NATIONAL MANUFACTURING COMPANY

OSHRC Docket No. 76-4757

Occupational Safety and Health Review Commission

May 30, 1980

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Before CLEARY, Chairman, and BARNAKO Commissioner

COUNSEL:

Baruch A. Fellner, Office of the Solicitor, USDOL

Herman Grant, Regional Solicitor, USDOL

Michael D. Freeborn, for the employer

OPINIONBY: CLEARY

OPINION:

DECISION

CLEARY, Chairman:

This case arose under the Occupational Safety and Health Act of 1970, 29 U.S.C. § §   651-678 ("the Act").   The matter is before us on interlocutory appeal pursuant to former Rule 75(c) n1 of the Commission's Rules of Procedure, 37 Fed. Reg. 20,237, 20,242 (1972) n2 on an issue certified by Administrative Law Judge Louis G. LaVecchia.   After the appeal was before the Commission, Respondent filed a request for Commissioner Cottine to voluntarily disqualify himself from ruling on the appeal.   Respondent, National Manufacturing Co.   ("National"), has moved, in the alternative, that Commissioner Cottine be involuntarily disqualified by the Commission.   Commissioner Cottine has denied the request that he disqualify himself.   Therefore, the alternative motion is before us.

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n1 Former Rule 75(c) reads as follows:

§   2200.75 Interlocutory appeals; special; as of right.

(c) Interlocutory appeal from a ruling of the judge shall be allowed as of right where the judge certifies that: (1) the ruling involves an important question of law concerning which there is substantial ground for difference of opinion; and (2) an immediate appeal from the ruling will materially expedite the proceedings.   Such appeal shall also be allowed in the circumstances set forth in §   2200.11.

n2 Rule 75 was amended by the Commission on December 5, 1979.   44 Fed. Reg. 70,106, 70,111 (1979) (to be codified in 29 C.F.R. §   2200.75).   This case is before us pursuant to Rule 75(c) prior to the amendment.

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Respondent has filed a brief with numerous exhibits in support of both its request and its motion in the alternative.   Respondent argues generally that, while employed by the Secretary of Labor before becoming a member of this Commission, Commissioner Cottine was so deeply involved in the legal and factual questions that are the subject of the interlocutory appeal that he cannot serve as an unbiased, impartial adjudicator of the case.   The Secretary of Labor ("Secretary") has submitted nothing on this issue.

Respondent takes the position that section 7 of the Administrative Procedure Act, 5 U.S.C. §   556, n3 requires disqualification under the circumstances of this case.   We are not convinced that section 7 of the Administrative Procedure Act applies to presidentially-appointed members of an administrative agency as it applies to employees of that agency who preside at hearings required by 5 U.S.C. §   554. Our reading of the decisions of the federal courts on this question has failed to provide a clear answer.   American Cyanamid Co. v. F.T.C., 363 F.2d 757 (6th Cir. 1966); S.E.C. v. R.A. Holman   [*3]    & Co., 323 F.2d 284 (D.C. Cir. 1963); see also F.T.C. v. Cement Institute, 333 U.S. 683 (1948); Pillsbury Co. v. F.T.C., 354 F.2d 952 (5th Cir. 1966). Even if we were to conclude that, without question, two members of this Commission are empowered to find that the third member is disqualified, we would decline to exercise the power under the circumstances presented by this case.

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n3 That section provides, in pertinent part:

(a) This section applies, according the provisions thereof, to hearings required by section 553 or 554 of this title to be conducted in accordance with this section.

(b) . . .   The functions 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 a part of the record and decision in the case.

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The inquiry called for by a motion for disqualification is necessarily subjective in nature and it is extremely difficult for the members of this or any collegial body to weigh the ability of another member to objectively adjudicate in issue.   While the Commission acts as a body, the Commissioners are individuals, and as such they are entitled to the respect of their colleagues.   Each Member has a separate and equal mandate from the President, with the advice and consent of the Senate, to carry out to the best of his ability the duties of the Office of Commissioner.   Involuntary disqualification of one Member by the other two certainly casts doubt on the disqualified individual's judgment, if not his integrity.   We therefore hold that the question of disqualification is primarily a matter left to the sound discretion of the member concerned.   Commissioner Cottine is the person who best knows the extent, if any, of his prior involvement with the question before us on appeal.   We will defer to his determination on this issue.

Also before us is a motion by Respondent for an evidentiary hearing on the question   [*5]   of Commissioner Cottine's disqualification. In light of our ruling on the disqualification motion, an evidentiary hearing is unnecessary.

Accordingly, we accept Commissioner Cottine's determination as dispositive.   Both motions are denied.

The remainder of this decision is before CLEARY, Chairman; BARNAKO and COTTINE, Commissioners.

CLEARY, Chairman:

On interlocutory appeal the Secretary seeks reversal of Judge LaVecchia's October 12, 1977, and November 2, 1977, orders granting the Secretary's motion to permit a discovery inspection at Respondent's Sterling, Illinois, plant but limiting entry upon the premises to employees of the federal government.

National had been issued a citation by the Secretary of Labor under section 9(a) of the Act, 29 U.S.C. §   658(a), alleging that employees at several locations in the plant were exposed to noise levels in excess of those permitted under 29 C.F.R. §   1910.95(b)(1) n4 and that feasible engineering or administrative controls were not utilized to reduce noise. A timely notice of contest was filed.   In preparation for the hearing, the Secretary made a motion under Rule 34(a)(2) of the Federal Rules of Civil Procedure n5 for entry upon Respondent's [*6]   premises for inspection and testing in order to evaluate the feasibility of engineering controls.   The Secretary wanted to have a qualified acoustical engineering expert inspect the areas listed in the citation.   Respondent opposed this motion, arguing, inter alia, that its plant is unique and contains a variety of trade secrets and that such a discovery inspection would endanger the confidentiality of its trade secrets if the discovery inspection were conducted by persons who were not federal employees subject to the provisions of 18 U.S.C. §   1905. n6 Judge LaVecchia entered an order permitting the Secretary to enter Respondent's premises for discovery purposes and issued a protective order limiting the Secretary to the use of federal experts to conduct the examination.   The judge's order conformed to the then-controlling precedent of Reynolds Metals Co., 78 OSAHRC 51/F1, 3 BNA OSHC 1749, 1975-76 CCH OSHD P20,214 (No. 4385, 1975) n7 ("Reynolds"). In Reynolds the Commission held that, absent a showing of good cause why it is necessary to use outside experts, only federal employees could participate in a discovery entry onto an employer's property where trade secrets [*7]   were likely to be disclosed.

