., Local 1315, 441 U.S. 463, I i 99 S. Ct. 1826 (1979). If government regulation is based on the content of a speech or message, the action must be scrutinized very carefully to ensure that communication has not been prohib-ited merely because public officials disapprove of the speaker's view. U.S. Postal Service v. Council of Greenburgh Civic Associations, 453 U.S. 114, 101 S. Ct. 2676 (1981). The_ inappropriate or controversial character of a statement is irrelevant to the question whether it deals with a matter of public con-cern. "[D]ebate on public issues should be uninhibited, robust, and wide-open, and . . . may well include vehement, caustic, and some- ' times unpleasantly sharp attacks on govern-ment and public officials," New York Times Co. v. Sullivan, 376 U.S. 254, 270 (1964); see also Bond v. Floyd, 385 U.S. 116, 136 (1966): "Just as erroneous statements must be protected to give freedom of expression the breathing space it needs to survive, so statements criticizing public policy and the implementation of it must be similarly pro-tected." Rankin v. McPherson, 55 U.S.L.W. 5019, 5022 (U.S. June 24, 1987). The expressly guaranteed freedoms of the First Amendment as-sure freedom of communications on matters relating to the func-tioning of the government, including "[t]he operation of the courts and the judicial conduct of judges." Landmark Communicat ions , J nc v. Viroinia, 435 U.S. 829, 839, 98 S. Ct. 1535, 1541 (1978); Richmond Newspapers, Inc. v. Viroinia, 448 U.S. 555, 100 S. Ct. 2814 (1980). Furthermore, the "First Amend-ment free speech clause cannot be laid aside simply on the basis
that the' speaker was penalized not for his speech, but for a state of mind manifested thereby." Tycrett v. Washincton, 543 F.2d 840, 845 (D.C. Cir. 1974) after remand, 627 F.2d 1279 (D.C. Cir. 1980). If speech is protected by the First Amendment, government impingements of it must be narrowly drawn. Central Hudson Gas & Elec. Corp. v. Public Service Commission'of New York, 447 U.S. 557, 100 S. Ct. 2343 (1980). An individual does not lose his First Amendment rights because he is a government employee. Husted could be characterized as a government employee since his employment is predicated on Federal licensure and in view of the government's control over his private employment in the other
. jobs that he has held. A public employee cannot be discharged on the basis of what he has said, or what he believes. Branti v.
Finkel, 445 U.S. 507, 100 S. Ct. 1287 (1980); see also Waters v. Chaffin, 684 F.2d 833 (11th Cir. 1982) (First Amendment impli-cated when government employee disciplined for his speech, not only when he is discharged). The courts balance the competing interests of the government and the individual. See, e.o., Rankin v. McPherson, suora, 55 U.S.L.W. 5019 (U.S. June 24, 1987); Berdin v. Duccan, 701 F.2d 909 (11th Cir. 1983), cert. ; denied, 464 U.S. 893, 104 S. Ct. 239 (1983).11/ Where there is 11/ In performing the balancing, the statement will not be considered in a vacuum; the man-ner, time, and place of the employee's ex-(Continued Next Page) t i
4 "no showing of harm or reasonable likelihood of harm" from the individual's speech, the person's right to free expression.out-weighs the espoused public interest. Waters v. Chaffin, supra, 684 F.2d at 840. Husted was not disqualified by the ALJ because of any speech or conduct on his part which manifested itself in an inability to
- properly perform his job. To the contrary, extensive evaluations of Husted's job performance "showed, overall, that his on-the-job attitude has been professional and appropriate to his responsi-bilities. This attitude has extended to safety, the NRC and reg-ulatory requirements." Initial Decision, 1 133. Rather, in other forums -- his OIE interviews, a deposition, and while tes-tifying as a witness -- the ALJ found that Husted was " flippant,"
" acted with disdain," and otherwise evidenced "a poor attitude toward the regulatory process." Id. at 11 102, 150.
(Continued) pression are relevant, as is the context in which the dispute arose. See, Connick, supra, [461 U.S.] at 162-153i Givhan v. Western Line Con.solidated School Dist., 439 U.S. 410, 415, n.4 (1979). We have previous-ly recognized as pertinent considerations whether the statements impairs discipline by superiors or harmony among coworkers, has a detrimental impact on close working relation-
. ships for which personal loyalty and confi-r-
' dence are necessary, or impedes the perfor-mance of the speaker's duties or interferes with the' regular operation of the enterprise. Pickerina, 391 U.S., at 570-573. Rankin v. McPherson, supra, 55 U.S.L.W. 5019 at 5022.
