Public Citizen v. Nuclear Regulatory Com'n, 87-1050

• Decision Date: 06 May 1988
• Docket Number: No. 87-1050,87-1050
• Citation: 845 F.2d 1105
• Parties: , 269 U.S.App.D.C. 360 PUBLIC CITIZEN, et al., Petitioners, v. NUCLEAR REGULATORY COMMISSION and United States of America, Respondents, Nuclear Utility Management and Resources Committee, Intervenor.
• Court: U.S. Court of Appeals — District of Columbia Circuit

Page 1105

845 F.2d 1105

28 ERC 1355, 269 U.S.App.D.C. 360

PUBLIC CITIZEN, et al., Petitioners, v. NUCLEAR REGULATORY COMMISSION and United States of America Respondents Nuclear Utility Management and Resources Committee, Intervenor.

No. 87-1050.

United States Court of Appeals District of Columbia Circuit.

Argued Nov. 19, 1987.

Decided May 6, 1988.

Eric R. Glitzenstein, Washington, D.C. with whom, David C. Vladeck and Alan B. Morrison, Washington, D.C. were on the brief for petitioners.

Karla D. Smith, Atty., Nuclear Regulatory Com'n, with whom, Peter R. Steenland, Jr., Chief, Appellate Section, U.S. Dept. of Justice, William C. Parker, Gen. Counsel, Nuclear Regulatory Com'n, William H. Briggs, Jr., Sol., Nuclear Regulatory Com'n, E. Leo Slaggie, Deputy Sol., Nuclear Regulatory Com'n and Alice Thurston, Attorney, U.S. Dept. of Justice, were on the brief for respondents.

Milton Eisenberg, with whom, Marcus A. Rowden, was on the brief for intervenor, Nuclear Utility Management and Resources Committee. John T. Boese, Washington, D.C. also entered an appearance for intervenor, Nuclear Utility Management and Resources Committee.

Before MIKVA and WILLIAMS, Circuit Judges, and GORDON, ^* District Judge.

Opinion for the Court filed by Circuit Judge WILLIAMS.

WILLIAMS, Circuit Judge:

In this action Public Citizen and five other public interest organizations challenge the Nuclear Regulatory Commission's implementation of Sec. 306 of the Nuclear Waste Policy Act of 1982 ("Waste Act"), 42 U.S.C. Sec. 10226 (1982). Petitioners contend that Sec. 306 requires the Commission to promulgate binding regulations for the training and qualifications of nuclear power plant personnel. NRC argues that its non-binding Policy Statement of March 20, 1985 satisfied its duties under Sec. 306.

Petitioners filed the action in the district court on November 24, 1986, seeking a writ of mandamus. The district court transferred the case here because of doubts as to where jurisdiction lay. In fact, we conclude, neither court has jurisdiction. Viewed as a direct challenge to the Policy Statement, the petition was too late, under either of the two statutes providing jurisdiction: the 180-day time limit of the Waste Act, 42 U.S.C. Sec. 10139(c) (1982), or the 60-day limit of the Hobbs Act, 28 U.S.C. Sec. 2342(4) (1982).

Petitioners' alternative jurisdictional route is also blocked. Public Citizen wrote to the Commission on April 15, 1986, calling on it to initiate a rulemaking proceeding to comply with Sec. 306. The Commission treated this as a petition for rulemaking and denied it on January 14, 1987. Assuming without deciding that review of that denial could supply any part of what petitioners want--substantive review of the legal adequacy of the Policy Statement--, we find that we still lack jurisdiction over the denial. Petitioners' suit was filed more than seven weeks before January 14, 1987. The cases establish that premature suits for review of agency decisions must be dismissed even when the passage of time supplies the item missing at the time of filing--here, an agency decision. Application of those precedents seems especially appropriate here; it would be pure fiction to treat the 1986 suit as a claim for review of the 1987 decision.

I. TOO LATE

The only bases alleged for subject-matter jurisdiction are the Waste Act and the Hobbs Act. The former affords the courts of appeals jurisdiction to review certain "final decision[s] or action[s] of ... the [Nuclear Regulatory] Commission," as well as the "failure of ... the Commission to make [certain] decision[s], or take [certain] action[s]...." 42 U.S.C. Sec. 10139(a)(1)(A) and (B). An action for review under this section "may be brought not later than the 180th day after the date of the decision or action or failure to act involved...." Id. Sec. 10139(c). It is not altogether clear that this section supplies jurisdiction for any claim under Sec. 306, for it appears in Subchapter I of the Waste Act, and refers to action and inaction under "this part," while Sec. 306 appears in Subchapter III. In General Electric Uranium Management Corp. v. DOE, 764 F.2d 896 (D.C. Cir.1985), however, we found Sec. 10139 to provide jurisdiction to review another claim under Subchapter III, so it may well encompass a Sec. 306 claim. But we need not consider the point. Petitioners' suit was filed well beyond the 180-day limit, and, for the reasons given below, the theory by which they would circumvent that limit (and the Hobbs Act's) is plainly inadequate.

