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ORAL HISTORY OF
ALAN ROSENTHAL
Sixth Interview – June 6, 2011
This interview was conducted on behalf of the Oral History Project of the
Historical Society of the District of Columbia Circuit. The interviewee is Alan Rosenthal and
the interviewer is Judy Feigin. The interview took place at Alan Rosenthal’s apartment in the
King Farm subdivision in Rockville, Maryland, on Monday, June 6, 2011. This is the sixth
interview.
MS. FEIGIN: Good morning.
MR. ROSENTHAL: Good morning, Judy.
MS. FEIGIN: So, Alan, when we left off, you were getting ready to leave DOJ, just
about to, and I wonder if you have any final thoughts about that part of
your career.
MR. ROSENTHAL: Yes, I have a few. First, as I think I might have previously mentioned,
when I came to the Appellate Section, or as it was then known the
Supreme Court Section, in the fall of 1952, there were a total of twelve
members in that section, myself included.
MS. FEIGIN: The top people included as well?
MR. ROSENTHAL: Absolutely. The Section Chief, the Assistant Section Chief, and there
were ten Indians, myself being the most junior one. When I left, there
were approximately twenty-two. Then, so I’m informed, the staff has
been steadily increased since then, and the total number currently is
around sixty. In other words, five times the number in 1952. At the same
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time, so I’m informed, these days the section is not able to handle nearly
the percentage of cases in the courts of appeals that were handled within
the section in the twenty years that I was there. Stated otherwise, there are
a large number of cases that in my time would have been handled on
appeal by section lawyers that now have to be farmed out to the
U.S. Attorneys, and what that indicates is the enormous proliferation of
litigation in the federal courts of appeals. So that I think is one interesting
factor.
A second interesting factor is that when I left the Appellate Section
in 1972, there remained only one of the eleven others who had been there
when I arrived. In short, except for Morton Hollander, who was the Chief
of the section at the time I left, everyone else had gone. Now this is in
sharp contrast to the situation today. I’ve been gone from Civil Appellate
for the better part of 39 years, and believe it or not, there are I think five or
six of the lawyers that were in the section when I departed who are still
there.
MS. FEIGIN: Do you have any theory as to why that would be the case now as opposed
to ––
MR. ROSENTHAL: To the contrary, what surprises me is that for me at least the years that I
was in the section were years that were much more pleasant than the
working situation is in the section at present. I noted I think at the end of
the last session that I was never called upon during my twenty years there,
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up until my encounter with John Dean a month or two before I left, with a
request that I take or refrain from taking action for partisan political
reasons. Today, in the Civil Division, there are a number of political
deputies to the Assistant Attorney General in charge of the Division, and
indeed, the Appellate Staff, as what used to be called the Appellate
Section is now known, has its own political deputy. I have to think that
that means that there’s much more of a political overtone, if I may put it
that way, with regard to the Civil Division’s activities than was the case
during my twenty years there.
MS. FEIGIN: Do you know when this change occurred?
MR. ROSENTHAL: I do not know precisely. Obviously it was after I left, and my
understanding, but it might not be correct, is that it was within the last 10
to 15 years. I think there were political deputies in the Clinton
administration as well as in the second George Bush’s administration, and
they continue in the now-Obama administration. So that’s something I
frankly state I would not have liked. I would not have liked to have
worked in that section with a political deputy looking over my shoulder.
And yet, as I say, there’s this group of lawyers that have remained there
for more than 38 years, and what was of concern to me apparently is not of
concern to them, or is not of sufficient concern that they have felt the need
to seek other employment. So basically I think that’s it. I would only add
that I think that the most satisfying aspect of my twenty years at DOJ was
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the high quality of the people with whom I was associated. From top to
bottom, they were a first-class group, and that included, I might say, you,
Judy, who came in in the very late stages of my time there.
MS. FEIGIN: Thank you.