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n4 29 C.F.R. §   1910.95(b)(1) provides:

(b)(1) When employees are subjected to sound exceeding those listed in Table G-16, feasible administrative or engineering controls shall be utilized.   If such controls fail to reduce sound levels within the levels of Table G-16, personal protective equipment shall be provided and used to reduce sound levels within the levels of the table.

n5 Rule 34(a)(2) provides:

(a) SCOPE.   Any Party may serve on any other party a request . . . (2) to permit entry upon designated land or other property in the possession or control of the party upon whom the request is served for the purpose of inspection and measuring, surveying, photographing, testing, or sampling the property or any designated object or operation thereon, within the scope of Rule 26(b).

n6 18 U.S.C. §   1905 provides:

Disclosure of confidential information generally

Whoever, being an officer or employee of the United States or of any department or agency thereof, publishes, divulges, discloses, or makes known in any manner or to any extent not authorized by law any information coming to him in the course of his employment or official duties or by reason of any examination or investigation made by, or return, report or record made to or filed with, such department or agency or officer or employee thereof, which information concerns or relates to the trade secrets, processes, operations, style of work, or apparatus, or to the identity, confidential statistical data, amount or source of any income, profits, losses, or expenditures of any person, firm, partnership, corporation, or association; or permits any income return or copy thereof or any book containing any abstract or particulars thereof to be seen or examined by any person except as provided by law; shall be fined not more than $1,000, or imprisoned not more than one year, or both; and shall be removed from office or employment.

n7 Modified and remanded, 78 OSAHRC 51/D4, 6 BNA OSHC 1667, 1978-79 CCH OSHD P22,806 (No. 4385, 1978).

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In this case, the Secretary moved for reconsideration of Judge LaVecchia's order or, in the alternative, for an evidentiary hearing to determine if trade secrets really exist.   As one ground for the motion, the Secretary expressed doubt that Respondent possessed any trade secrets. In response, Respondent filed an affidavit averring the truth of its trade secret claims.   On December 5, 1977, Judge LaVecchia denied the Secretary's alternative motions.   The Secretary petitioned for an interlocutory appeal and a stay of the proceedings.   On January 11, 1978, Judge LaVecchia certified this case for interlocutory appeal under former Commission Rule 75(c). n8

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n8 See notes 1 and 2, supra.

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We find that the issues presented here are governed by our decision in Owens-Illinois, Inc., 78 OSAHRC 105/C8, 6 BNA OSHC 2162, 1978 CCH OSHD P23,218 (No. 77-648, 1978) ("Owens"). In that case we held that the possibility of disclosure of trade [*9]   secrets to an expert who is not a federal employee does not preclude granting a motion for entry upon respondent's land for discovery purposes so long as the respondent's trade secrets are adequately protected.   We concluded in Owens that trade secrets could be adequately protected by appropriate protective orders and a provision in the Secretary's contract with the outside expert that would allow the employer an enforceable third-party beneficiary interest.   Owens described the manner in which a trade secrets claim should be raised by an employer.   It also set forth the procedure to be followed when an employer's trade secrets claim is disputed by the Secretary, as well as the minimum requirements of an acceptable protective order. To the extent that Reynolds Metals is inconsistent with Owens it was overruled.

Accordingly, the judge's order is vacated and this case is remanded for further proceedings consistent with the Commission decision in Owens. So ORDERED.

COTTINE, Commissioner, separate opinion.

In November, 1976, the Respondent, National Manufacturing Company ("National"), was cited by the Secretary of Labor for noncompliance with the occupational noise [*10]   standard published at 29 C.F.R. §   1910.95.   During the discovery stage of the subsequent adjudicatory proceedings, the Secretary sought a discovery entry into National's workplace for the purpose of having an acoustical engineer study the areas cited for and allegedly contributing to excessive workplace noise. This acoustical engineer was to be accompanied by OSHA personnel.   National objected to the entry by a consultant who was not a federal employee, claiming that certain of its trade secrets would be jeopardized.   The administrative law judge granted the Secretary's motion for entry subject to the prior issuance of a protective order designed to protect National's trade secrets. National submitted a proposed order; the Secretary did not.   On November 2, 1977, the protective order proposed by National was granted by the judge.   The order restricted entry to a government employee subject to the provisions of 18 U.S.C. §   1905. Thereafter, the judge denied the Secretary's alternative motions for reconsideration or an evidentiary hearing on the trade secrets question.   The Secretary sought and obtained interlocutory review of the legal issues raised by the judge's ruling.

This   [*11]   separate opinion addresses the disqualification motion filed by National [Parts I-III] and the merits of the interlocutory appeal [Part IV]. n1

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n1 I took no part in the consideration or decision of National's motion seeking a Commission order to disqualify me from consideration of this case.

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National has moved for my disqualification from ruling on the interlocutory appeal in this case.   National contends that I would be unable "to serve as an unbiased, unprejudiced and impartial judge of this case" because of my prior employment as special assistant to the Assistant Secretary of Labor for Occupational Safety and Health, certain activities I engaged in while employed by the Department of Labor, and my coauthorship in 1975 of a handbook on occupational safety and health while I was privately employed by the Health Research Group.

