Hasan v. Wolf Creek Nuclear Operating Corp., 2002-ERA-29 (ALJ July 8, 2002)

U.S. Department of Labor

Office of Administrative Law Judges Heritage Plaza Bldg. - Suite 530 111 Veterans Memorial Blvd Metairie, LA 70005 (504) 589-6201 (504) 589-6268 (FAX)

Issue date: 08Jul2002

CASE NO.: 2002-ERA-29

IN THE MATTER OF

SYED M.A. HASAN
    Complainant

    v.

WOLF CREEK NUCLEAR OPERATING CORPORATION
    Respondent

   On June 28, 2002, Complainant filed a "Motion for Recusal of ALJ Lee J. Romero" with the Chief Administrative Law Judge of the Office of Administrative Law Judges, U.S. Department of labor.

   Complainant avers that in his request for hearing in this matter he specifically requested the appointment of an administrative law judge "who has never been involved in my prior ERA cases." He contends that the Chief Administrative Law Judge "ignored my request and appointed ALJ Lee J. Romero in the above matter ---- ALJ Lee J. Romero was the ALJ in one of my prior ERA cases (Case No. 2000-ERA-1)."

   Complainant contends that he is "more than convinced, based on his biased RD&O, (in Case No. 2000-ERA-1, Syed M.A. Hasan v. Commonwealth Edison Company, et al.) . . . that ALJ Lee J. Romero would not be able to act as an impartial judge in the above matter (Case No. 2002-ERA-29). Based on the foregoing, Complainant sought the appointment of a "new ALJ . . . who has never been involved in my prior ERA cases" and "beg" that the undersigned recuse himself from this case.

   As a pro se litigant, Complainant requests that his pleadings be construed liberally and not be gauged by a "standard of artful pleaders (Attorneys)."

   Section 18.31(b) of the Rules of Practice and Procedure for Administrative Hearings before the Office of Administrative Law Judges provides:

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.

29 C.F.R. § 18.31. (Emphasis added).

   Similarly, the Administrative Procedures Act requires recusal by an administrative law judge upon a substantial showing of personal bias or prejudice set forth in a legally sufficient affidavit. See 5 U.S.C. § 556. This statute provides in pertinent part:

The function of presiding employees and of employees participating in decisions in accordance with section 557 of this title shall be conducted in an impartial manner. A presiding or participating employee may at any time disqualify himself. On the filing in good faith of a timely and sufficient affidavit of personal bias or other disqualification of a presiding or participating employee, the agency shall determine the matter as part of the record and decision in the case.

5 U.S.C. § 556(b).

   The requirements of 5 U.S.C. § 556(b) and 29 C.F.R. § 18.31 reveal that a timely and legally sufficient affidavit is mandated and must accompany a motion to recuse. See Gibson v. Federal Trade Commission, 682 F.2d 554 (5th Cir. 1982). As the Fifth Circuit aptly stated:

The requirement of affidavits [for recusal motions] is not an empty formality to be cast aside unilaterally by a party [to an administrative proceeding]. There are many reasons for such a requirement. An affidavit provides an exact, sworn, recitation of the facts, collected in one place . . . The affidavit requirement serves not only to focus the facts underlying the charge, but to foster an atmosphere of solemnity commensurate with the gravity of the claim. [The] failure to submit affidavits is thus an independently sufficient basis to deny the petitions in this respect.

Id. at 565. Hence, when an administrative law judge is faced with an allegation of bias or prejudice that is not accompanied by a legally sufficient affidavit, the administrative law judge is not obligated to recuse himself from the case. Id.

   Furthermore, Title 28 of the United States Code (Judiciary and Judicial Procedure), Section 144 likewise requires that assertions of personal bias or prejudice or other grounds for disqualification of a judge be supported by "the filing in good faith of a timely and sufficient affidavit." 28 U.S.C. § 144.

   Here, Complainant has not submitted an affidavit in support of his Motion For Recusal. Moreover, Complainant erroneously filed his motion with the Chief Administrative Law Judge rather than with the undersigned who has been assigned this matter. See Stephenson v. National Aeronautics & Space Administration, Case No. 1994-TSC-5 @ 2 (Sec'y Dec. 13, 1995). Therefore, the motion could be dismissed for legal insufficiency alone. However, since Complainant is proceeding without representation, the merits of the motion, or lack thereof, will be addressed below.

   Under 28 U.S.C. § 144, a judge is presumed to be impartial, and a substantial burden is imposed on the requesting party to prove otherwise. Billings v. Tennessee Valley Authority, Case No. 1991-ERA-12 @ 3 (ARB June 26, 1996).

   The Board has held that recusal is appropriate when a party demonstrates that the administrative law judge "ha[s] a personal bias or prejudice either against him or in favor of any adverse party," 28 U.S.C. § 144, or that "his impartiality might reasonably be questioned," 28 U.S.C. § 455(a), or that "he ha[s] a personal bias or prejudice concerning a party," 28 U.S.C. § 455(b)(1). Billings, Id.; See also Robinson v. Martin Marietta Serv., Inc., Case No. 1994-TSC-7 (ARB Sept. 23, 1996).

   A judge should not recuse himself on "unsupported, irrational, or highly tenuous speculation." Hinman v. Rogers, 831 F.2d 937, 939 (10th Cir. 1987). Indeed, a "judge has as much obligation not to recuse himself when there is no reason to do so as he does to recuse himself when the converse is true." United States v. Bray, 546 F.2d 851, 857 (10th Cir. 1976).

   Complainant has not advanced any specific allegation of personal bias or prejudice. It is clear that neither prior adverse rulings of a judge nor his participation in a related or prior proceeding involving the same parties are sufficient for recusal. See U.S. v. Merkt, 794 F.2d 950, 960-61 (5th Cir. 1986), cert. denied, 480 U.S. 946 (1987); See generally Liteky v. United States, 510 U.S. 540, 555, 114 S.Ct. 1147, 1157 (1994).

   Under 28 U.S.C. § 455(a), opinions held by judges as a result of what they learned in earlier proceedings are not bias or prejudice requiring recusal, and it is normal and proper for a judge to sit in the same case upon remand and successive trials involving the same parties, as here. Id. at 1157-1158; Billings. supra, @ 3-4. The source of the appearance of partiality must arise from something other than a judge's mere involvement in previous cases concerning the parties in the instant case. Id. @ 4.

   Complainant has not shown nor demonstrated any facts which would tend to show bias or prejudice, personal or otherwise, against him or in favor of an adverse party. Furthermore, it is well established that a motion to recuse must not be filed for strategic purposes. Yet, "[i]n the real world, recusal motions are sometimes driven more by litigation strategies than by ethical concerns." In re Cargill, 66 F.3d 1256, 1262-63 (1st Cir. 1995). See also Standing Committee on Discipline of U.S. District Courts v. Yagman, 55 F.3d 1430, 1443 (9th Cir. 1995("Judge-shopping doubtless disrupts the proper functioning of the judicial system and may be disciplined.")

   In view of the foregoing, the undersigned finds that Complainant has failed to establish a basis for disqualification and accordingly, his Motion for Recusal is DENIED.

   ORDERED this 8th day of July, 2002, at Metairie, Louisiana.

       LEE J. ROMERO, JR.
       Administrative Law Judge