Center for Nuclear Responsibility, Inc. v. U.S. Nuclear Regulatory Com'n

• Decision Date: 21 January 1986
• Docket Number: No. 84-5570,84-5570
• Parties: , 3 Fed.R.Serv.3d 790, 16 Envtl. L. Rep. 20,571 CENTER FOR NUCLEAR RESPONSIBILITY, INC., et al., Appellants, v. UNITED STATES NUCLEAR REGULATORY COMMISSION, et al.
• Court: U.S. Court of Appeals — District of Columbia Circuit

Page 935

781 F.2d 935

251 U.S.App.D.C. 82, 3 Fed.R.Serv.3d 790,

16 Envtl. L. Rep. 20,571

CENTER FOR NUCLEAR RESPONSIBILITY, INC., et al., Appellants, v. UNITED STATES NUCLEAR REGULATORY COMMISSION, et al.

No. 84-5570.

United States Court of Appeals, District of Columbia Circuit.

Argued Oct. 15, 1985.

Decided Jan. 21, 1986.

Appeal from the United States District Court for the District of Columbia (D.C. Civil Action No. 83-3570).

Martin H. Hodder, Miami, Fla., for appellants. William S. Jordan, III, Washington, D.C., entered an appearance for appellants.

Michael B. Blume, Atty., Nuclear Regulatory Com'n, Washington, D.C., with whom F. Henry Habicht, II, Asst. Atty. Gen., Washington, D.C., Herzel H.E. Plaine, Gen. Counsel, and William H. Briggs, Jr., Sol., Nuclear Regulatory Com'n, Washington, D.C., and Edward J. Shawaker and Dirk D. Snel, Attys., Dept. of Justice, Washington, D.C., were on the brief, for the federal appellees. E. Leo Slaggie, Atty., Nuclear Regulatory Com'n, Washington, D.C., and John A. Bryson, Atty., Dept. of Justice, Washington, D.C., entered appearances for the federal appellees.

Harold F. Reis, Washington, D.C., with whom Jill E. Grant, Washington, D.C., and Norman A. Coll, Miami, Fla., were on the brief, for appellee Florida Power & Light Co.

Before WRIGHT, WALD and GINSBURG, Circuit Judges.

Opinion for the court filed by Circuit Judge J. SKELLY WRIGHT.

Dissenting opinion filed by Circuit Judge GINSBURG.

J. SKELLY WRIGHT, Circuit Judge:

This case involves a challenge to a ruling of the Nuclear Regulatory Commission (NRC) that certain proposed amendments to a nuclear power plant's operating license present "no significant hazards considerations" and, therefore, that the amendments may be made immediately effective without a pre-determination hearing. Appellants challenged that ruling in the District Court, seeking injunctive and declaratory relief. The District Court, 586 F.Supp. 579, finding that it lacked jurisdiction, dismissed the suit. Well over three months later, appellants filed a notice of appeal. Because we find that appellants failed to file a notice of appeal within the jurisdictional time limits established by the Federal Rules of Appellate Procedure, we dismiss their appeal.

I

Appellants in this case, the Center for Nuclear Responsibility and Ms. Joette Lorion, challenge two sets of amendments to the operating license for the Turkey Point Nuclear Power Plants. They filed suit in the District Court, alleging that the NRC had improperly denied them a hearing before the amendments became effective, and that the NRC had improperly approved the amendments without an environmental impact statement.

The proposed amendments included a new fuel design and reactor configuration, as well as certain modifications of the reactors' technical specifications. The NRC published a notice of the proposed amendments and allowed any interested parties to request a hearing within 30 days. Although appellants failed to file a timely request for a hearing on the first set of amendments, they did file a timely request for a hearing on the second set of amendments. In response to appellants' amendment requests, the NRC made a finding that the proposed amendments presented "no significant hazards considerations" and, therefore, that no pre-determination hearing was required. ¹ The NRC then scheduled a hearing to determine the merits of the proposed amendments.

Appellants argue that the NRC erred in finding that the proposed license amendments involved "no significant hazards considerations" and therefore that it did not have to hold a pre-determination hearing. Appellants argue that the amendments did raise serious safety issues and that a prior hearing was required under the Atomic Energy Act of 1954, 42 U.S.C. Sec. 2011 et seq. (1982).

Appellants admittedly have had a difficult time finding a forum in which to raise their various concerns about the Turkey Point Nuclear Power Plants. They originally filed a petition in this court seeking review of an NRC refusal to institute enforcement proceedings against Florida Power & Light Company, the operator of the plants. This court dismissed that petition, finding that it did not properly have jurisdiction over the case. Lorion v. NRC, 712 F.2d 1472 (D.C.Cir.1983) (Lorion I ), rev'd, --- U.S. ----, 105 S.Ct. 1598, 84 L.Ed.2d 643 (1985). While that case was on appeal to the Supreme Court, appellants filed the present action challenging the NRC's refusal to hold a prior hearing on these amendments. Reading this court's Lorion I decision as holding that jurisdiction for such a case is in the District Court, appellants filed the case in that court. Subsequently the Supreme Court reversed Lorion I, holding that this court properly had jurisdiction over the first case. Florida Power & Light Co. v. Lorion, --- U.S. ----, 105 S.Ct. 1598, 84 L.Ed.2d 643 (1985). Finally, the District Court dismissed the present case. Appellants understandably express some frustration over the situation.