Specifically, National alleges upon information and belief that while I served as OSHA's representative on an interagency Subcommittee on Trade Secrets and Data Confidentiality, formed on   [*12]   November 4, 1977, by the Council on Environmental Quality, I investigated facts relevant to the trade secrets issue involved in this case and consulted with personnel of the Secretary regarding these issues.   National also alleges that personnel of the Secretary complained to me of difficulties they were having in complying with the Commission decision in Reynolds Metals Co., 78 OSAHRC 51/F1, 3 BNA OSHC 1749, 1975-76 CCH OSHD P20,214 (No. 4385, 1975) ("Reynolds I"), the leading Commission precedent on the trade secrets issue at that time.   National states that I discussed issues addressed by the Task Force with my successor on the Committee and read an affidavit filed by the Secretary in several cases then pending before the Commission that involved trade secrets issues. n2 National concludes that my views on the "factual issues" presented are indistinguishable from the views I developed while employed by the Secretary and that "[t]he outcome of a particular case should not be determined, or should not appear to have been determined, by appointment of a man to a quasi-judicial position where he may carry out the wishes of his former employer, a party to the case, whom he earlier [*13]   represented in other forums at which identical factual issues were involved."

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n2 National does not contend that I discussed the case now before the Commission with the Secretary or any of his representatives.

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National refers to my testimony before the Committee on Human Resources of the U.S. Senate given on September 27, 1977, during my confirmation hearing, in which I indicated, in response to questioning by Senator Harrison A. Williams, that I would be sensitive to situations that would involve conflicts of interest or the appearance of conflicts.   I stated at that time that I would abide by 29 U.S.C. §   455, the statutory criteria for disqualification of district court judges, as well as the Canons of Judicial Ethics, even though neither is statutorily binding upon a federal administrative officer.

II

National contends that my disqualification is mandated by sections 5(c) and 7(a) of the Administrative Procedure Act, 5 USC §   554(d) and 556(b).   The cited provisions provide, in pertinent part, the following:

§   [*14]   554.   Adjudications

* * *

(d) . . . An employee or agent engaged in the performance of investigative or prosecuting functions for an agency in a case may not, in that or a factually related case, participate or advise in the decision, recommended decision, or agency review pursuant to section 557 of this title, except as witness or counsel in public proceedings. n3

§   556.   Hearings; presiding employees; powers and duties; burden of proof; evidence; record as basis of decision.

* * *

(b) . . . The functions 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 matters, as a part of the record and decision in the case. n4

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n3 Section (5)(c) states that the cited subsection does not apply "to the agency or a member or members of the body comprising the agency." The U.S. Court of Appeals for the District of Columbia has applied section 5(c) to a member of the Securities and Exchange Commission, despite the exclusionary language of §   (5)(c).   Amos Treat & Co. v. SEC, 306 F.2d 260 (D.C. Cir. 1962). See generally, Freedman, CRISIS AND LEGITIMACY: THE ADMINISTRATIVE PROCESS AND AMERICAN GOVERNMENT 196-198 (1978) (disqualification for bias).

n4 The basic requirement of due process that a litigant is entitled to a fair trial in a fair tribunal, In re Murchison, 349 U.S. 133 (1955), is applicable to administrative agencies under the express terms of 5 U.S.C. §   556. American Cyanamid Company v. F.T.C., 363 F.2d 757 (6th Cir. 1966).

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National also contends that my disqualification is required under the administrative disqualification criteria established in Cinderella Career and Finishing Schools, Inc. v. F.T.C., 425 F.2d 583 (D.C. Cir. 1970); Amos Treat & Co. v. S.E.C., 306 F.2d 260 (D.C. Cir. 1962); American Cyanamid Company v. F.T.C., 363 F.2d 757 (6th Cir. 1966), and reaffirmed in Association of National Advertisers, Inc. v. F.T.C.,   460 F.Supp. 996 (D.D.C. 1978). n5

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n5 The district court decision in that case was reversed by the D.C. Court of Appeals during the pendency of National's motion.   Association of National Advertisers, Inc. v. F.T.C., No. 79-1117 (D.C. Cir. Dec. 27, 1979).

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Finally, National asserts that the requirements for disqualification of administrative officials should be as stringent as those applicable to judges, and that my disqualification is required under the criteria set forth in 28 USC § §   144 and 455. n6

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n6 The statutes provide, in pertinent part, the following:

§   144.   Bias or prejudice of judge

Whenever a party to any proceeding in a district court makes and files a timely and sufficient affidavit that the judge before whom the matter is pending has a personal bias or prejudice either against him or in favor of any adverse party, such judge shall proceed no further therein, but another judge shall be assigned to hear such proceeding.

The affidavit shall state the facts and the reasons for the belief that bias or prejudice exists, and shall be filed not less than ten days before the beginning of the term at which the proceeding is to be heard, or good cause shall be shown for failure to file it within such time.   A party may file only one such affidavit in any case.   It shall be accompanied by a certificate of counsel or record stating that it is made in good faith.

§   455.   Disqualification of justice, judge, magistrate, or referee in backruptcy

(a) Any 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 facts concerning the proceeding;

(2) Where in private practice he served as lawyer in the matter in controversy, or a lawyer with whom he previously practiced law served during such association as a lawyer concerning the matter, or the judge or such lawyer has been a material witness concerning it;

(3) Where he has served in governmental employment and in such capacity participated as counsel, adviser or material witness concerning the proceeding or expressed an opinion concerning the merits of the particular case in controversy;

(4) He knows that he, individually or as a fiduciary, or his spouse or minor child residing in his household, has a financial interest in the subject matter in controversy or in a party to the proceeding, or any other interest that could be substantially affected by the outcome of the proceeding;

(5) He or his spouse, or a person which the third degree of relationship to either of them, or the spouse of such a person:

(i) Is a party to the proceeding, or an officer, director, or trustee of a party;

(ii) Is acting as a lawyer in the proceeding;

(iii) Is known by the judge to have an interest that could be substantially affected by the outcome of the proceeding;

(iv) Is to the judge's knowledge likely to be a material witness in the proceeding.

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In addition to the grounds for disqualification urged by National, I will consider disqualification under Canon 3C of the Code of Judicial Conduct, n7 because 28 USC §   455 is premised on the Code and I referred to this standard of conduct during my Senate confirmation hearing.

