ELR Citation: ELR 20020
No(s). 85-7003 (9th Cir. Aug 21, 1987)

The court rules that a person seeking review under 28 U.S.C. §2344 of a decision by the Nuclear Regulatory Commission (NRC) must have been a party to the agency proceedings. Petitioners challenge a November 21, 1984, NRC order allowing restart of part of the San Onofre, California, nuclear reactor that had been shut down because of concerns about its ability to withstand earthquakes. Petitioners also seek review of a December 10, 1984, order denying their request for an immediate hearing on their challenge to the restart order. On February 19, 1985, NRC entered an order denying petitioners' request for a hearing and a stay of the restart. The court rules that in order to obtain review of an NRC order by the court of appeals, the person seeking review must have been an actual party before the agency. Under 28 U.S.C. §2344, any party aggrieved by a final order of NRC may file a petition for review. Every circuit that has considered this language has concluded that it restricts review to petitions brought by persons who were parties below. Moreover, to limit the court's jurisdiction in this way precludes direct appellate court review without a record that reflects the factfinder's consideration of the position asserted by the party seeking review. The court holds that it has no jurisdiction to consider the validity of the November 21 order, because petitioners in this case were not parties at the agency level.

The court next holds that it does not have jurisdiction to review the order of December 10. Petitioners were parties to the dispute before the agency that resulted in the December 10 order, because petitioners had properly requested a hearing pursuant to NRC's own regulations, and the order pertained to that hearing request. However, in order to be reviewable under 28 U.S.C. §2342 and §2344, the agency order must have been final. The court holds that NRC's December 10 order, which only denied petitioner's request for an immediate hearing and did not address whether they would receive an unexpedited hearing, was not final. Finally, the court holds that it has no jurisdiction to review the February 19 order because petitioners did not file a petition for review within 60 days of the order's entry, as required by 28 U.S.C. §2344.

Counsel for Petitioners
Julie E. McDonald
Sierra Club Legal Defense Fund
2044 Fillmore St., San Francisco CA 94115
(415) 567-6100

Counsel for Respondents
Herzel H.E. Plaine, E. Leo Slaggie, Carolyn Jourdan
Nuclear Regulatory Commission
1717 H St. NW, Washington DC 20006
(202) 492-7000

Before Sneed & Hupp, JJ.