II

The District Court dismissed this case on April 26, 1984. The order was properly entered on the court's docket on April 27, 1984. The court issued its memorandum opinion supporting its order on May 4, 1984. While the memorandum opinion stated that it had dismissed the case for lack of subject-matter jurisdiction, its memorandum opinion actually reached the merits of appellants' National Environmental Policy Act (NEPA) claim, 42 U.S.C. Sec. 4321 et seq. (1982). In response the NRC filed on May 14, 1984 a motion to clarify the opinion, proposing that the court amend its opinion by holding that it lacked jurisdiction over the NEPA claim as well. On June 12, 1984 the District Court granted the motion and amended its opinion accordingly. Appellants then filed their notice of appeal on August 13, 1984--within 60 days of the June 12th decision but after the 60-day period following the original entry of judgment.

Rule 4 of the Federal Rules of Appellate Procedure provides that a notice of appeal must be filed within 60 days after entry of the "judgment" of the District Court. Fed.R.App.P. 4(a)(1). ² Rule 4(a)(4), however, provides that certain motions may toll the 60-day appeal period. ³ Our first task, then, is to determine when the District Court's judgment was entered. If the judgment was entered on April 27th or on May 4th, the notice of appeal was untimely and this court may only entertain the appeal if the NRC's motion tolled the appeal period.

A.

Appellants contend that the judgment of the District Court was the memorandum opinion issued on May 4th, rather than the April 27th order. As a result, they argue, the NRC motion on May 14th was a timely motion under Federal Rule of Civil Procedure 59(e) to amend the judgment which tolled the appeal period.

Rule 4(a)(6) provides that a judgment is entered within the meaning of Rule 4(a) "when it is entered in compliance with Rules 58 and 79(a) of the Federal Rules of Civil Procedure." Fed.R.App.P. 4(a)(6).

Fed.R.Civ.P. 58 requires that the "judgment" of a District Court be set forth in a separate document. As the notes of the Advisory Committee on Rules explain, the purpose of this requirement is to remove any doubt about when the time for filing a notice of appeal begins to run. See Notes of Advisory Committee--1963 Amendments. See also United States v. Indrelunas, 411 U.S. 216, 220, 93 S.Ct. 1562, 1564, 36 L.Ed.2d 202 (1973) (purpose of the rule to remove uncertainty over appeal period); Diamond v. McKenzie, 770 F.2d 225, 230 n. 10 (D.C.Cir.1985) (same). As the Supreme Court noted in Indrelunas, this test is to be applied mechanically "in order to avoid new uncertainties as to the date on which a judgment is entered." 411 U.S. at 222, 93 S.Ct. at 1565. Rule 79(a) requires that the clerk of the court enter the judgment on the civil docket.

Thus, as this court recently noted in Diamond v. McKenzie, supra, these two rules establish two procedural requirements for entry of a judgment that triggers the running of the time for appeal: "first, a statement of the judgment on a separate document, and second, the entry of the judgment by the clerk on the civil docket." 770 F.2d at 228.

Applying this rule to the present case compels the conclusion that the judgment of the District Court was entered on April 27th. That order clearly satisfied both of the procedural requirements of Rule 4(a)(6). It stated the judgment of the District Court on a separate document and was entered by the clerk of the court on the civil docket. Consequently, appellants' notice of appeal, filed well beyond the 60-day appeal period, was untimely.

B.

As noted above, however, under Federal Rule of Appellate Procedure 4(a)(4), the 60-day appeal period is tolled when a party files certain motions. In this case, appellants argue, the NRC motion was a motion to amend the judgment under Rule 59(e) which, if filed within 10 days of the judgment, would toll the appeal period. ⁴ Appellees argue that the motion was a Rule 60(b)(1) motion to correct a technical legal error in the judgment. ⁵ Such motions do not toll the appeal period. Appellees argue in the alternative that even if the NRC motion were a Rule 59(e) motion, it was not a timely motion and therefore could not toll the appeal period.

Courts have split over whether errors in legal reasoning may be corrected by Rule 60(b)(1) motions. ⁶ The tension between Rule 59(e) and Rule 60(b) is generated by the competing goals of finality of judgments and rendering justice to particular litigants. Those courts that oppose the use of Rule 60(b) to correct legal errors ⁷ generally base their conclusion on two arguments. First, allowing substantive modifications to be made under Rule 60(b) eviscerates the 10-day time limitation imposed by Rule 59(e) on motions to "alter or amend the judgment." Moreover, use of Rule 60(b) to correct substantive legal errors indirectly extends the appeal period. Because an...