Although we have determined that the ERA portion of this complaint should not have been dismissed, we can certainly understand why the ALJ reached a contrary conclusion. Here, the ALJ questioned whether High's claim was cognizable under the ERA and specifically directed him to show cause why the complaint should not be dismissed. High's response did not address the arguments advanced in Respondents' motions to dismiss, did not explicitly rely upon the allegation that the guards were violating 10 C.F.R. §1046.12, or even set forth any discernable legal theory underlying his case. Instead, he simply offered his theory that unfit guards may lead to a nuclear explosion and asserted that this theory, alone, is sufficient to state a cause of action. Were this the only basis upon which High's claim rested, we would not have been at all reluctant to affirm the ALJ's dismissal. This type of speculative conjecture about the effects of physically unfit guards is not sufficient to support a claim that High engaged in protected activity under the ERA.
We also emphasize that although F.R.Civ. P. 12(b)(6) may not have been the appropriate tool to use when confronted with the kind of prolix, rambling complaint that is involved in this case, an ALJ has the authority to demand that a complainant come forward with a clear articulation of his or her case. See, e.g., Salahuddin v. Cuomo, 861 F.2d 40 (2d Cir. 1988) (describing circumstances under which a confused, ambiguous complaint may be dismissed); Jochnowitz v. Russell Sage College, 1992 WL 106813 (N.D. N.Y. 1992) (dismissing complaint containing "a labyrinth of unconnected pieces of information").
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C. High's allegation of bias on the part of the ALJ.
High argues that a new ALJ should be appointed in this case because the ALJ was biased against him. Specifically, High states:
The ALJ indulged in an improper ex parte contacts [sic] with Respondents' counsel, with no court reporter, transcript or any justification or excuse. The ALJ then got angry at Complainant's counsel for raising concerns about his actions. As a result, the ALJ should be excused from further participation in this case.
Complainant's Opening Brief and Motion for Summary Reversal at 27.
LMC and LMES respond as follows:
As Complainant knows but failed to explain in his Opening Brief, the alleged "improper ex parte" contact was a short telephone conference call of which the ALJ believed that Complainant's counsel and all other parties were informed several days in advance. The ALJ and the ALJ's aides attempted to locate Complainant's counsel at the appointed time but he could not be reached. Complainant is also well aware that the ALJ, later that same day, informed Complainant's counsel of the conversation that took place during this conference call, most of it simply an announcement of the ALJ's decisions on several matters, and later set forth in a memo circulated to all parties, including Complainant.
Lockheed Martin Respondents' Response to Complainant's Opening Brief for Summary Reversal at 28.
In order to prevail on an allegation of bias, the appellant must first overcome a presumption of honesty and integrity that accompanies administrative adjudicators. See Withrow v. Larkin, 421 U.S. 35, 47 (1975); Ash Grove Cement Company v. FTC, 577 F.2d 1368, 1376 (9th Cir.), cert. denied, 439 U.S. 982 (1978). High has not demonstrated that the ALJ's communication with Respondent's counsel was evidence of bias. Even if the ALJ became angry when confronted with an allegation of bias as High alleges, a momentary loss of judicial temperament, standing alone, is insufficient to overcome the presumption of honesty and integrity that we accord to an ALJ.
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CONCLUSION
The claim against all respondents under the environmental acts is dismissed. The claim against the government respondents under the ERA is dismissed. The ALJ's recommendation to dismiss the ERA claim against LMES and LMC is rejected and this matter is REMANDED to the ALJ for further proceedings consistent with this opinion.6
SO ORDERED.
PAUL GREENBERG
Chair
CYNTHIA L. ATTWOOD
Member
RICHARD A. BEVERLY
Alternate Member