MR. ROSENTHAL: It was a very, very solid crew, and it was a great pleasure to have worked
with them. I think that we can all agree that in any work environment,
collegial work environment, it’s extremely important how good and how
decent the people are with whom you are working, and all the way through
the twenty years, they were a great group. So I think with that, I will
conclude my twenty years at the Department of Justice and move on.
MS. FEIGIN: Well you did move on, and you went to what was then known, I believe,
as the Atomic Energy Commission, and I’m wondering how it happened
that you went there, especially in light of the fact that you had never done
a case with them.
MR. ROSENTHAL: That’s right [laughter]. That was one of the very few government
agencies with which I had zero contact during my Department of Justice
years. I was sitting at my desk at DOJ in June of 1972, when my secretary
informed me that there was a Mr. X – I don’t recall now his name – on the
telephone, and he introduced himself as the legal assistant to Atomic
Energy Commissioner William Doub, and he stated that Mr. Doub would
like to have an audience with me. I said, “Well, would you mind telling
me what he wants to talk to me about?” “I think I will leave that to the
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Commissioner,” and he said, “while the Commission is basically housed
in Germantown, it does have an office at 1717 H Street, Northwest, in the
District, and he would appreciate it if you would come up to that office to
meet with him.” Well needless to say, I agreed. Also needless to say, I
was enormously curious to see what he might possibly have in mind.
I turned up at the appointed hour at 1717 H Street, Northwest, and
the Commissioner informed me that I was under consideration for the
position of Chairman of the Atomic Safety and Licensing Appeal Panel of
the AEC, and he was interested in knowing whether I wished to be further
considered. Well, you can rest assured this was a bolt out of the blue,
again recognizing my absolute lack of prior contact with this particular
agency. Mr. Doub went on to explain that I had been heavily
recommended for this position by a lawyer named Anthony Roisman who
had been involved in a fair amount of AEC litigation, and in whom
Mr. Doub had a great deal of confidence. Well, I had had no professional
contact with Tony Roisman, but it so happened that his then wife Florence
had been on the staff of the Appellate Section of the Civil Division, and I
had had a good deal of professional contact with her, and a certain amount
of social contact with Tony as well, and I can only assume that Florence
had recommended me to her husband who in turn had given my name to
Commissioner Doub.
The AEC operated on a principle that assigned specific areas of
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responsibility to particular commissioners, and the responsibility for
obtaining a chairman for this appeal panel had been put at the doorstep of
Commissioner Doub. Well, obviously, I was interested in getting a lot of
further details as to what this involved, and at the end of the session I
asked Doub if I could have a week to think about whether I wanted to be a
serious candidate, and after giving it that week’s additional thought, I
called him up and informed him that, yes, I would be willing to be a
candidate for the position. Well a week or two passed and I heard nothing,
and then I received a phone call from him in which he asked me to go to
Germantown – again, which was the headquarters of the Atomic Energy
Commission – to meet with the then chairman James Schlesinger, who at
different times occupied other positions, including Secretary of Defense,
and James Ramey. Ramey was another lawyer-commissioner and had
been on the AEC for many, many years.
They very kindly sent a car to pick me up at the Department of
Justice, and I was driven out to Germantown, the AEC headquarters, and I
first met with Jim Ramey who seemed a little chilly, I must say, and then
was ushered into the office of Chairman Schlesinger. Schlesinger said to
me, “What are you doing here?” [laughter] And I said, “Well,
Mr. Chairman, Commissioner Doub had suggested that I meet with you.”
“Well,” said Schlesinger, “I don’t know why my time is being taken up
with this meeting. It’s my understanding you’ve already been chosen.”
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[Laughter] Well that was the first that I had heard of that, but in any case,
my session with Schlesinger came to an almost immediate end, and I was
returned to the Department of Justice by the AEC driver, whereupon I
called Doub and inquired as to just where did the matter stand. He
laughed and said, “Well, the fact of it is that you’re the prime candidate,
but,” he said, “I think the chairman may have been a little premature in
announcing that you were definitely it.” Well, I waited a few weeks and
heard nothing, and then Helen and I went on vacation at the beginning of
August to Capon Springs, West Virginia, where we spend a week every
summer for God knows how many years at a resort there. I had been there
two days of the week when I received a phone call from Doub that indeed
I had been selected, and for the record, did I accept the position, and I
said, “Yes, I did.”