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n7 Canon 3C provides, in pertinent part, the following:

C.   DISQUALIFICATION.

(1) A judge should disqualify himself in a proceeding in which his impartiality might reasonably be questioned, including but not limited to instances where:

(a) he has a personal bias or prejudice concerning a party, or personal knowledge of disputed evidentiary facts concerning the proceeding;

(b) he served as lawyer in the matter in controversy, or a lawyer with whom he previously practiced law served during such association as a lawyer concerning the matter, or the judge or such lawyer has been a material witness concerning it;

(c) He knows that he, individually or as a fiduciary, or his spouse or minor child residing in his household, has a financial interest in the subject matter in controversy or in a party to the proceeding, or any other interest that could be substantially affected by the outcome of the proceeding;

(d) he or his spouse, or a person within the third degree of relationship to either of them, or the spouse of such a person;

(i) is a party to the proceeding, or an officer, or director, or trustee of a party;

(ii) is acting as a lawyer in the proceeding;

(iii) is known by the judge to have an interest that could be substantially affected by the outcome of the proceeding;

(iv) is to the judge's knowledge likely to be a material witness in the proceeding;

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III

It is well settled that the truth of the matters alleged in an affidavit of disqualification may not be questioned, but must be accepted as true for the purpose of determining legal sufficiency. Berger v. U.S.., 255 U.S. 22, 36 (1921); Davis v. Board of School Commissioners of Mobile County, 517 F.2d 1044, 1051 (5th Cir. 1975); Tynan v. U.S., 376 F.2d 761 (D.C. Cir. 1967). n8 See generally, Comment, Disqualification of Federal District Judges - Problems and Proposals, 7 SETON HALL L. REV. 612, 619 (1976). Furthermore, this rule of construction applies "even though the judge passing on the legal sufficiency of the affidavit knows the allegations thereof are false." U.S. v. Zagari, 419 F.Supp 494, 500 (N.D. Cal. 1976), citing Hodgson v. Liquor Salesmen's Union Local No. 2, 444 F.2d 1344 (2d Cir. 1971). It is appropriate, however, to put the facts alleged into proper context and to examine the surrounding circumstances.   U.S. v. Zagari, supra, citing U.S. v. Mitchell, 377 F.Supp 1312 (D.C. D.C. 1974), aff'd sub. nom. U.S. v. Haldeman, 559 F.2d   [*19]   31 (D.C. Cir. 1976), cert. denied, 431 U.S. 933 (1977). It is with this legal standard in mind that I consider the grounds for disqualification urged by National.

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n8 Since the integrity of the judicial process requires the maintenance of an appearance of impartiality as well as actual impartiality, it is sufficient that the affiant believes the allegations to be true.   For a discussion of protections against abuse of this principle see U.S. v. Zagari, 419 F.Supp. 494, 500-01 (N.D. Cal. 1976).

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The requirement for the filing of "a timely and sufficient affidavit of personal bias or other disqualification" under 5 U.S.C. §   556(b) parallels the filing requirements under 28 U.S.C. §   144. Accordingly, it is appropriate to consider the sufficiency of National's allegations under the established criteria for determining legal sufficiency under 28 U.S.C. §   144. National claims the because it has filed the requisite affidavit under 28 U.S.C. §   144, accompanied by a certificate of counsel that it is made in good [*20]   faith, the statutory language requires that I "proceed no further." I disagree.   "It is well settled that the involved judge has the prerogative, if indeed not the duty, of passing on the legal sufficiency of a Section 144 challenge." U.S. v. Haldeman, supra at 131.

The 1974 amendments to 28 U.S.C. §   455, the statutory standard for determining whether a disqualification affidavit is legally sufficient under 28 U.S.C. §   144, n9 requires the use of an objective standard. n9a The question under 28 U.S.C. §   455 is whether the facts alleged would raise a reasonable inference of a lack of impartiality. n10 Parrish v. Board of Commissioners of Alabama State Bar, 524 F.2d 98 (5th Cir. 1975). The use of an objective standard of review is also consistent with the test to ultimately determine the disqualification of members of administrative agencies.   In Cinderella Career and Finishing Schools, Inc. v. FTC, supra, the U.S. Court of Appeals for the District of Columbia stated:

The test for disqualification has been succinctly stated as being whether "a disinterested observer may conclude that [the agency] has in some measure adjudged the facts as well as the law of a particular [*21]   case in advance of hearing it." Gilligan, Will & Co. v. SEC, 267 F.2d 461, 469 (2d Cir.), cert. denied, 361 U.S. 896. . .

425 F.2d at 591. The court also stated, quoting its opinion in Texaco, Inc. v. F.T.C., 336 F.2d 754 (D.C. Cir. 1964),

[A]n administrative hearing "must be attended, not only with every element of fairness but with the very appearance of complete fairness, ". . .   Amos Treat & Co. v. SEC. . .

Id.

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n9 Davis v. Board of School Commissioners of Mobile County, supra.

n9a The amendments to 28 U.S.C. §   455 eliminated the concept of a judge's duty to sit and replaced the earlier subjective, "in his [the judge's] opinion," standard with an objective standard.   H.R. Rep. No. 93-1453, 93d Cong., 2d Sess. 4-5, reprinted in 2 U.S. Code Cong. & Ad. News 6351, 6354-55 (1974).   The amendments made the statutory and ethical standards for disqualification "virtually identical." Id. at 6353.

n10 The Third Circuit has established the following test for legal sufficiency of an affidavit:

In an affidavit of bias, the affiant has the burden of making a three-fold showing:

1.   The facts must be material and stated with particularity;

2.   The facts must be such that, if true they would convince a reasonable man that a bias exists.

3.   The facts must show the bias is personal, as opposed to judicial, in nature.

U.S. v. Thompson, 483 F.2d 527, 528 (3d Cir. 1973) (footnote omitted).