GPUN disapproves of any conduct or statements by Husted or others which in fact reflect a poor attitude towards the NRC pro-cess. GPUN does not condone such attitudes, and believes that they may be detrimental to job performance.12/ But GPUN believes that a person's attitude alone, which may be the consequence of personality or factors wholly independent from competence or eth-ics, is not a legitimate basis for sanctioning the individual without bumping up against First Amendment protections he is af-forded. Even, and perhaps particularly if the individual's atti-tude reflects criticisms of or irritation with government person-nel and our system of justice (e.g., depositions), such an attitude, per se, cannot be the basis for disqualification, absent any showing of harm.
- 3. Public policy considerations Husted has worked at TMI since 1974. Haverkamp, ff. Tr.
648, Att. 2 at 3. He trained and studied to become a THI-1 licensed reactor operator, and was licensed in 1978. Id. at 3.
)
He trained and studied to become an SRO, and in 1980, he obtained I his SRO license. Id. Husted began teaching at TMI in 1978, and 12/ GPUN discussed its dissatisfaction with Husted's witness performance with him. Long, ff. Tr. 755, at 2-4. GPUN's inten-sive oversight of Husted's job performance was a sanction, of sorts, that resulted from Husted's witness performance. Id. at
. 3-4. Furthermore, it muut be recognized that Husted has been se-verely sanctioned in a more direct way for his conduct as a wit-ness: he has been derailed from his chosen career path since 1984.
1 1 1 l
1 vas a valuable addition to the training organization until he was ,_ removed from training duties. See, e.g., id. at 6-22; Initial Decision at i 133 (Husted performed " conscientiously and with en-thusiasm"). In short, Husted has been an effective, contributing member of the TMI-1 organization. None of these facts is determinative. And if the Appeal' Board concluded that Charles Husted could not be trusted or relied on to conduct himself appropriately on the job, Husted's investment in his career, and GPUN's investment in Husted would be irrelevant. But GPUN is convinced, and believes the record in this case supports the conclusion, that Husted has and will in-the future instill a sense of seriousness in his students, and maintain integrity, discipline and appropriate attitudes toward nuclear safety and the regulatory process in the performance of his duties. Initial Decision at 1 130, citino Tr. 789 (Long). What, then, is the public interest to be served by disqualifying Husted from his chosen career? As a policy matter, GPUN believes it is reasonable to expect individuals who work at nuclear power plants to conduct them-selves in a manner that does not frustrate or obstruct the licensee or NRC in the conduct of their responsibilities. While this is not a qualification expressly stated in the regulations, it is a duty that ineluctably flows from the safety-significance
, of power plant activities. It is also consistent with the statu- ;
tory requirement imposed on licensees that they establish their character and that wilfully falsifying or wilfully violating
. safety requirements is not consistent with good character. See Memorandum, suora, at 2-3; South Texas, LBP-86-15, suora, 23 N.R.C. at 625-26. Individuals who deliberately prevent inspec-tors, 'nvestigators or judicial officers from doing their job in-hibit the NRC regulatory process, and a sanction for such conduct ll would be appropriate.11/
But these circumstances are not present in this case. While the ALJ found Husted's attitude as a witness to be poor and unlikeable, it did not find that Husted's attitude had safety-significant consequences -- whether in the classroom, the control room, or elsewhere. Without such consequences, Husted's attitude is not a regulatory problem. The ALJ argued that the public interest required removing Husted because of his "potantial" to adversely affect other indi-viduals' performance. Initial Decision at 1 149. The ALJ be-lieved that this conclusion followed from the Appeal Board's ear-lier removal of Husted from a supervisory role in the training organization. Initial Decision at 1 136, citina TMI-l Restart, ALAB-772, suora, 19 N.R.C. at 1223-24. But the Appeal Board was 1 13/ The South Texas case, supra, 23 N.R.C. 595, affirmed on ap-peal, recognized that the degree of the sanction imposed should carrespond to the degree of the misconduct that occurs or, as the adsge goes, that the punishnent should fit the crime. License
. revocation is, of course, one of the most severe sanctions avail-aole to the NRC. And, of course, as previously stated, Husted has already been sanctioned quite seriously for his conduct. See n.11, suora.