There’s an interesting footnote to that. My appointment was, of
course, subject to a security clearance. Whatever clearance I had received
coming into the Department of Justice, which as you recall had that
problem associated with it, was not good enough. I needed what’s
characterized as a Q clearance. So before coming on board, I had to wait
for the security clearance to be completed. I’m happy to report that the
same difficulties I encountered with the Department of Justice clearance
were not repeated [laughter], and in the latter part of September, I received
a phone call from a woman in what was then called Personnel – now I
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gather it’s always Human Relations – named Helen Washington. I
remember her name to this day. Ms. Washington said, “I’m happy to
inform you that I’m in a position to offer you the position of Chairman of
the Atomic Safety and Licensing Appeal Panel.” I said, “Well,
Ms. Washington, I thought that the position had been offered to me by
Commissioner Doub some six weeks ago.” “He had no authority to offer
the position to you. [Laughter] The formal offers must come from
somebody in Personnel.” I said, “Well, excuse me.”
In any case, the next thing that happened was that I was supposed
to report to the Commission on October 1, which would have been the 20th
anniversary of my arrival at Justice. It would have been twenty years to
the day. Well, my arrival was delayed for some two weeks because, in the
interim, I had an operation to remove a part of my thyroid that had what
turned out to be a non-malignant tumor, but I did turn up right after
Columbus Day, and it was quite a formal ceremony. Indeed, the day after
Helen Washington formally appointed me to this position, I received a
phone call from somebody in the AEC secretariat who asked me whether I
intended to produce my own Bible for the swearing in ceremony or
whether I would be satisfied with a government-issued one. I said I
thought that the government issued one would do just fine. Well, he said,
I have a second question. Are there specific individuals that you would
like invited to the swearing-in ceremony? I couldn’t think of anybody
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particularly other than the two employees of the AEC with whom I was
acquainted. One of them was the Mayor of Kensington who lived a
couple of blocks from me, and the other was the Deputy Controller who I
met previously because we had had friends in common. I mentioned those
two, but I couldn’t think of anybody else. So the day comes and I report
to Germantown for the swearing in. My office, however, was downtown
at the H Street building, and lo and behold I’m ushered into this quite
substantial conference room and there are all five commissioners plus half
a dozen other reasonably high functionaries in the AEC, and I am
administered the oath of office before this crowd – hand on the
government-issued Bible [laughter]. Never before and never since, have I
been involved personally in anything remotely resembling that swearing
in, but I have to say, that’s the way the AEC functioned. After the
swearing-in ceremony ended, I then was driven back to the District to my
new quarters in the Matomic building, that was the name of the H Street
building, and I got to work.
MS. FEIGIN: Who swore you in?
MR. ROSENTHAL: I think it was the Secretary of the Commission. When they asked me
whether I was going to supply my own Bible or not, I had an idea that this
might be something modestly out of the ordinary, but I certainly did not
expect this rather large turnout of AEC functionaries, including, as I say,
the entire five Commissioners.
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MS. FEIGIN: Before we get to the AEC and your life there, you said when you were
first approached about the job, you said let me have a week to think about
whether I want to be considered. What made you feel this was the job you
wanted or the time to leave DOJ?
MR. ROSENTHAL: I don’t recall whether I mentioned at the last session that I’d begun to have
feelings about departure, probably around the middle of the 1960s.
MS. FEIGIN: You mentioned a couple of other opportunities.