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A

The Subcommittee on Trade Secrets and Data Confidentiality, of which I was a member for a limited period of time n11 was established by the Council on Environmental Quality "to examine the effects of federal protection of confidential and trade secret information on efforts to regulate toxic substances effectively." Report to the Toxic Substances Strategy Committee by the Subcommittee on Trade Secrets and Data Confidentiality 2 (Nov. 15, 1978).   The stated goals of the Subcommittee were:

1.   to facilitate agency access to necessary data;

2.   to facilitate public access to provide for the greatest possible public participation in federal decision-making consistent with the protection of confidential information, and

3.   to minimize administrative burdens of duplicate reporting and of ad hoc, case-by-case confidentiality determinations.

Id. After my participation was terminated, the Subcommittee's work plan was published and public comment was invited.   43 Fed. Reg. 8830 (March 3, 1978).   Serveral months later a public meeting was held to discuss the goals of the Subcommittee, preliminary recommendations [*23]   were published, and public comments were again invited.   43 Fed. Reg. 36990 (Aug. 21, 1978); 43 Fed. Reg. 39167 (Sept. 1, 1978).

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n11 My membership on this subcommittee commenced with its formation on November 4, 1977, and terminated with its meeting in December 1977.

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National claims that some of the issues addressed by the Subcommittee are issues that will control the outcome of its interlocutory appeal. National also claims that I "investigated and consulted with personnel of the Secretary and others regarding these issues," as well as facts relating to these issues, before I was confirmed as a Member of the Commission.   Facts allegedly investigated

are believed to have included the Secretary's claim that (a) National and certain other employers have allegedly opposed discovery entries by outside consultants, not because of any real fear that their trade secrets would be revealed, but rather as a strategy to hinder the complainant's enforcement efforts; (b) the Secretary is allegedly incapable of finding within [*24]   the federal government experts who could conduct discovery entries in its cases against National and the other employees, and (c) in view of the above "facts," a protective order allowing entry of an outside consultant will allegedly be adequate.

Respondent's Brief at 2.

With respect to the "issues" I allegedly considered while a member of the Task Force, National's assertions at most raise the question of whether I developed a general philosophy regarding trade secret matters from my experience on the Task Force.   It must be emphasized that a particular point of view on a legal issue is not grounds for disqualification either under the standards developed for administrative officers or under the statutory criteria for federal judges. n12 Additionally, Canon 3C(1)(a) of the Code of Judicial Conduct was carefully drafted to avoid any ambiguity that could result in the disqualification of a judge merely because of a belief about applicable law.   Accordingly, language that would have required disqualification if a judge "had a fixed belief concerning the merits" of a case was revised to require disqualification for "personal bias or prejudice." E. Thode, Reporter's Notes to Code of [*25]   Judicial Conduct 61 (1973).   See Note, Disqualification of Judges and Justices in the Federal Courts, 86 HARV L. REV. 736, 758 n.94 (1973). The same "personal bias" language appears in 5 U.S.C. §   556(b), 29 U.S.C. §   144, and 29 U.S.C. §   455. "Personal bias" refers to prejudice against a particular party.   It does not mean an impersonal prejudice based on background experience or associations of the judge.   Eisler v. U.S., 170 F.2d 273, 278 (D.C. Cir. 1948), cert. dismissed, 338 U.S. 883 (1949); Price v. Johnston, 125 F.2d 806, 811 (9th Cir. 1942), cert. denied, 316 U.S. 677 (1942), cited in Association of National Advertisers Inc., v. F.T.C., supra (Leventhal, concurring); see 2 DAVIS, ADMINISTRATIVE LAW TREATISE §   12.02 at 146-53 (1958).   "The claim of bias is general or impersonal at best," Parrish v. Board of Commissioners of Alabama State Bar, supra at 101, and is legally insufficient to require recusal.

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n12 See more detailed discussion Part III B, infra. As the legislative history for 28 U.S.C. §   455 makes clear, "[d]isqualification for lack of impartiality must have a reasonable basis." H.R. Rep. No. 93-1453, supra. The statute was not designed to permit a litigant to avoid an expected adverse decision by transforming concern that a question would be decided against him into a reasonable fear of partiality.   "Litigants ought not have to face a judge where there is a reasonable question of impartiality, but they are not entitled to judges of their own choice." Id..

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National's assertions are conclusionary in nature, are not "definite as to time, place, persons and circumstances," see U.S. v. Haldeman, supra at 134, and fail to meet the exacting standards required to "give fair support to the charge of a bent of mind that may prevent or impede impartiality of judgment." See Berger v. United States, supra at 33-34.   In order to serve as a sufficient basis for disqualification, an affidavit "must show a true personal bias, and must allege specific facts and not mere conclusions or generalities." Brotherhood of Locomotive Firemen and Enginemen v. Bangor and Aroostook R. Co., 380 F.2d 570, 576 (D.C. Cir.), cert. denied, 389 U.S. 970 (1967). "If mere rumor, gossip, or general conclusory opinions were sufficient, any party could reject a judge at will." Hodgson v. Liquor Salesmen's Union Local No. 2, supra at 1349. National does not state the basis of its belief regarding "facts" investigated by the Subcommittee, nor does it indicate in that manner "National and certain other employers" were investigated.

Although prejudgment [*27]   of legal issues generally is insufficient to warrant disqualification, prejudgment of the merits of a particular case or application of law to particular facts in controversy would require disqualification. See, e.g., American Cyanamid Company v. F.T.C., supra., Cinderella Career and Finishing Schools, Inc., v. F.T.C., supra; Texaco, Inc. v. F.T.C., supra. See generally Note, Disqualification of Judges and Justices in the Federal Courts, 86 HARV. L. REV. 736 (1973). National has stated no facts upon which it could reasonably be concluded that the merits of the interlocutory appeal in this case have been predetermined or that the appeal cannot be judged "fairly on the basis of its own circumstances." U.S. v. Morgan, 313 U.S. 409, 421 (1941). Furthermore, the issue before the Commission in this interlocutory appeal is exclusively a legal question with no factual controversy present and no factual determination to be made.

