U.S. Department of Labor Office of Administrative Law Judges
304A U.S. Post Office and courthouse
Cincinnati, Ohio 45202
(513) 684-3252
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
ORDER DENYING MOTION FOR SUBSTITUTION
OF THE ADMINISTRATIVE LAW JUDGE
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.