MR. ROSENTHAL: None of those panned out. At this point, in 1972, I thought the time had
really come to leave. Unlike these people who stayed for over 40 years, I
felt that as great as my years at DOJ were, the time definitely had come to
move on. With respect to this job in particular, I concluded that it would
represent a definite challenge, considering my total previous AEC noninvolvement, and at the same time, also would provide an opportunity to
play judge, and I felt that after having spent 20 years catering to judges
[laughter] that maybe there was something to be said for now having
lawyers catering to me. I think there was something of that in it as well. I
have to say that while accepting the position with no reservations, at the
same time I was a little nervous departing for this quite different position,
in an area that was totally unfamiliar to me.
MS. FEIGIN: Before we talk about how the AEC was structured, can you tell us the
nature of the cases that the AEC handled?
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MR. ROSENTHAL: Yes. For most of my time at the AEC – then NRC – I think I should state
at this point that the AEC in 1975, a little more than two years after I
arrived, was divided into two parts. The regulatory part became the
Nuclear Regulatory Commission. The promotional part, promoting the
use of atomic energy, became ERDA, the Energy Research and
Development Administration, which subsequently was factored into the
Department of Energy when that department was created. So the part of
the AEC that I was involved with was responsible for the regulation of all
civilian uses of atomic energy, and it had its source in the Atomic Energy
Act which I think was enacted in 1946, and more particularly, the Atomic
Energy Act of 1954, which still remains the source of the Commission’s
regulatory authority.
Now what we were regulating was in large measure commercial
nuclear power plants. When I arrived on the scene, there were
applications for either construction permits or operating licenses for a very
substantial number of nuclear power plants all over the country. So the
grist of the adjudicatory mill was in the area of the applications for
construction permits or operating licenses. Virtually every one of those
applications was vigorously opposed by, for the most part, local groups in
the area of the proposed facility who were dead set against the
construction in their territory of a commercial nuclear power plant. We’ll
get into it a little later, but some of their concerns were legitimate, others
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were fanciful. I can’t tell you how many people believed that a nuclear
power plant was just like an atomic bomb; it could blow up, which, of
course, was not the case.
In addition to those cases involving opposed applications for
construction permits and operating licenses for commercial nuclear power
plants, there were cases involving violations of the terms of AEC, then
NRC, licenses. When the Commission staff determined that there was a
violation of a license, the usual outcome was the imposition of a civil
penalty. In extreme cases perhaps suspension or even revocation of the
license, and the licensee was, of course, given an opportunity to challenge
the punitive action taken by the staff. So we had a certain number of those
cases.
In addition to that, there was the occasional case involving the
decommissioning of sites on which activities under a nuclear license had
been conducted. These sites would generally contain some radioactive
material, and there was always the question of how was the licensee going
to deal with that material, and they were required under Commission
regulation to come up with a decommissioning plan. The
decommissioning plan was frequently challenged by some of the folks in
the area where the activity had taken place.
Finally, believe it or not, we had a few antitrust cases. As difficult
as it might be to believe, there were competitors of the proposed nuclear
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power plant who believed that, as a result of economies of scale, these
large nuclear power plants would have a competitive advantage over the
smaller systems. Now what were these smaller systems? In large measure
they were rural electric cooperatives that generated electricity that was
then sold through distribution co-ops. In the case of Cleveland, it was a
municipal electric power company, and Cleveland at that time might have
been the only city in the United States where there were two separate
electric lines going down every block. One line that of the Cleveland
Municipal System, the other one of the investor-owned Cleveland Electric
Illuminating Company. Every individual, every homeowner, had the
option of buying electricity and having it delivered to his door by the
Municipal system or instead by the Cleveland Electric Illuminating
Company. So there was this feeling on the part of the Cleveland
Municipal system, as in the case of the electric co-ops, that the grant of a
construction and then operating license to one of these big electric
companies would put them at a competitive disadvantage, and so they
would challenge the grant of the license on antitrust grounds as indeed was
permitted by the Atomic Energy Act. In most cases what they wanted at
the end of the day was to be given a portion of the nuclear facility. Now
this is all ironic, because it turned out that the belief that there was going
to be an enormous advantage because of relative size proved to be not the
case. And indeed we had, I think, just three antitrust cases over the years,
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and those were all in the 1970s, and by the early 1980s, nobody was
claiming that there was an antitrust problem because of economy of scale.