The Hobbs Act gives courts of appeals "exclusive jurisdiction to enjoin, set aside, suspend (in whole or in part), or to determine the validity of ... all final orders" of the NRC made reviewable by 42 U.S.C. Sec. 2239. 28 U.S.C. Sec. 2342(4). (Sec. 2239(a)(1) provides for review of orders entered in "any proceeding for the issuance or modification of rules and regulations dealing with the activities of licensees....") The Hobbs Act further specifies that "[a]ny party aggrieved by the final order may, within 60 days after its entry, file a petition to review the order...." 28 U.S.C. Sec. 2344.

Clearly the difference between 60 and 180 days is irrelevant in this case, for the suit was filed long after expiration of the longer time limit. But petitioners argue that they are not barred by either of these deadlines because they are not challenging the Policy Statement itself, but rather NRC's ongoing failure to promulgate binding regulations pursuant to Sec. 306. Under petitioners' logic, the mere issuance of a policy statement could not start the time clock running.

For support petitioners rely on the line of cases involving an unreasonable delay of agency action. See, e.g., Telecommunications Research & Action Center v. FCC, 750 F.2d 70 (D.C.Cir.1984) ("TRAC "). They characterize the present case as equally involving a lack of agency action. (Indeed, they framed their cause of action as a claim that NRC had violated Sec. 306 by not "establishing instructional requirements for nuclear power plant licensee training programs," and had thus "unlawfully withheld agency action ... in violation of section 10(e) of the Administrative Procedure Act, 5 U.S.C. Sec. 706." Joint Appendix ("J.A.") at 8.) They note that nowhere in TRAC did the court suggest that such actions were subject to any time limit; though true, the omission does not seem of great weight as there is no suggestion in the opinion that anyone raised the point. More persuasively, they argue that "[s]ince 'the very gravamen of the petitioners' complaint' in cases such as this one and TRAC is 'the lack of final' agency action required by law ..., it obviously makes no sense to suggest that such actions can be restricted by the time limits that will adhere once an agency does take final agency action." Reply Brief for Petitioners at 5 (quoting TRAC, 750 F.2d at 75) (emphasis in petitioners' original).

We have some doubts about the argument even as a general matter. Where as here the statute requires agency action within a certain time limit, it is not obvious why the agency's inaction as of that date should not trigger the time limits of any statute on which the challengers rely for jurisdiction. This is especially so where the time limit expressly runs from the challenged "action or failure to act," as is true of 42 U.S.C. Sec. 10139(c). However, since the courts may allow agencies some running room even where there are specific statutory deadlines, see Sierra Club v. Thomas, 828 F.2d 783, 788-90, 794 n. 78 (D.C.Cir.1987), conceivably courts may provide a parallel relaxation for persons complaining of inaction.

Whatever the hypothetical strength of petitioners' theory, it has no application here. The agency has acted. Its Policy Statement is a formal product of the Commission, published in the Federal Register, and expressly stating that it is "responsive to the mandate of the Nuclear Waste Policy Act for regulatory guidance on training and qualifications for nuclear power plant personnel [i.e., Sec. 306]." 50 Fed.Reg. 11,147 (March 20, 1985). Representatives of the nuclear power industry state that it has relied on and sought to comply with the Statement, Brief for Intervenor at 12-13, and petitioners offer no reason to doubt that claim. Petitioners just do not like what the Commission did.

Indeed, Public Citizen has at times used language making clear that its attack is targeted on the sufficiency of the Policy Statement. It stated in its April 15, 1986 letter to the Commission: "We believe that the Commission Policy Statement on Training and Qualification of Nuclear Power Plant Personnel, published March 20, 1985, 50 Fed.Reg. 11147 ... [is] legally insufficient to fulfill the NRC's statutory obligations." J.A. at 23. Moreover, petitioners' appellate briefs explicitly attack the Statement, arguing that in promulgating it "[t]he NRC has disregarded Congress' clear command that it develop training requirements for the nuclear industry to follow, and instead has given the industry virtual carte blanche to create its own training rules." Brief for Petitioners at 1 (emphasis in original).

Our acceptance of petitioners' argument would make a nullity of statutory deadlines. Almost any objection to an agency action can be dressed up as an agency's failure to act. We can imagine situations where an agency's effort to comply was so flimsy or unpublicized that affected parties could not be expected to grasp that it was attempted compliance. But this is not such a case. Accordingly, we find petitioners' challenge to the Policy Statement untimely. ¹

II. TOO SOON

The Commission treated Public Citizen's April 15, 1986 letter as a petition for a rulemaking, published it in the Federal Register, solicited and received public comments, and denied it on January 14, 1987. The denial was presumably reviewable. See American Horse Protection Ass'n v. Lyng, 812 F.2d 1 (D.C.Cir.1987). In the course of...