Date Issued July 15, 1986
Case Nos. 84-ERA-9
    84-ERA-10
    84-ERA-11
    84-ERA-12

In the Matter of

DONALD RICHTER
WILLIAM J. JOHNSON
RONALD D. LEHMAN

DALE R. MURPHY
    Complainants

   v.

BALDWIN ASSOCIATES
    Respondent

   This proceeding was initiated by the filing of complaints by four middle management employees of Respondent, Baldwin Associates ("Baldwin"), upon their termination from employment at the Clinton Power Station, a nuclear power plant being constructed for the Illinois Power Company by Baldwin. Each Complainant alleged that his termination violated the Energy Reorganization Act of 1974 {ERA), 42 USC §5851 (1982). Baldwin contended that the terminations were for cause. Prior to the hearing, Baldwin moved for summary decision. On April 12, 1984, I issued a Recommended Decision and Order which concluded that Baldwin's motion should be granted and the complaints dismissed because the Complainants had not engaged in any protected activity. The Secretary of Labor did not accept my recommendation and issued a Decision and Order of Remand that provides for this case to proceed to hearing.

   On March 23, 1986, Complainants, through counsel, filed a Motion for Substitution of the Administrative Law Judge. In their motion, Complainants averred that in my capacity as administrative law judge, I am not capable of unbiased and de novo consideration of the evidence. On April 4, 1986, Respondent Baldwin Associates, through counsel, filed its Opposition to Complainants' Motion for Substitution. Illinois Power Company, in response to a motion of joinder by Complainants, joined in opposition to the Motion for Substitution.

   The rules of practice applicable to adjudicatory proceedings before the Office of Administrative Law Judges, U.S. Department of Labor, are contained in Title 29, Part 18, of the Code of Federal Regulations. These rules provide only for the disqualification of an administrative law judge, not for a substitution. Section 18.31(b) provides as follows:

(b) Whenever any party shall deem the administrative law judge for any reason to be disqualified to preside in a particular proceeding, that party shall file with the administrative law judge a motion to recuse. The motion shall be supported by an affidavit setting forth the alleged grounds for disqualification. The administrative law judge shall rule upon the motion.

   Complainants' motion does not comply with the requirement of a supporting affidavit. Further, governing case law establishes that Complainants have no grounds for recusal. The fact that an administrative law judge made earlier rulings, which were reversed, does not disqualify him from presiding over a hearing upon remand. NLRB v. Donnelly Garment Co., 330 U.S. 219 (1947). This policy of remanding a case to the original judge, is adopted from the judiciary, where appellate courts regularly remand cases to trial judges for hearings. Normandy Beach Improvement Association v. Commissioner, Department of Environmental Protection, 472 A.2d 156, 160 (1983).

   The basis of Complainants' objection is that prior rulings on credibility in my recommendation for summary judgment would inhibit my unbiased and de novo consideration of the evidence. A basic assumption of our judicial system is that judges approach each new case with impartiality. Disqualification for actual bias or prejudice is a serious matter, and should be required only when bias or prejudice is established by compelling evidence. U.S. v. Balestrieri, 779 F.2d 1191, 1202 (7th Cir. 1985).

   Disqualification of judges is generally governed by 28 U.S.C. §455, a comprehensive recusal statute, which provides as follows:

(a) A justice, judge, magistrate or referee in bankruptcy of the United States shall disqualify himself in any proceeding in which his impartiality might reasonably be questioned.

(b) He shall also disqualify himself in the following circumstances:

    (1) where he has a personal bias or prejudice concerning a party, or personal knowledge of disputed evidentiary concerning the proceeding; . . .

   The purpose of subsection (a) is to promote public confidence in the impartiality of the judicial process. It is directed at preventing any appearance of partiality. More relevant to Complainants' contentions is subsection (b)(l). Interpretation of that subsection limited recusal to those situations where the judge's personal knowledge was obtained from an extrajudicial source. In Re A. H. Robins Co., Inc., 602 F. Supp. 243, 245 (1985); accord, Alberti v. General Motors Corp., 600 F. Supp. 1024, 1025 (1984); U.S. v. Jackson, 627 F.2d 1198, 1207 & n.20 (DC Cir. 1980); U.S. v. Carignan, 600 F.2d 762, 763 (9th Cir. 1979); U.S. v. Mitchell, 377 F. Supp. 1312, 1320 (D DC 1974); U.S. v. Grinnell, 384 U.S. 563, 583 (1966).

   In this cane, there exists no contention of personal bias or personal knowledge. Complainants' sole objection concerns knowledge that I acquired in a judicial capacity. Therefore, no basis exists for disqualifying myself from hearing this case.

   IT IS ORDERED, that the Complainants' Motion for Substitution of the administrative law judge be, and it hereby is DENIED. IT IS FURTHER ORDERED that this matter will be scheduled for hearing at a time and place to be designated by notice. The parties, including Illinois Power Company, joined as a party by separate order, issued this date, are to confer and to submit to the undersigned, within twenty (20) days from the date of this Order, agreed upon hearing dates.

      DANIEL J. ROKETENETZ
      Administrative Law Judge

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