MS. FEIGIN: Did you have to get up to speed on all the scientific background?
MR. ROSENTHAL: That gets into the question of what was the adjudicatory structure. Now in
most of the federal agencies, the adjudication of the issues coming before
the agency must be conducted by an administrative law judge, and the
administrative law judges are appointed by what was then the Civil
Service Commission, now the Office of Personnel Management. They’re
appointed to a roster, and they’re assigned to specific agencies, and the
theory is that an administrative law judge should be able to handle the
adjudication of any agency. In point of fact, I think that almost all of the
administrative law judges end up in one agency and that’s where they
remain for their entire career.
The Atomic Energy Act of 1954 provided the Atomic Energy
Commission with an exemption from the requirement of the
Administrative Procedure Act that administrative law judges be used to
conduct the agency’s adjudication. The AEC was authorized to employ,
instead, licensing boards that consisted of three individuals drawn from a
panel. In the case of the AEC, and this was carried over by the NRC, still
true today, there is a licensing board panel consisting of a certain number
of lawyers and a much larger number of technically trained individuals –
nuclear physicists, nuclear engineers, geologists, seismologists, health
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physicists, you name it. Some of the technical members are full-time.
Many of them, however, are part-timers called upon to serve on boards as
needed. Some of the part-timers come from industry, from university
faculties. Many of them are retired, but many of them are not and just fit
in their service on licensing boards with their other occupational
responsibilities.
The typical licensing board, from day one to today, consists of one
lawyer who serves as its chairman and two technical members. They’re
drawn from this large panel, and they’re assigned to the particular case by
the Chief Judge, Chief Administrative Judge, of the licensing board panel.
Now my panel was the appeal panel.
MS. FEIGIN: Let’s just go back one minute to the licensing panel. I assume it’s not
random, that it’s assigned based on skill sets?
MR. ROSENTHAL: To some extent, but at the time they’re assigned, it often – I would say
most frequently – is not known precisely what are going to be the
technical issues that come up in a case. Now, the theory is that even
though these technical members have a specific discipline, they’re
supposed to be Renaissance men and women, and I’m going to get into
that a little more when I talk about the appeal panel. They’re supposed to
be willing and able to familiarize themselves with enough of other
disciplines as might be required to adjudicate the technical issues arising
in the particular case. Now, on the other hand, it might be readily
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apparent at the very threshold when a case arrives and it’s necessary to
make the assignment that the principal issues will deal with the impact of
the proposed nuclear facility on the water – these nuclear facilities are all
located close to bodies of water, which is necessary in order to provide
cooling water. If it thus appears that water quality issues will be at the
forefront, I would suspect that the Chief Judge would look at his roster for
somebody who has special expertise in that specific sphere, but a lot of the
times, they’re selected on the basis of availability, which is a more
important consideration generally than is the matter of the specific
discipline of the member.
MS. FEIGIN: Now tell me about the appellate panel.
MR. ROSENTHAL: The appeal panel no longer exists, having been assassinated in 1991, but
that’s for next week or next session. When I arrived as chairman to
replace the chairman who had retired, there were on the appeal panel a
full-time nuclear physicist who was the vice chairman of the panel and one
other technical member who served part-time. His principal occupation
was dean of the School of Engineering and Applied Sciences at the
University of Virginia, and he came up as needed. So there were those
two technical members, one full-time, one part-time, and there was just
one other lawyer besides myself, full-time. I immediately determined that
given the caseload the appeal panel was confronted with, that was grossly
inadequate, and I made that view known to the Commission which
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immediately authorized me to take on several additional people.
In that day, the procedure for selecting members of the appeal
panel was quite different than the procedure that exists now for appointing
people to the licensing board panel. Officially, the appointment was made
by the Commission, but, in fact, it was made by me; all that I needed to do
was to determine who I wanted for the particular vacancy, send that
person’s name up. Appointed. Now today that’s not the way it functions.