faced with a dilemma that the ALJ did not face: whether to risk allowing Husted to teach operations personnel, given its conclu-sion that he had exhibited a poor attitude in other contexts, when there was no evidence in the record concerning Husted's per- 4 formance on the job. See TMI-l Restart, ALAB-772, supra, 19 N.R.C. at 1222-24. The Appeal Board declined to assume that Husted's attitude as a witness did not manifest itself in his job performance and, in the interest of public health and safety, or-dered his removal. Reliance by the ALJ on the Appeal Board's treatment of Husted is misplaced because the ALJ had the record before him that the Appeal Board lacked. It is undisputable that Husted has an excellent' attitude on the job. See, e.g., Initial Decision at 150. The record establishes that there is no discernible risk with respect to Husted's job performance. Utilizing the Appeal Board's standard, referred to by the ALJ, it has been established by the overwhelming weight of the evidence that Husted has "the ability to effectively communicate a sense of responsibility as well as information and respect for procedures." Initial Deci-sion at 1 144. And he has done it in'the most relevant context available: on the job. The nuclear industry needs the services of competent and l dedicated individuals. The public interest is served by reten-
. tion of such personnel in safety-related jobs at nuclear power
( plants. The record establishes that Husted is a competent and
i l 1 l dedicated performer of his responsibilities at TMI. There is no countervailing need or public interest mandating his disqualifi-l cation from this work. In sum, it is in the public interest to remova the censure placed on Charles Husted. I C. Application of the Appropriate Standard to Husted's Conduct There are two very distinct contexts in which Husted's con-duct should be judged. They are (1) Husted's performance as an operator, a supervisor, and an instructor; and (2) Husted's per-formance as a witness. GPUN believes that the first of these two contexts is highly material to a determination of Mr. Husted's qualifications. Assuming the second context is relevant at all, it does not have a substantial and direct relationship to the qualifications at issue. Under applicable due process princi-ples, it fails to constitute a legitimate basis for denying Husted the right to pursue his chosen occupation. Moreover, it is likely that the " conduct" of which Husted is found culpable by the ALJ -- his attitude while a witness -- is conduct protected under the First Amendment. As such, penalizing Husted for his attitude requires a showing of actual harm, e.a., ome safety-significant consequences. There is manifestly no
, such harm in this case.
I i Finally, public interest considerations weigh in favor of Husted since he is a trustworthy performer on the job. l l
. A. Husted's performance as an operator, a suoervisor, and an instructor As the ALJ noted, "(a) full record was developed regarding Mr. Husted's performance on the job." Initial Decision, 1 116. 4 i That record established that Husted had not cheated, id., 1 18, and was a good performer. Id. at i 132. It also established that Mr. Fusted was highly regarded by his supervisors: he was viewed as "a competent instructor . . . on his way to becoming an excellent instructor," id. at 1 123, " extremely diligent and pro-fessional in the use of his own time," id. at 1 124, an effective supervisor, id. at 1 130, en individual with a " positive atti-tude"-in the classroom and on the job. Id. at 11 127, 129. The ALJ succinctly summarized Mr. Husted's job performance: Very extensive evaluations were made of Mr. Husted's job performance over the years. They showed, overall, that his on-the-job at-titude has been professional and appropriate to his responsibilities. This attitude has extended to safety, the NRC and regulatory requirements. He was able to overcome the challenges that the cheating incidents caused and go on to perform conscientiously and with enthusiasm. He was shown to be an employee who fulfilled the day-to-day job requirements of the positions he held in a more than ade-quate manner. Initial Decision, 1 133. Finally, it bears emphasis that none of the many criticisms
.. of Eusted by the ALJ were criticisms of Husted's performance as an operator, a supervisor, or an instructor. Rather, they re-volved around Husted's attitude as a witness: his testimony to OIE as a witness in the cheating investigation; his testimony as a witness when he was deposed, and before the Special Master dur-ing the cheating proceeding; and his testimony before the ALJ.
