ELR Citation: ELR 20321
No(s). s. 83-703, -1031 (U.S. Mar 20, 1985)

The Supreme Court holds that the courts of appeals have initial subject matter jurisdiction to review a Nuclear Regulatory Commission (NRC) denial of a citizen petition. Atomic Energy Act §189 makes orders issued in a proceeding for the granting, suspending, revoking, or amending of a license reviewable; the Hobbs Act gives the courts of appeals initial jurisdiction over §189 reviews. The Court holds that the denial of a citizen petition qualifies as a §189 final order. The statutory language is ambiguous on this point; it could be read to allow court of appeals review only in cases where NRC held a hearing on the matter. The fragmentary legislative history of §189 suggests Congress intended to define the scope of initial review according to subject matter and not according to whether a hearing was held. Congress' choice of Hobbs Act review, which contemplates court of appeals review of actions where no hearing has taken place, suggests the same. If §189 were read to give the courts of appeals jurisdiction only when a hearing has occurred or could have occurred, there would be irrational bifurcation of review, with duplication of review in the district courts and courts of appeals in some cases, and even bifurcation of review of orders in the same proceeding.

Justice Stevens, dissenting, declares that the majority's opinion is inconsistent with the plain meaning of the statute and NRC's regulations. Further, he suggests that, as a decision not to enforce, NRC's denials of citizen petitions may be unreviewable under the doctrine of Heclker v. Chaney, 15 ELR 20335.

[The opinion of the court of appeals appears at 14 ELR 20012.]

Counsel for Petitioners
Charles A. Rothfield, Ass't to the Solicitor General
Department of Justice, Washington DC 20530
(202) 633-2201

Holly N. Lindeman
Lowenstein, Newman, Reis & Axelrad, P.C.
1025 Connecticut Ave. NW, Washington DC 20036
(202) 862-8400

Counsel for Respondent
Martin H. Hodder
1131 NE 86th St., Miami FL 33138
(305) 751-8706