If there’s a vacancy on the licensing board panel – again there’s no longer
an appeal panel – there is a formal vacancy announcement put out,
applications are collected, there’s a screening panel that interviews the
candidates, rates them A, B, C, and D, or I don’t know, and then the
A candidates names are sent up to the Commission and generally
interviewed by the commissioners who accept or reject particular
candidates. So in point of fact, the current chief administrative judge of
the licensing board panel has relatively little to say about who ultimately is
tapped for his panel.
MS. FEIGIN: How did you go about it?
MR. ROSENTHAL: Well the first vacancy I had, while I was just beginning the process of
deciding who I might select for this position, I had lunch with a former
Justice Department colleague named Mike Farrar. Mike was one of our
stars in the Appellate Section. He came to it about 1967 from a clerkship
with a district judge in New Orleans. He was I think number one in his
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class at the Notre Dame Law School. He actually had gone to
Notre Dame also as an undergraduate. He was a seven-year Golden
Domer, as they’re called. In any case, in 1970 Mike had been with us a
couple years, a stellar performer.
Bill Ruckelshaus, who was then the Assistant Attorney General of
the Civil Division, becomes the Administrator of the newly created
Environmental Protection Agency, and he appoints somebody as general
counsel and instructs him to come up with a first-class staff, and he
apparently said to the general counsel, “You might want to go over to the
Civil Division, Appellate Section, and see who you can raid.” In any
event, that’s exactly what the general counsel did, and we lost three of our
very best lawyers, Robert Zener, Dan Joseph, and Mike Farrar, to EPA.
Well this didn’t sit too well with me, and I put in a phone call to the EPA
deputy general counsel who I was told had been really the architect of this
raid, and I told him, I could understand why he was looking to build up a
first-class staff, but I thought that he might have distributed the raiding a
little more equally among the various departments and agencies. It
seemed to me that taking three of our very best lawyers was a little much.
Bear in mind, this was a staff of just about 21 or 22; this wasn’t a several
hundred lawyer staff. His response was, “I didn’t point a gun at the head
of anybody” [laughter]. Which, of course, was true, but I found was a
very unsatisfactory response.
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In any case, at the time I was faced with the decision as to who to
anoint as my first appointee, I had lunch with Mike Farrar, and it became
readily apparent to me that he wasn’t overwhelmingly happy over in EPA.
What he was, he was the Assistant General Counsel of the office that dealt
with pesticides, and he was a fighter of DDT and some of the other
pesticides which were supposed to be carcinogens or to cause other
ailments. So I said to Mike, “Any chance that you might be interested in
coming over and joining me?” Well, he said he would think about it, and
in a week or two thereafter, I think it was, he came back and said yes, he
thought he would like to join me. And so after the deputy general counsel
of EPA had raided him from Justice, I in turn raided him from the EPA.
So Mike was the first one that joined the staff.
Subsequently, I took on another alum of Civil Appellate,
Dick Salzman, who later took a demotion and became a D.C. Superior
Court judge [laughter]. And then in 1980, it was interesting. Mike had
four daughters that he had to educate. He decided that the private sector
was a greener pasture insofar as financing their college educations, so he
departed. Well I had a vacancy then, and I had as it turned out two
superlative candidates. One of them was James Asselstine, who had been
my first law clerk. I hired him in 1973 upon his graduation from the
University of Virginia Law School, and he stayed with me for the two
years, the term of my clerks, then remained in government and eventually
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ended up on the staff of the Joint Committee of Atomic Energy, which no
longer exists, but was a very formidable committee at that time.
MS. FEIGIN: Congressional committee?