It must also be pointed out that the "investigation" I assertedly participated in did not involve an enforcement proceeding or an adjudication as contemplated by 5 U.S.C. § §   554(d) and 556(b).   Rather, the Task Force   [*28]   was concerned with the effective protection of trade secrets and confidential information as a matter of public policy, as well as public and inter-agency access to data that would assist in the federal effort to issue rules regulating exposure to toxic substances.   Accordingly, to the extent that 5 U.S.C. §   554(d) states "an employee engaged in the performance of investigative . . . functions for an agency in a case may not in that or a factually related case, participate or advise in the decision," it is inapplicable to the circumstances involved in this case.

The administrative disqualification cases relied upon by National are similarly inapposite because they involve an adjudicator's prior investigation of a party's conduct later alleged to be illegal.   In Amos Treat & Co. v. Securities and Exchange Commission, supra, Commissioner Cohen of the S.E.C. had been director of the agency division that instituted the investigation leading to suspension proceedings against the Appellants.   During the time when an informal investigation was Conducted, and part of the time when a formal examination was conducted, Commissioner Cohen was director of the division "responsible to the [*29]   Commission for the initiation, conduct and supervision," of the proceedings that led to the adjudication in which he later participated as a Commission member.   306 F.2d at 262. In American Cyanamid Company v. F.T.C., supra, Chairman Dixon of the F.T.C. was held to be disqualified from participating as a member of the Commission in adjudications involving an alleged conspiracy to fix prices and eliminate competition in the sale of tetracyclines, a broad-spectrum antibiotic.   Chairman Dixon had served as Chief Counsel and Staff Director of the Senate Subcommittee that investigated the drug industry, including the manufacture and sale of tetracyclines.   The Subcommittee's investigation, conducted subsequent to the filing of the F.T.C. complaint, concerned precisely the same issues, facts and parties later heard by the Commission.   Chairman Dixon supervised the Subcommittee's investigation, selected and examined witnesses, and participated in the presentation of factual data to the Subcommittee. The letter accompanying the report of the Subcommittee to the Senate Committee on the Judiciary, in which legal conclusions relevant to the F.T.C. proceedings were made, acknowledged [*30]   the "efforts of Paul Rand Dixon . . . both in the work of the hearings on which this report is based and the . . . preparation of this report." 363 F.2d at 767. The court concluded that the depth of Chairman Dixon's participation in the Senate investigation of tetracycline manufacture and sale barred his later participation in a case involving the same facts, issues, and parties.   The court carefully noted, however, that the Chairman's employment as counsel for the Subcommittee, standing alone, would not necessarily require disqualification. 363 F.2d at 768.

B.

The argument by National that my recusal is required because of views expressed in a handbook on OSHA law that involved related legal issues is without merit.   Neither an expression of opinion nor a particular point of view on a matter of law or administrative policy is a basis for disqualification. n13 American Cyanamid Co. v. F.T.C., supra at 764; U.S. v. Haldeman, supra at 136 n. 332.   Both administrative officials and judges "may hold policy views on questions of law prior to participating in a proceeding," Association of National Advertisers, Inc. v. F.T.C., supra, slip op. at 48, even where [*31]   advocacy of a legal position is involved.   Id, slip op. at 41.   Furthermore, disqualification of a decision maker is not required where his or her position on a policy matter related to a particular dispute is made in public.   Hortonville Joint School District No. 1 v. Hortonville Education Association, 426 U.S. 482, 493 (1976). There is no due process requirement for a judge to recuse himself "in a case after he had expressed an opinion as to whether certain types of conduct were prohibited by law." F.T.C. v. Cement Institute, 333 U.S. 683, 702-3 (1948).

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n13 See 2 DAVIS, ADMINISTRATIVE LAW TREATISE §   21.01 at 130-46 (1958); cf. Goodpasture v. TVA, 434 F.2d 760 (6th Cir. 1970) (not error for judge not to recuse in proceeding involving a property owner's challenge to the TVA's eminent domain power, even though he had authored a law review article on federal and state condemnation proceedings.) See also Justice Rehnquiests's discussion in Laird v. Tatum, 409 U.S. 824 (1972), regarding Justice Black's participations in cases that upheld the constitutionality of the Fair Labor Standards Act that he had introduced and considered while a member of the United States Senate.   Justice Rehnquist also noted that Justice Frankfurter had written extensively regarding the use of labor injunctions, had publicly expressed his views on the matter, and been involved in drafting the Norris-LaGuardia Act, yet authored one of the leading decisions interpreting that act.

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It is unreasonable to expect an official charged with administering a congressional enactment and adjudicating cases arising under that law to be completely neutral on general issues arising under the statute. n14 Impartiality has never been equated with indifference.   American Cyanamid Co. v. F.T.C., supra. Nor does impartial "mean uninformed, unthinking, or inarticulate." Association of National Advertisers, Inc. v. F.T.C., supra, slip op. at 47.   This is particularly true since the presidential appointment authority contained in section 12(a) of the Act, 29 U.S.C. §   661(a), requires appointment of the three Commission members "from among persons who by reason of training, education, or experience are qualified to carry out the functions of the Commission under this Act." Proof that a Commissioner's mind contains a void with respect to issues affecting occupational safety and health law and related legal issues would be, to borrow a phrase from Justice Rehnquist, "evidence of lack of qualification, not lack of bias." Laird v. Tatum, 409 U.S. 824, 835 (1972), cited in Association   [*33]    of National Advertisers, Inc. v. F.T.C., supra, slip op. at 41 n. 51.   "[O]fficers charged by Congress with adjudicatory functions are not assumed to be flabby creatures any more than judges are.   Both may have an underlying philosophy in approaching a specific case.   Both are assumed to be men of conscience and intellectual discipline, capable of judging a particular controversy fairly in the basis of its own circumstances." U.S. v. Morgan, supra at 421. n15 Relying on U.S. v. Morgan, supra, and FTC v. Cement Institute, supra, the U.S. Court of Appeals for the Tenth Circuit has stated: "In our opinion no basis for disqualification arises from the fact or assumption that a member of an administrative agency enters a proceeding with advance views on important economic matters in issue." Skelly Oil Co. v. Federal Power Commission, 375 F.2d 6 (10th Cir. 1967).

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n14 Professor Davis addressed this issue in his treatise on administrative law.

