Nat'l Whistleblower Ctr. v. Nuclear Regulatory Cmm'n., 99-1002
| Decision Date | 22 November 1999 |
| Docket Number | No. 99-1002,99-1002 |
| Parties | (D.C. Cir. 1999) National Whistleblower Center, Petitioner v. Nuclear Regulatory Commission and United States of America, Respondents Baltimore Gas and Electric Company, Intervenor Consolidated with 99-1043 Filed |
| Court | U.S. Court of Appeals — District of Columbia Circuit |
Before: Edwards, Chief Judge, and Williams, Circuit Judge.
O R D E R
It is ORDERED, by the Court, on its own motion, that the majority opinion and the judgment filed herein on November 12, 1999, be, and the same hereby are, vacated.
A future order will schedule further briefing and rehearing after a member of the Court is randomly selected to replace former Circuit Judge Wald as the third member of the panel.
I concur in the Order vacating the opinion and judgment issued on November 12, 1999, because, in retrospect, I fear that the original (now vacated) majority opinion fails to address some critical issues in this case. These issues were not the focus of the arguments during the first hearing before the court, so it is unsurprising that they were lost in our haste to issue an opinion before our colleague, Judge Wald, departed from the court. However, in my view, the issues are too important to ignore once uncovered; thus, I feel that this case must be reheard.
The now vacated majority opinion is founded on the view that petitioners were prejudiced by the Commission's abrogation of a substantive rule. After considering this matter further, I find that there is good reason to believe that we were mistaken in assuming that the Commission acted pursuant to a substantive, as opposed to a procedural, rule.
On August 5, 1998, the Commission published a statement of Policy on Conduct of Adjudicatory Proceedings ("Policy") in which it stated that licensing boards should grant extensions of time "only when warranted by unavoidable and extreme circumstances." 63 Fed. Reg. 41,872, 41,874 (Aug. 5, 1998). The Commission subsequently invoked this new rule in an order referring a petition filed by the National Whistleblower Center ("Center") to the Atomic Safety and Licensing Board, stating that extensions of time should only be granted if the petitioner can demonstrate "unavoidable and extreme circumstances." Order Referring Petition for Intervention and Request for Hearing to Atomic Safety and Licensing Board Panel, CLI 98-14, reprinted in Joint Appendix ("J.A.") 23, 28 (Aug. 19, 1998).
There can be no doubt that the Commission's August 5, 1998, Policy adopted a new standard to govern requests for extensions of time in proceedings of the sort here at issue. It also seems clear that the new standard was intended to modify the standards previously enunciated in 10 C.F.R. 2.711(a) and 2.714(b)(1). And it is undisputed that the Center had notice of the new standard for granting...
To continue reading
Request your trial
-
Nat'l Whistleblower Center v. Nuclear Reg. Comm'n
...Cir. Nov. 12, 1999). Following a sua sponte inquiry by the court, however, this judgment was vacated, see National Whistleblower Center v. NRC, 196 F.3d 1271 (D.C. Cir. 1999), and the case was reargued before the court on March 2, 2000. Upon reconsideration, we deny the Center's petition fo......