MR. ROSENTHAL: Yes. Well, Jim expressed an interest in joining the panel, and even though
out of law school just seven years, I regarded him as very viable. He was
absolutely superlative. At the same time, I received a phone call from a
lawyer who I knew very well and had a great deal of respect for his
judgment. He had learned that I had this vacancy, and he recommended,
very highly, a woman named Christine Kohl, who at the time was the staff
counsel to the District of Columbia Circuit. I invited Chris over to meet
with me and was extremely impressed with her, just from that meeting. I
was so impressed that I did something I never did before and I never did
again. I sent both of their names to the Commission and said, in effect,
“Take your pick.” Well, the Commission chose Chris. I suspect, without
knowing, that the gender factor came into play, and thus poor
Jim Asselstine had to settle, a couple of years later, for a much less
prestigious position within the agency. He became an NRC
Commissioner [laughter]. Apparently, again, he was working for the Joint
Committee on Atomic Energy, and as I understand it, his mentor on that
committee saw to it he got appointed. Well I think it worked out well for
them both. Jim was an excellent Commissioner. He served only one term.
At the end of the term, he decided that he wanted to make a little more
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money than working for the government allowed. He went up to one of
the investment banking firms in New York and became their guru on all
kinds of nuclear energy matters, and I understand he made a ton of money.
On the other hand, Christine was with the appeal panel until its
abolition. The last few years she was its chairman, replacing me at the
time I retired in 1988. When the appeal panel was abolished in 1991, at
my urging, she applied for a position in the Civil Division, Appellate
Section, Appellate Staff as it’s now known. I told Bob Kopp that if he did
not take her, he would be making the largest mistake that he could
possibly make.
MS. FEIGIN: Bob Kopp, Chief of the Appellate Staff?
MR. ROSENTHAL: Bob Kopp, yes, the Director of the Appellate Staff. And I will state as
I’ve said on many occasions, that there is no lawyer that I’ve encountered
in my 60 years at the Bar – and they are 60 years this year – for whom I
have a higher regard than Christine Kohl. She is absolutely magnificent.
As I say, it worked out well for me. I think it worked out well for Chris.
I’d like to think so. And it certainly worked out well for Jim Asselstine. I
think next month Chris will have been in Civil Appellate 20 years, and it
will exactly equal the time that I was there. Whether she remains there for
20 years is another matter.
MS. FEIGIN: I notice that when you mention the people you appointed, they were all
lawyers. Did you not appoint −−
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MR. ROSENTHAL: I appointed the technical people as well. Obviously I employed a
completely different procedure in their case. What I essentially did was I
got recommendations from people in the technical world for whom I had
respect, and I acted upon mainly those recommendations. One thing that I
was very interested in and is something that came up a short while ago
was the matter of the Renaissance man and woman concept, particularly
with the appeal panel where any case that we got could – and usually did –
involve a wide range of technical issues. It was imperative that the
technical members be prepared to suit up on the disciplines which were
not their primary one as the need arose. And I would have to say that,
with one exception, all of them met the challenge. I had a health physicist
who is now long deceased who unfortunately was magnificent in dealing
with health physicist issues but he just couldn’t come to grip with the
issues that came up before the board that were in other areas, and
particularly in – the most difficult I think of the issues that we faced were
those in the area of seismology. Again, I had to use a different approach
with respect to the technical members, but on the whole, it worked out
well.
MS. FEIGIN: How many people sat on an appellate board?
MR. ROSENTHAL: Three. Unlike the licensing boards, where, as I noted, you had a lawyer
and two technical members, on the appeal boards, two lawyers and one
technical member, and in the antitrust cases, three lawyers. So it was just
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the opposite. Now, the appeal boards had two powers that most appellate
tribunals lack. First, we had the power to take evidence ourselves. And if
on an appeal from a licensing board decision, we decided that the record
needed enlargement on some issue, without exception we took the
evidence ourselves rather than remand the matter to the licensing board to
take the additional evidence. We knew precisely what the deficiency was,
at least the perceived deficiency was, and thought, therefore, that it would
be more expeditious if we took the evidence ourselves rather than remand
it.
The other respect in which we differed from the technical appellate
tribunal is that we were required to review on our own initiative every
licensing board decision that was not appealed to us. In the trade, it’s
known as sua sponte review.