See Initial Decision passim; see particularly 11 148-49. B. Husted's performance;as a witness l From the Initial Decision-itself, GPUN must conclude that Husted is a poor witness. What the Appeal Board must determine, however, is the nature and the significance of Husted's witness performance. GPUN does not believe that the record reflectc thct l Husted's motives were imprcper, or that he intentionally failed to be a forthcoming and cooperative witness. The ALJ's decision l . supports this point. Because Husted's poor performance was not 1
" motivated by or reflective of a character deficiency," it should not be sanctioned as such. South Texas, supra, 23 N.R.C. at 625.
The ALJ recognized in his summary findings that the crux of i Husted's poor witness performance.was not any deliberate or wilful failure to be truthful and cooperative. See Initial Deci-sion at 11 148-150. Rather, the ALJ deduced that Husted's poor witness performance was a reflection of a poor attitude.14/ r 14/ In fact, the direct evidence on Husted's attitude, observed
, under a microscope, was favorable. See, e.o., Initial Decision U at-1 132 (emphasis added) ("Dr. Long noted no evidence, from the extensive monitoring' program and evaluation of Mr. Husted, of undesirable attitudes or lack of response for the training or li-censing process."); see also Haverkamp, ff. Tr. 648, Aff. 2 at 6-22; Long, if. Tr. 755, at 5-8. The ALJ did not take this evi-dence on attitude into account in its judgment that Husted had a
" poor attitude for the regulatory process." Id. at 1 150.
I ) The ALJ found that Husted failed to cooperate with investi-
. gator Matakas.11/ Id. at 1 73. But this judgment was based on i
the ALJ's conclusion that the information provided by Husted had j
" prove (n) to be unreliable and misleading " Id. at 1 65. The 1
ALJ did not find that Husted intended this result.ll/ Husted was not deliberately unreliable or misleading. Assuming Husted did f { not facilitate the NRC's investigatory process, which ideally he j l should have, the evidence does not suggest that his conduct ulti-
)
i mately. frustrated the process either. Similarly, the ALJ was critical of Husted's respcnses to the investigators during the initial interview by OIE. Initial Deci-sion at 11 81-86. But even if one adopts the ALJ's findings here,17/the findings on both interviews fail to show any 15/ GPUN relies on Mr. Husted's brief, which we believe explains why the weight of the evidence does not support this finding. See Charles Husted's Brief on Appeal from the Initial Decision (May 18, 1987) ("Husted Brief") at 40-44. In addition, we be-lieve there is an important inconsistency on this point in the ALJ's decision. The ALJ strongly endorsed Mr. Matakas' capabili-ties and credibility as a witness. See Initial Decision, 1 67. Yet the ALJ ignored Matakas' statement that Husted had not been uncooperative, nor did Matakas believe Husted had withheld any information during the interview or failed to be forthcoming. Id., 1 39. 11/ GPUN believes that the ALJ failed to take sufficient account of the confrontational and stressful nature of the OIE interviews which were, after all, aimed at uncovering wrongdoing by the TMI-l operators. See, e.o., Long, ff. Tr. 755, at 4-5; Brown, ff. Tr. 697, at 6-9.
. 17/ Once again, GPUN relies on Husted's argument as to his coop- (
eration during the first interview. See Husted Brief at 44-47. j We also note that the ALJ found Mr. Christman's version of what l (Continued Next Page) 1 J
knowledge of cheating by Husted at the time, or any intent to conceal information. Id. at 11 87-88, 73. Although the record is somewhat obscure on the point, there is no evidence that Husted withheld any information from the NRC. Id., 11 88, 10, 103-104. In his testimony before the Special Master, Husted was found to lack forthrightness. See, e.g., id., 1 98. He was also found to have a poor attitude towards the cheating hearing. Id., 1 105. But once again, no ill motive was attributed by the ALJ to this poor witness performance. Id. at 1 100. Thus, for exam-ple, the illustrations of contradictory statements relied on by the ALJ could well have been the result of mistaken or confused testimony.18/ No findings were made by the ALJ that Husted de-liberately testified incorrectly, or failed to disclose safety-related information. The ALJ argued that Husted had not " learned that his answers to questions must be correct and it was incum-bent on him to fully communicate his position." Id. at 1 107. Of course, this finding does not recognize that such a standard is not always possible, and not because of any lack of effort or (Continued) occurred at the first interview to be accurate, and relied on it. Initial Decision at 1 81. Yet the ALJ apparently did not con-clude, as did Christman, that while Husted was not willing to co-operate immediately, he ultimately did cooperate by answering
. OIE's questions. Id. at 11 32, 76.