When Congress enacts a comprehensive statute, enunciating now policies and creating a new agency, the commissioners might be chosen from those who agree with the new policies, from those who oppose it, or from those who are indifferent.   Since the commissioners are to perform a judicial function, a superficial consideration might readily lead to a choice of the indifferent, who are relatively free from bias and may therefore be more likely to hold the scales of justice in even balance.   But the task of the administrators is not merely to find simple adjudicative facts from disputed evidence; that task includes that assembling and interpretation of social and economic facts and the positive creation of a body of subsidiary law and policy designed to promote congressional objectives.   If the people through their representative are to have power not merely to change what is written on the statute books but to have those changes made effective through actual administration, then the ideal commissioners will be men whose sincere ideas of policy conform to the broad legislative intent.   A Price Administrator ought not to be indifferent to the forces of inflation, a Trade Commissioner should not be neutral on antimonopoly policies, and a Securities and Exchange Commissioner should not be apathetic about the need for governmental restrictions.   Administrators who are unsympathetic toward the legislative program are very likely to thwart the democratic will; the way to translate legislative policies into action is to secure administrators whose honest opinions-biases-are favorable to those policies.   "It is a sine qua non of good administration that it believe in the rightness and worth of the laws it is enforcing and that it be prepared to bring to the task zeal and astuteness in finding out and making effective those purposes." [Footnotes omitted.]

DAVIS, 1 ADMINISTRATIVE LAW TREATISE §   12.01 at 137-38 (1958).   The quoted material was taken from Jaffe, The Reform of Administrative Procedure, 2 PUB. AD. REV. 141, 149 (1942).   Professor Jaffe also stated:

Our tradition rightly interpreted is that the judge should be neutral toward the question of whether the specific defendant is guilty.   It is a perversion of that tradition to demand that the judge be neutral toward the purposes of the law.

Id.

n15 Although recognizing that the same tests of disqualification cannot be applied to judges and administrative officers, Judge Leventhal has noted yet even judges are not disqualified merely because they have previously announced their positions on legal issues, even as to announcements outside the course of written decisions.   Judicial disqualification cannot be based on general frame of reference, attitudes or assumptions as to the processes of society.   And even a judge's public comment giving a general impression of a state of facts does not present a rigidity against refinement and reflection that disqualifies him from sitting in judgment on a particular fact issue.

Association of National Advertisers v. F.T.C., supra (concurring opinion) (footnotes omitted).

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C.

National asserts that the judge's ruling in this case, limiting entry to a federal employee, was consistent at the time it was rendered with the controlling Commission decision in Reynolds Metals Co., 78 OSAHRC 51/F1, 3 BNA OSHC 1749, 1975-76 CCH OSHD P20,214 (No. 4385, 1975) ("Reynolds I"), and would have to be affirmed.   National indicates that to its "great surpprise" I participated in Owens-Illinois, Inc., 78 OSAHRC 105/C8, 6 BNA OSHC 2162, 1978 CCH OSHD P23,218 (No. 77-648, 1978), the Commission decision that overruled prior Commission precedent involving trade secrets and permitted the Secretary to use non-federal noise experts during discovery entries, subject to certain delineated measures designed to protect an employer's trade secrets. National infers that my participation in Owens-Illinois amounted to participation in a case that involved a conflict or the appearance of a conflict. n16

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n16 National cites Reynolds Metals Co., 78 OSAHRC 51/D4, 6 BNA OSHC 1667, 1978 CCH OSHD P22,806 (No. 4385, 1978) ("Reynolds II") as an example of a case in which I did not participate that would have raised a conflict or the appearance of conflict had I participated. However, my decision not to participate in that case was unrelated to the substantive or procedural issues involved.   As my separate opinion in Reynolds II indicated, my nonparticipation was consistent with the policy I adopted when I joined the Commission of not participating in any case in which the other members of the Commission had previously reached a unanimous decision and a written opinion was being prepared at the time I assumed office.

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National obviously assumes that the outcome of the interlocutory appeal in this case is controlled by Owens-Illinois. National points to certain statements in Owens-Illinois that assertedly support its claim that I had prior knowledge of disputed evidentiary facts, as well as "biases and prejudices favoring the Secretary." Although I am not at all certain that the law permits National to assert objections to my prior participation in a case in which it was not a party, I will assume for the sake of assessing the legal sufficiency of National's allegations that it does.   I note, however, that Owens-Illinois is the law of the Commission with respect to protections afforded an employer's trade secrets. n17

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n17 My participation in that case was never challenged before the Commission and appellate review was not sought by any party.

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Specifically, National views with suspicion the Commission's statement in Owens-Illinois that [*36]   the opinion in that case was "based upon the Commission's experience with the trade secret issue." National notes that I joined with Chairman Cleary to form the majority in that case, that all my experience with the issue preceded my membership on the Commission, that Owens-Illinois was the first trade secret case in which I participated, and that no evidentiary hearing on the trade secret issue was held in Owens-Illinois to support my asserted "erroneous findings of certain adjudicative facts." These alleged findings in Owens-Illinois assertedly involve the existence of trade secrets and the ability of the Secretary to utilize a federal expert as well as the following statement from Owens-Illinois that is quoted by National:

Reynolds I appears to have prompted numerous employers to oppose discovery entries by outside experts on the ground that trade secrets might be revealed . . . .   [I]n some instances the objection may have been raised not out of any real fear that trade secrets would be revealed but rather as a strategy to hinder the Secretary. . . .

Respondent's Brief Supporting Disqualification of Commissioner Cottine at 15.   National contends that these [*37]   "findings" coincide with the contentions asserted by the Secretary while I was still employed by the Department of Labor, and coincide with "biases and prejudices" stated in the handbook I co-authored.

In Owens-Illinois, the Commission stated:

Based on the Commission's experience with the trade secret issue and on a reexamination of the applicable law, we rule that the likelihood that a discovery entry will disclose an employer's trade secret to those participating in the entry does not warrant barring the Secretary from using non-federal experts to make such an entry.

