Honicker v. Hendrie

• Decision Date: 12 January 1979
• Docket Number: No. 78-3371-NA-CV.,78-3371-NA-CV.
• Parties: Jeannine HONICKER v. Joseph M. HENDRIE, Victor Gilinsky, Richard Kennedy, Peter Bradford, John Ahearne, United States Nuclear Regulatory Commission.
• Court: U.S. District Court — Middle District of Tennessee

465 F. Supp. 414

Jeannine HONICKER v. Joseph M. HENDRIE, Victor Gilinsky, Richard Kennedy, Peter Bradford, John Ahearne, United States Nuclear Regulatory Commission.

No. 78-3371-NA-CV.

United States District Court, M. D. Tennessee, Nashville Division.

January 12, 1979.

COPYRIGHT MATERIAL OMITTED

Joel Kachinsky, Summertown, Tenn., for plaintiff.

Irvin H. Kilcrease, Jr., Asst. U. S. Atty., Nashville, Tenn., E. Leo Slaggie, Sheldon L. Trubatch, James L. Kelley, Stephen F. Eilperin, U. S. Nuclear Regulatory Commission, Washington, D.C., for defendants.

MEMORANDUM

MORTON, Chief Judge.

Plaintiff Jeannine Honicker brought this action seeking an injunction ordering defendants, members of the United States Nuclear Regulatory Commission (the NRC), to revoke the licenses of all nuclear fuel cycle facilities within the jurisdiction of the Commission. According to plaintiff, nuclear power production activities sanctioned by defendants pose an unavoidable health hazard to plaintiff and others that will cause United States citizens and foreign nationals to suffer disease and death in this and future generations. Plaintiff contends, therefore, that defendants' licensing of nuclear fuel cycle facilities deprives plaintiff and others of life without due process of law in violation of the United States Constitution and fails to assure adequate protection of the public health and safety in violation of 42 U.S.C. § 2011 et seq. Prior to instituting this suit, plaintiff filed a petition with the NRC requesting emergency and remedial action by that body to grant essentially the same relief that plaintiff presently seeks in this court. The NRC denied the request for emergency relief but has been and is currently considering all other aspects of the case pursuant to appropriate sections of 10 C.F.R. pt. 2 (1978)¹ and the general supervisory powers of the NRC. At this juncture the court is faced with the question, presented by defendants' motion to dismiss, of whether or not the court has subject matter jurisdiction over this action. For the reasons hereinafter stated, the court has concluded that it does not.

First, plaintiff has failed to exhaust the available administrative remedies as required by the general rule that "no one is entitled to judicial relief for a supposed or threatened injury until the prescribed administrative remedy has been exhausted." Myers v. Bethlehem Shipbuilding Corp., 303 U.S. 41, 50-51, 58 S.Ct. 459, 463, 82 L.Ed. 638, 644 (1938); see, e. g., Coalition for Safe Nuclear Power v. United States Atomic Energy Commission, 150 U.S.App. D.C. 118, 463 F.2d 954 (1972); Concerned Citizens of Rhode Island v. Nuclear Regulatory Commission, 430 F.Supp. 627 (D.R.I. 1977); Nader v. Ray, 363 F.Supp. 946 (D.D. C.1973). But see Drake v. Detroit Edison Co., 443 F.Supp. 833 (W.D.Mich.1978). When applicable, the exhaustion doctrine precludes a court from asserting jurisdiction over the controversy until the administrative process has been completed. See, e. g., Concerned Citizens of Rhode Island v. Nuclear Regulatory Commission, supra, 430 F.Supp. at 632. In the present case, both the Atomic Energy Act, 42 U.S.C. § 2239(a), and the regulations of the NRC, 10 C.F.R. §§ 2.200-2.206 (1978) and 10 C.F.R. § 2.802 (1978), allow "any person" to request the institution of a proceeding to revoke the licenses of nuclear fuel cycle licensees or to issue, amend, or rescind any regulations. Plaintiff has in fact availed herself of these administrative remedies by filing the petition for emergency and remedial action with the NRC that preceded this lawsuit, and the NRC is actively engaged in evaluating the petition. Under these circumstances, it is apparent that plaintiff has not exhausted the prescribed administrative remedy.

None of the exceptions to the exhaustion requirement that would excuse plaintiff's failure to exhaust are applicable to the facts of this case. Had plaintiff brought this suit to challenge the constitutionality of the basic statutes, the Atomic Energy Act of 1954² and the Energy Reorganization Act of 1974,³ which authorize the NRC to regulate the development of nuclear energy, exhaustion might not be necessary. See 3 K. Davis, Administrative Law Treatise § 20.04 (1958). Instead, plaintiff relies upon the provisions of those acts to establish the statutory standard that she claims defendants have violated. Had the case presented a pure question of law, as plaintiff asserts it does, it would be cognizable in this court even in the absence of exhaustion, because the fact-finding expertise of the agency would be unnecessary for the resolution of the claim. See K. Davis, Administrative Law of the Seventies § 20.01 (1976). The NRC's expertise, however, is necessary in this case to determine whether or not the alleged hazards of disease or death are created by the operation of the nuclear fuel cycle. Were the administrative remedy under consideration futile or inadequate, then the court could excuse plaintiff's failure to exhaust. See, e. g., Spanish International Broadcasting Co. v. Federal Communications Commission, 128 U.S.App. D.C. 93, 104, 385 F.2d 615, 626 (1967); Nader v. Ray, supra, 363 F.Supp. at 954. Pursuant to procedures established by the NRC, however, persons such as plaintiff may request the NRC to revoke the licenses of nuclear power producers, or to alter the agency's own regulations, and the NRC is expressly empowered to grant such relief. Since no exception to the exhaustion requirement is applicable in this case, plaintiff's failure to exhaust bars relief in this court.