18/ See Husted Brief at 48-54. i
I l l desire to do precisely this. See, e.o., Husted, ff. Tr. 330 at 25 ("The. ironic thing about those characterizations, however, is that I could not have been more serious about the entire proceed-ing. I meant no disrespect toward the hearing process. I tried ' to testify truthfully to the beJt of my ability.") In South Texas, the Licensing Board stated that the basis i for determining whether a disqualifying character deficiency has been demonstrated is whether there was a deliberate breach of an unmistakable duty, a pattern of conduct to that effect, or any indications of bad faith. South Texas, supra, 23 N.R.C. at 625. !
" Unmistakable" means " clearly defined," and " bad faith" means "a design to mislead or deceive another." Id. at 626. Even if one were to adopt the ALJ's adverse findings in this case, Charles Husted did not exhibit these qualities. He was not. prepared by training or otherwise to be a witness, and he was extremely tense about testifying. Husted, ff. Tr. 330, at 25; see also Newton, ff. Tr. 836 at 6. Not only had he heard that investigators put words in witnesses' mouths, Tr. 565 (Husted), but he well knew from his deposition, his conversations with his supervisors, such as Mr. Newton, and the imposition of a sequestration order effec-tively preventing his ar is to GPUN counsel that the restart proceeding was highly adversarial. See Long, ff. Tr. 755, at 4-5; Tr. 741 (Brown). In South Texas, the Board tolerated less-1 than-complete disclosure from a sophisticated party fully repre- j sented by counsel. Husted's circumstances were much less )
I culpable than that. ! I 1
How, then, can Husted's performance be summarized? Relying on the ALJ's findings,19/ Husted is a good performer in his job and a poor performer in another context for which he is not licensed and in which he professes no skill. But even as to this extraneous area, there is no evidence that it was improperly mo-tivated or resulted in any safety-significant consequences. Most significantly, it did not affect Husted's job perform 6nce at TMI in any way. In fact, if it is true that Husted at times had a poor attitude, the evidence establishes that notwithstanding such an attitude, Husted is a highly competent instructor, supervisor and operator. In short, the ALJ's decision suggests that there is no rela-tionship between Husted's performance as a witness and his abili-ty to do his job. Certainly, there is no basis for finding a ra-tional, substantial and direct relationship between these two activities. There is consequently no legitimate basis for dis-qualifying Husted from serving in the occupations in question. Additionally, Husted's poor performance manifested itself in an area protected by his First Amendment right of free speech. There is no evidence that Husted behaved in dereliction of any job responsibilities his cccupations require. For example, Husted did not infect student operators with ideas that could have adverse health and safety consequences. There is also no 19/ GPUN does not believe that Husted now has an attitude prob-lem although he may have at times in the past. See Long, ff. Tr. 755, at 2-8. record evidence that Husted's attitude had any other safety-significant consequences. Relying on the ALJ's findings, the worst that can be said about Mr. Husted is that at times, he in-appropriately spouted off, was not as cooperative as he could have been, and appeared to not take as seriously as he should have the NRC investigation and hearing process; and these traits manifested themselves in protected speech, but not in misconduct. The former cannot be a basis for the severe sanctions of license revocation and job disqualification imposed on Mr. Musted; the latter was not present. III. CONCLUSION
" Character" is not easy to define -- a fact well-recognized by the judges who have had the opportunity to endeavor to define and apply it. And yet for the NRC, GPUN and other licensees, it is critically important that the regulatory system not tolerate individuals whose character deficiencies adversely affect safe operation of licensed facilities.
