Honorable John D. Dingell

• Decision Date: 05 April 1979
• Docket Number: B-127945
• Parties: The Honorable John D. Dingell, Chairman Subcommittee on Energy and Power Committee on Interstate and Foreign Commerce House of Representatives
• Court: Comptroller General of the United States

The Honorable John D. Dingell, Chairman Subcommittee on Energy and Power Committee on Interstate and Foreign Commerce House of Representatives

No. B-127945

Comptroller General of the United States

April 5, 1979

Dear Mr. Chairman:

As you requested, we have reviewed your letter to the Chairman of the Nuclear Regulatory Commission (NRC) and the reply from its Executive Director concerning the disposition of motions for disciplinary action against a private attorney and two NRC staff members who participated in a licensing proceeding. You stated the issues in the form of five specific questions which we answer below.

The Executive Director's letter indicates that in 1976 acting on a petition for review, the United States Court of Appeals for the District of Columbia Circuit remanded an Atomic Energy Commission decision to the NRC for further adjudicatory proceedings on specific issues. The NBC reopened the hearing before an Atomic Safety Licensing Board. During the course of the reopened proceeding, the NRC staff filed a motion with the presiding Board for the censure of a private attorney representing certain interveners for alleged unprofessional conduct. The interveners then filed a motion with the Board for disciplinary action against two named MRC staff attorneys and against other unnamed members of the NRC staff for alleged misconduct. In accordance with the NRC's Rules of Practice, the Atomic Safety and Licensing Board referred the charges to a Special Board for hearing. The NRC retained private attorneys to represent the members

The Chairman of the Atomic Safety and Licensing Board Panel designated the members of the Special Board, and the Board held a preheating conference. However, we understand that the parties have since agreed to a settlement of this matter by mutually withdrawing all charges of misconduct.

You first ask, "1. What is the statutory authority for the Nuclear Regulatory Commission to independently hear and rule upon complaints of 'professional misconduct' involving a) those who participated in an CHIC licensing proceeding and b) members of its own staff."

There is no statute which by its express terms authorizes the NRC to conduct disciplinary proceedings involving counsel who appear in licensing proceedings before it. We believe that this authority ma-y be implied from the NRC's derived general statutory authority to make rules and regulations.

The NRC was established by the Energy Reorganization Act of 1974 Pub. L. No. 93-438 The Act's basic purpose was to separate the regulatory functions of the Atomic Energy Commission (AEC) from its developmental and promotional functions, and divide them between two newly-created agencies, the Energy Research and Development Administration and NRC. Through the Transitional Provisions of Title III of the Energy Reorganization Act, the NRC has inherited the AEC's general rule-making authority. Under subsection 201(g) and section 304, whatever authority the AEC had with respect to licensing and regulation was transferred to the ARC and its officers and components.

At the time of enactment of the Energy Reorganization Act of 1974 42 U.S.C. Sec. 2201(p) provided that in the performance of its functions the AEC was authorized to make such rules and regulations as may be necessary to carry out its statutory purposes. Included among the purposes were licensing and regulation. Accordingly, the AEC's authority to make rules and regulations would be included in the functions necessary to carry out licensing and regulation which have been transferred under subsection 201(g), and are now vested in the NRC.

Federal courts have construed statutes which give an administrative body the power to make rules and regulations necessary for the execution of its function as implied authority to take disciplinary action against attorneys who appear before it. Goldsmith v. United States Board of Tax Appeals, 270 U.S. 117, 46 S.Ct. 215, 70 L.Ed. 494 (1926); Koden v United States Department of Justice, 564 F.2d 228 (7th Cir. 1977); Herman v. Dulles, 205 F.2d 715 (D.C Cir. 1953); Schwebel v. Orrick, 153 F.Supp. 701 (D.C.D.C. 1957), aff'd on other grounds, 251 F.2d 919, cert. denied 356 U.S. 927 (1958); Camp v. Herzog, 104 F.Supp. 134 (D.C.D.C. 1952).

For example, in Camp v. Herzag, a case involving the power of the National Labor Relations Board to suspend or disbar a person from practicing before it, the Court mined 29 U.S.C. Sec. 156 which provided:

"The Board shall have authority from time to time to make, amend, and rescind, in the manner prescribed by the Administrative Procedure Act, such rules and regulations as may be necessary to carry out the provisions of this subchapter."

The Court interpreted this rule-making power as a grant by Congress of authority for the Board to make appropriate rules for disciplining attorneys who appeared before it.

A rationale for this construction was stated by the Supreme Court in Goldsmith v. United States Board of Tax Appeals, supra. That case involved the question of whether the Act creating the Board of Tax Appeals and granting the general authority to prescribe its rules of procedure, authorized the Board to set standards for determining who may practice before it. In holding that the grant of rule-making power did confer such authority, the Court said, at 121:

"We think that the character of the work to be done by the Board, the quasi judicial nature of its duties, the magnitude of the interests to be affected by its decisions, all require that those who represent the taxpayers in the hearings should be persons whose qualities as lawyers or accountants will secure proper service to their clients and to help the Board in the discharge of its important duties."

This principle appears equally applicable in this case.

In the light of these decisions, we conclude that when it provided the general statutory power to make regulations necessary for the execution of its functions, Congress also by implication conferred upon the NRC the authority to discipline attorneys who practice before it.

An agency may incur expenses which are necessary or incident to the accomplishment of an authorized activity. See 44 Comp. Gen. 312, 314 (1964). The proposed administrative proceeding would have enabled the NRC to obtain the facts, and hear the arguments which would have guided its determination of whether or not to discipline the attorneys in this case. Thus, the hearings are incident to the MRCIs exercise of authority to discipline counsel and the NRC is authorized to conduct them.

Your second question is, "What is the statutory authority for the Nuclear Regulatory Commission's establishment of a special panel to hear these complaints."

Section 2243 of title 42 of the United States Code provides the HRC's statutory authority to establish a Special Board. It provides:

"(a) Notwithstanding the provisions of-7(a) and 8(a) of the Administrative Procedure Act, the Commission is authorized to establish one or more atomic safety and licensing boards, each comprised of three members, one of whom shall be qualified in the conduct of administrative proceedings and two of whom shall have such technical or other qualifications as the Commission deems appropriate to the issues to be decided, to conduct such hearings as the Commission may direct and make such intermediate or final decisions as the Commission may authorize with respect to the granting, suspending, revoking or amending of any license or authorization under the provisions of this chapter, any other provision of law, or any regulation of the Commission issued thereunder. The Commission may delegate to a board such other regulatory functions as the Commission deems appropriate. The Commission may appoint a panel of qualified persons from which board members may be selected.

"(b) Board members may be appointed by the Commission fromprivate life, or designated from the staff of the Commission or other Federal agency. Board members appointed from private life shall receive a per diem compensation for each day spent in meetings or conferences, and all members shall receive their necessary traveling or other expenses while engaged in the work of a board. The provisions of section 2203 of this title shall be applicable to board members appointed from private life." (Emphasis added.)

(The "Commission" referred to was the AEC. As we explained in our answer to question 1, AEC authority is made applicable to the NRC through the "transfer of functions" provision of the Energy Reorganization Act of 1974.)

By providing that the AEC could delegate to the boards "such functions as the Commission deems appropriate " Congress intended to authorize it to use the boards in exercising functions allied to its regulatory responsibility (i.e., in an advisory capacity in connection with rule- making). H.R. Rep. No. 1966, 87th Cong., 1st Sess. 5, 6 (1966). Orderly conduct by participants in licensing hearings in compliance...