ML19170A086
| ML19170A086 | |
| Person / Time | |
|---|---|
| Site: | Consolidated Interim Storage Facility, HI-STORE |
| Issue date: | 06/13/2019 |
| From: | US Federal Judiciary, Court of Appeals, for the District of Columbia Circuit |
| To: | NRC/OCM |
| References | |
| 1792613, 18-1340 | |
| Download: ML19170A086 (2) | |
Text
United States Court of Appeals FOR THE DISTRICT OF COLUMBIA CIRCUIT No. 18-1340 September Term, 2018 NRC-72-1050 NRC-72-1051 Filed On: June 13, 2019 Beyond Nuclear, Inc.,
Petitioner v.
U.S. Nuclear Regulatory Commission and United States of America, Respondents Holtec International and Interim Storage Partners LLC, Intervenors BEFORE:
Pillard, Katsas, and Rao, Circuit Judges O R D E R Upon consideration of the motion to dismiss, the response thereto, the reply, and the Rule 28(j) letters; and the motion to hold in abeyance, the response thereto, and the reply, it is ORDERED that the motion to dismiss be granted. This court lacks jurisdiction to review the Nuclear Regulatory Commissions October 29, 2018 order denying without prejudice petitioners motion to dismiss, and referring petitioners petitions to intervene and hearing requests to the Atomic Safety and Licensing Board, because the order is not a final order of the Commission. See 28 U.S.C. § 2342(4) (granting courts of appeals exclusive jurisdiction over all final orders of the [Nuclear Regulatory Commission], including final orders in licensing proceedings). Because the order merely directs petitioner to raise its arguments within ongoing administrative proceedings, it does not mark the consummation of the agencys decisionmaking process, Bennett v. Spear, 520 U.S. 154, 178 (1997), and does not impose[] an obligation, den[y] a right, or fix[] some legal relationship, Blue Ridge Envtl. Def. League
- v. Nuclear Regulatory Commn, 668 F.3d 747, 753 (D.C. Cir. 2012) (internal quotation USCA Case #18-1340 Document #1792613 Filed: 06/13/2019 Page 1 of 2
United States Court of Appeals FOR THE DISTRICT OF COLUMBIA CIRCUIT No. 18-1340 September Term, 2018 marks and citation omitted). To the extent petitioner argues that the order is final because it requires petitioner to participate in administrative proceedings that it alleges are invalid, [i]t is firmly established that agency action is not final merely because it has the effect of requiring a party to participate in an agency proceeding. Aluminum Co. of America v. United States, 790 F.2d 938, 941 (D.C. Cir. 1986).
Finally, because the administrative proceedings are ongoing, and petitioners acknowledge that those proceedings may resolve the dispute underlying this petition, the petition is not ripe for judicial review. See Am. Petroleum Inst. v. EPA, 683 F.3d 382, 386 (D.C. Cir. 2012) (In the context of agency decision making, letting the administrative process run its course before binding parties to a judicial decision prevents courts from entangling themselves in abstract disagreements over administrative policies, and protects the agencies from judicial interference in an ongoing decision-making process.) (internal quotation marks, citation, and alterations omitted). It is FURTHER ORDERED that the motion to hold in abeyance be denied.
Pursuant to D.C. Circuit Rule 36, this disposition will not be published. The Clerk is directed to withhold issuance of the mandate herein until seven days after resolution of any timely petition for rehearing or petition for rehearing en banc. See Fed. R. App.
P. 41(b); D.C. Cir. Rule 41.
Per Curiam Page 2 USCA Case #18-1340 Document #1792613 Filed: 06/13/2019 Page 2 of 2