There is ready precedent for a standard by which to assess
]
Husted's conduct in the South Texas decision, as well as in fed-eral court cases that have grappled with parallel circumstances. I One useful statement of that standard is the " direct and substan-tial relationship" test, viz., that the misconduct in question have a direct and substantial relationship to the job performance at issue. See Graves v. Minnesota, supra, 272 U.S. 425, 47 I l 1
S. Ct. 122 (1926). There is a broad range of sanctions available 'e to the NRC to respond to conduct by its licensees which merit disaoproval. But to establish a disqualifying character defi-ciency, there must be a deliberate breach of an unmistakable duty, a pattern of conduct to that effect, or an indication of bad faith. See South Texas, supra, LBP-86-15, 23 N.R.C. at 625. This clear and narrow standard is appropriate because of the se-rious consequences to an individual or a licensee of a finding of poor character. It is a clear and fair standard that ensures that nuclear safety is not compromised, and that individuals' liberties are protected. In this case, the ALJ below believed that Husted's verbal conduct was a reflection of a bad attitude. Even if one were to assume the ALJ is right about Husted's attitude as a witness,
'does that attitude constitute evidence of a disqualifying bad character? GPUN does not believe Hested's attitude as a witness had or is reasonably expected to have a negative effect on the job, nor did the ALJ make such a finding. To the contrary, Husted was performing completely satisfactorily on the job in the same timeframe that he exhibited the attitude of concern to the ALJ. The ALJ's findings do not establish any ill intent by i I
Husted, e.o., an intent to deceive or mislead. Nor does the record suggest that there were safety-significant consequences to Husted's attitude. In fact, he was explicitly found not to have cheated or lied. I i
..__O
GPUN does not condone any bad attitudes Husted may have. Nevertheless, GPUN believes that Husted's conduct as a witness does not satisfy the need for direct and substantial evidence of a disqualifying lack of character before an individual is disqualified from a job. The circumstances under which Husted vas found to have exhibited a poor attitude were stressful, unfa-miliar, perhaps confrontational, and certainly atypical. The record af firn.atively established that Husted was a highly capable i operator, instructor and supervisor in his on-the-job activities. This conclusion by the ALJ, GPUN and the NRC Staff was not reached hastily; to the contrary, it was based on the results of an intensive long-term assessment of Husted's on-the-job perfor-mance, Moreover, Mr. Husted's appropriate on-the-job conduct ex-tendedpto verbal conduct, including attitude. There is no evi-dence to indict this finding. ( s.. s 4
\
, Based on the rece-d in this proceeding, and considering the applicable' principles of' law, GPUN believes that Mr. Husted'has the requisite character to serve as a licensed operator, licensed operator instructor, and a training supervisor at TMI-1. He should be permitted to do so.
Respectfully submitted, Shaw, Pittman,.Potts & Trowbridge By: 4'S Deborah B. Bauser Counsel for GPU Nuclear Corporation 2300 N Street, N.W. ! Washington, D.C. 20037 (202) 663-8215 Dated: Jvne 30, 1987 4 { NteETF~ UM e June g,jf872 P3 :34 1 CEE ! UNITED STATES OF AMERICA 00C'? ,
~
NUCLEAR REGULATORY COMMISSION BEFORE THE ATOMIC SAFETY AND LICENSING APPEAL BOARD 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 "GPUN's Brief in Support of Mr. Charles Husted's Appeal," dated June 30, 1987, were served by deposit in the U,S. mail, first class, postage prepaid, upon the following: Docketing and Service Section Office of the Secretary i U.S. Nuclear Regulatory Commissio.t ! Washington, D.C. 20555 , The Honorable Alan S. Rosenthal Chairman Atomic Safety and Licensing Appeal Board U.S. Nuclear Regulatory Commission Washington, D.C. 20555
- The Honorable Thomas S. Moore Atomic Safety and Licensing Appeal Board U.S. Nuclear Regulatory Commission Washington, D.C. 20555 The Honorable Howard A. Wilber Atomic Safety and Licensing Appeal Board U.S. Nuclear 7egulatory Commission Washington, D.C. 20555
The Honorable Morton B. Margulies Administrative Law Judge Atomic Safety and Licensing Board Panel U.S. Nuclear Regulatory Commission Washington, D.C. 20555 l George E. Johnson, Esq. l Janice E. Moore, Esq. l Office of General Counsel U.S. Nuclear Regulatory Commission Washington, D.C. 20555 Ms. Louise Bradford Three Mile Island Alert 1011 Green Street Harrisburg, Pennsylvania 17102 Michael W. Maupin, Esq. ! Hunton & Williams l P.O. Box 1535 l Richmond, Virginia 23212 l l Atomic Safety and Licensing Appeal Board l U.S. Nuclear Regulatory Commission Washington, D.C. 20555 l Atomic Safety and Licensing Board Panel U.S. Nuclear Regulatory Commission Washington, D.C. 20555 DM b /ktaML-Deborah B. Bauser a 4 l
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