There’s a very amusing story in that regard. The second case that I
sat on after coming to the AEC involved an initial decision on a
construction permit application for a proposed reactor in the state of
Michigan. No appeal was taken by the intervener who had challenged the
application before the licensing board. But nonetheless, following the
Commission’s directive that we conduct a sua sponte review in the
absence of an appeal, we took a close look at the licensing board decision
and decided that it was defective in one respect. It didn’t involve taking
additional evidence, however, and so we remanded the case to the
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licensing board to take whatever action was necessary to cure the defect.
The day after the decision issued – our decision – my secretary buzzes me
and informs me that the lawyer who represented the utility in that case
wanted to talk to me and was in the office. I couldn’t imagine what he
wanted, but I said, “Okay, have him come in.” So he comes in. Right out
of the barn, “Judge Rosenthal, I can’t imagine what you thought you were
doing when you remanded this case to the licensing board. [Laughter]
The intervener had no problem with the licensing board decision, what
possible justification did you have for sticking your nose into it?” And it
was almost in those terms. Well it was probably two minutes before I
recovered from the shock, and I said to him, “Well, Mr. X, to begin with,
you have no business being in my office.” But, I said, “Apart from that, if
you have a complaint, you’re addressing it to the wrong forum. You
might want to go up and talk to the five commissioners because in
reviewing that decision sua sponte, we were acting under a direct
instruction from the commissioners.” He turned around and walked out. I
couldn’t believe that exchange. I can tell you that at no point in the years
following that incident did I encounter anything remotely approaching it.
MS. FEIGIN: Were your decisions themselves appealable?
MR. ROSENTHAL: Our decisions were not appealable as a matter of right. The licensing
decisions were appealable as a matter of right to the appeal boards. The
appeal board decisions were reviewable by the Commission at its
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discretion. In other words, in the Supreme Court terms, certiorari
jurisdiction. A disgruntled party could file a petition for review with the
Commission. In the overwhelming majority of cases, the petition was
denied. Then our decisions, if not reviewed by the Commission, became
the final Agency action and reviewable in the federal Court of Appeals
under the Hobbs Act. If the Commission reviewed our decision, then its
decision was reviewable in the Court of Appeals.
MS. FEIGIN: Your appellate work sat at H Street?
MR. ROSENTHAL: We were only at H Street for a year, fortunately. I used to refer to the
Matomic Building as being the cockroach palace. Not that much of an
exaggeration. Actually, when I signed on board with the AEC, it was with
the understanding that the adjudicatory boards would be moving to
Bethesda very shortly, and that was another attractive feature given that I
lived in Kensington, and in point of fact, we did move to Bethesda in the
fall of 1973 and remained there.
MS. FEIGIN: Were these adjudicatory boards set up like the courts of appeals that we
are familiar with in the judicial sense? Did you have reporters? Did you
sit in robes?
MR. ROSENTHAL: No, no. Not only did we not sit in robes, we didn’t use the term “judge.”
There’s a story about that as well. When I arrived, we were all “Mr.” or
“Dr.” And then when Christine Kohl arrived, it was “Ms.” Some time in
the early 1980s, the licensing board panel acquired a new chairman, and
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the first thing – or one of the first things – that he did was to decide that
his troops should henceforth be referred to as judge. They too up to that
point were Mr., Dr., or Ms. They did have one or two women members.
Well he came down to me and told me of his intent and he said, “What do
you plan to do?” So I said, “Well, I’ll poll my gang and see what their
preference is.” The lawyer members said they could not care less. The
technical members said “Not on your life. We are Dr., and insofar as
we’re concerned, the term “doctor” is vastly superior to the term “judge.”
[Laughter] So to the day of the abolition of the appeal panel in 1991, we
were Mr., Dr., Ms.
MS. FEIGIN: Well on that note, we should end today’s session, and next time we can
talk about some of the substantive cases in which you were involved.
MR. ROSENTHAL: Very good.
MS. FEIGIN: Thank you again.