* * *

Based on the Commission's experience with the trade secret issue following its decision in Reynolds I, we are persuaded that such protective orders are preferable to barring the use of outside experts.   Reynolds I appears to have prompted numerous employers to oppose discovery entries by outside experts on the ground that trade secrets might be revealed.   While certainly the concern expressed for protecting the confidentiality of trade secrets has been genuine in the majority of those cases, in some instances the objection may have been raised not out of any real fear that trade secrets would be [*38]   revealed but rather as a strategy to hinder the Secretary in the prosecution of cases by sharply restricting the experts he could employ to aid his prosecution and by delaying trial on the merits through prolonged litigation over this collateral discovery matter.

   OSAHRC at   , 5 BNA OSHC at 2165, 1978 CCH OSHD at p. 28,071.   The material National chose to quote from the above discussion in Owens-Illinois was quite selective.   The decision in Owens-Illinois was based on 1) the Commission's experience, n18 2) a review of applicable law, and, as the discussion following the above-quoted material in Owens-Illinois indicates, 3) the approach generally taken by federal courts.   Furthermore, the purported "findings" that National quotes and objects ot are not findings of disputed facts and are not represented to be findings.   The validity of Owens-Illinois' trade secret claim was not determined by the Commission, nor was the ability of the Secretary to utilize a federal expert in that case considered.   The Owens-Illinois opinion clearly acknowledges the validity of most employers' expressed concern for protecting trade secrets. The mere fact that certain determinations [*39]   in Owens-Illinois coincide with the contentions of the Secretary in that case should not invoke surprise since the Secretary was a party who briefed the case and placed his contentions before the Commission for consideration.

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n18 National asserts that my only experience with the relevant issues preceded my membership on the Commission.   The reference in Owens-Illinois pertained to the Commission's institutional experience, not that of individual members.   Furthermore, it is the responsibility of any newly appointed administrative official to familiarize himself with the experience and precedent of the administrative agency he serves.

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Furthermore, although a showing of a personal prejudice or bias is legally sufficient to sustain a disqualification motion, "[i]nferences from a prior judicial determination . . . are insufficient grounds for recusal." Hodgson v. Liquor Salesmen's Union Local No. 2, supra at 1348. This is particularly true when the prior statements were made in a case in which the movant [*40]   was neither a party nor privy to a party.

Also without merit is National's suggestion that my disqualification is required because I allegedly read an affidavit filed by the Secretary that addressed the Secretary's stated inability to locate noise experts employed by the federal government who would be able to participate in OSHA proceedings in which trade secrets were claimed by the employer.   Notwithstanding the truth or falsity of the claim, the so-called "Linda Lewis Affadivit" is a public document that is part of several public records.   It cannot seriously be expected that the reading of a public document that is part of an open, public record, 29 U.S.C. §   661(f), can be the basis upon which to disqualify a government official from ruling on a case involving a related issue.   The document in question has been read by the other current Members of the Commission, by former Members of the Commission, and by countless parties that have appeared before the Commission.   The affidavit was considered by the Commission in Reynolds II, a case in which I did not participate for reasons noted supra. The affidavit was not part of the record in Owens-Illinois, and was not considered [*41]   by the Commission.   Moreover, the affidavit is not part of the record in this case.

Accordingly, for the reasons discussed in this separate opinion, National's request that I disqualify myself from ruling on the interlocutory appeal in this case, a ruling that involves strictly legal issues, is denied. n19

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n19 As a final matter it should be noted that National's assertion that the outcome of a case should not be determined by the appointment to a quasi-judicial position of a former employee of one of the parties is a factor that was considered by the Senate during the course of confirmation proceedings.

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IV

For the reasons set forth in the lead opinion, the Commission decision in Owens-Illinois, Inc., supra, is controlling on the issues presented by this case.   Accordingly, I concur in the remand to the judge for further proceedings consistent with Owens-Illinois.

CONCURBY: BARNAKO (In Part)

DISSENTBY: BARNAKO (In Part)

DISSENT:

BARNAKO, Commissioner, Concurring in part and dissenting in part:

I concur with Chairman Cleary that Commissioner [*42]   Cottine's determination on the motion to disqualify is dispositive.   With respect to the judge's ruling on the Secretary's motion for a discovery entry, I concur with the majority that this case should be remanded.   I dissent from the majority's order insofar as the majority concludes that the Secretary may use a non-federal expert to conduct the requested discovery regardless of good cause. I adhere to the views I expressed in Owens-Illinois, Inc., 78 OSAHRC 105/C8, 6 BNA 2162, 1978-79 CCH OSHD P23,218 (No. 77-648, 1978), reasserting my position in Reynolds Metals Co., 78 OSAHRC 51/F1, 3 BNA OSHC 1749, 1975-76 CCH OSHD P20,214 (No. 4385, 1975) and the Commission's subsequent decision in the same case.   78 OSAHRC 51/D4, 6 BNA OSHC 1667, 1978 CCH OSHD P22,806 (1978). If National Manufacturing proves the existence of trade secreta that would be endangered by a discovery inspection, then the Secretary must show good cause why it is necessary to use a non-federal expert.   If the Secretary fails in this respect, I would limit him to the use of a federal expert to conduct the requested discovery. If the Secretary were to show good cause for the use of a non-federal expert, I   [*43]   would agree to entry of a protective order meeting the requirements set forth in Owens. n1

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n1 Because the proceedings below arose prior to the Commission decision in Owens, wherein the Commission for the first time set forth the procedure to be followed in determining the existence of trade secrets, I would afford the parties a further opportunity to state their positions with regard to the existence of trade secrets likely to be disclosed by a discovery entry.   The judge should then weigh National Manufacturing's affidavit and any additional affidavits submitted by either party and make specific findings as to whether or not there are trade secrets likely to be disclosed by the discovery entry.   In the event the judge concludes that the issue of trade secrets cannot be decided from the affidavits alone, then he should convene an evidentiary hearing on that issue.   If the judge finds trade secrets likely to be disclosed, then in similar fashion he should decide whether good cause was shown for the use of a non-federal expert.

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