Second, even if plaintiff had exhausted the available administrative remedies, this court could not assume jurisdiction to review the action of the NRC, because that jurisdiction is vested exclusively in the United States courts of appeals. See Nader v. Ray, supra, 363 F.Supp. at 954; Wright, Miller, Cooper & Gressman, 16 Federal Practice and Procedure: Jurisdiction § 3943 (1977). Pursuant to 42 U.S.C. § 2239(b), final orders entered in either NRC license revocation or rulemaking proceedings are subject to judicial review in the manner prescribed in 28 U.S.C. § 2342(4) and the Administrative Procedure Act. The latter provision states that the form of proceeding for review of administrative action is "the special statutory review proceeding relevant to the subject matter in a court specified by statute . . .." 5 U.S.C. § 703. This is an implicit reference to 28 U.S.C. § 2342(4), which provides that the court of appeals "has exclusive jurisdiction to enjoin, set aside, suspend (in whole or part), or to determine the validity of" orders of the NRC made reviewable by 42 U.S.C. § 2239. The only judicial forum provided by statute that is available to plaintiff is, therefore, the court of appeals. See, e. g., Gage v. United States Atomic Energy Commission, 156 U.S.App.D.C. 231, 235, 479 F.2d 1214, 1218 (1973); Paskavitch v. United States Nuclear Regulatory Commission, 458 F.Supp. 216, 217 (D.Conn.1978); Concerned Citizens of Rhode Island v. Nuclear Regulatory Commission, supra, 430 F.Supp. at 630; Izaak Walton League of America v. Schlesinger, 337 F.Supp. 287, 290 (D.D.C.1971). But see Drake v. Detroit Edison Co., 443 F.Supp. 833 (W.D.Mich.1978). This exclusive statutory review mechanism also prevents plaintiff from following other avenues of so-called "nonstatutory review" of administrative action in this court by invoking general jurisdictional statutes such as 28 U.S.C. § 1331 or § 1361. Nonstatutory review is available only in the absence of a specific statute authorizing review in a particular court. "Where Congress has provided an adequate procedure to obtain judicial review of agency action, that statutory provision is the exclusive means of obtaining judicial review in those situations to which it applies." Memphis Trust Co. v. Board of Governors of the Federal Reserve System, 584 F.2d 921, 925 (6th Cir. 1978) (citing Whitney National Bank v. Bank of New Orleans & Trust Co., 379 U.S. 411, 419-23, 85 S.Ct. 551, 13 L.Ed.2d 386 (1965)); see, e. g., Nader v. Volpe, 151 U.S.App.D.C. 90, 466 F.2d 261 (1972); Sun Enterprises, Ltd. v. Train, 394 F.Supp. 211 (S.D.N.Y.1975). See generally Note, Jurisdiction to Review Federal Administrative Action: District Court or Court of Appeals, 88 Harv.L.Rev. 980 (1975). Jurisdiction in this court cannot be predicated upon any theory of judicial review of agency action.

Finally, plaintiff cannot circumvent the strict jurisdictional limits on judicial review of NRC action by arguing that her complaint is not a petition for review of agency action, but rather is a proceeding seeking initial relief in the courts. Even if this court did have subject matter jurisdiction over plaintiff's claim,⁴ the doctrine of primary jurisdiction would require that the court stay its hand until the "agency charged by Congress with the responsibility of regulating the subject matter has had an opportunity to apply its expertise to the question at issue . . .." Paskavitch v. United States Nuclear Regulatory Commission, supra, 458 F.Supp. at 217; see, e. g., Port of Boston Marine Terminal Ass'n v. Rederiaktiebolaget Transatlantic, 400 U.S. 62, 91 S.Ct. 203, 27 L.Ed.2d 203 (1970); Southern Railway Co. v. Combs, 484 F.2d 145 (6th Cir. 1973). Application of this doctrine is particularly appropriate here. Determination of a highly complex and controversial⁵ question of nuclear science, the effect on human health of the low level radiation exposure allegedly produced by the ordinary operation of the nuclear fuel cycle, would be crucial to an adjudication in this case. Certainly, expertise in the field of nuclear science would facilitate such a determination. The NRC possesses this expertise; the court does not. See, e. g., Paskavitch v. United States Regulatory Commission, supra, 458 F.Supp. at 217; Nader v. Ray, supra, 363 F.Supp. at 953. Furthermore, this case implicates fundamental questions of national policy...