ML20044G464
| ML20044G464 | |
| Person / Time | |
|---|---|
| Issue date: | 05/21/1993 |
| From: | Cordes J NRC OFFICE OF THE GENERAL COUNSEL (OGC) |
| To: | |
| References | |
| SECY-93-145, NUDOCS 9306030144 | |
| Download: ML20044G464 (12) | |
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ADJUDICATORY ISSUE May 21, 1993 (lgf0fm8 tion)
SECY-93-145 FOR:
The Commission l
FROM:
John F. Cordes, Jr.
Solicitor
SUBJECT:
LITIGATION REPORT - 1993 - 06 Allied-Sianal. Inc. v. NRC, Nos. 92-1374, 92-1390 & 93-1084 (D.C.
Cir., decided April 30, 1993)
These are follow-up cases to the annual fee cases recently decided by the D.C.
Circuit.
The recently-decided cases addressed the agency's annual fee rule for fiscal year 1991, upheld it in some respects, and remanded it in others.
See Allied-Sianal. Inc. v.
NRC, No. 91-1407 (D.C. Cir., March 16, 1993), discussed in Litigation Report 1993-03, SECY-93-070.
The current cases, attacking the NRC's fiscal year 1992 annual' fee rule, were held in abeyance pending the Allied-Sianal decision.-
Pursuant to our request, the court of appeals has now disposed of the FY 1992 cases in the same way as it disposed of the FY 1991 cases.
Thus, it issued an order remanding the FY 1992 cases to the NRC to consider whither licensees' inability to pass through costs justifies special annual fee treatment and whether the NRC's method for apportioning low-level radioactive waste disposal costs was reassnable.
The court also ordered the Commission to grant an exemption to Combustion Engineering for fees attributable to " double-licensing" its facilities.
The court denied the petitions for review "as to any remaining claims."
We had already taken account of this anticipated ruling.
The NRC is currently making arrangements for payment of CE's 1991 and NOTE:
TO BE MADE PUBLICLY-AVAILABLE IN 10 WORKING DAYS FROM THE DATE OF THIS PAPER
- 25093a, h wh0:5o W C.X A gfD9 r g
2 1992 exemption claims.
The agency is also considering the FY 1991 and FY 1992 remand issues in connection with its proposed annual fee rule for FY 1993.
Attachment:
D.C.
Circuit Order
Contact:
L. Michael Rafky 504-1974 Kelly v.
Stello, No. 92-7662 (5th Cir., decided April 19, 1993)
In an unpublished decision the Fifth Circuit has affirmed the district court judgment dismissing a damages. suit against several current and former NRC officials.
See Litigation Report 1992-20, SECY-92-357.
The court of appeals agreed with the district court that the applicable Texas statute of limitations had expired prior to the filing of plaintiff's suit.
Attachment:
5th Circuit Decision
Contact:
Susan Uttal 504-1582 International Brotherhood of Electrical Workers v.
Southern Nuclear Operatina Co.,
Inc., Civ. No. CV 93T-397-S (M.D._A1.,
suit withdrawn May 4, 1993)
As explained in Litigation Report 1993-05, SECY-93-101, this suit by a labor union attacked an alleged NRC requirement that nuclear power plant workers report to their employer all arrests of whatever nature.
In actuality there is no such NRC requirement.
While we were researching a planned motion to dismiss this suit, the union decided to withdraw it, apparently after obtaining clarification on the arrest question from the local utility.
Attachment:
Decision
Contact:
Marjorie S. Nordlinger
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504-1616 DISTRIBUTION:
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ATTACHMENT -
Allied-Sicnal. Inc. v. NRC, Nos. 92-1374,-92-1390
& 93-1084 (D.C. Cir., decided April 30, 1993)
L
M Knitch $tates @ourt of hpeals FOR THE Di$TRICT Of COLUMBIA CIRCUIT September Term,19 j
92 No.
' 2 -13 n Allied-Signal, Inc.,
Petitioner s,.ms aidles COUIL UI App 6815 For the District of Columbia Circuit v.
Nuclear Regulatory Commission; and United States of America, RON GARVIN CLERK Respondents 92-1390 Combustion Engineering, Inc.,
Petitioner v.
Nuclear Regulatory Commission; and United States of America, Respondents And consolidated case No. 93-1094 i
BEFORE:
Edwards, Ruth B. Ginsburg and Silberman, Circuit Judges P
ORDER Upon consideration of the consent motion for consolidation and summary.' disposition of cases held in abeyance, it'is-m e
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Knitch $tates Gottri of pppeals FOR THE DISTRICT Of COLUMBIA CIRCUIT September Term,19 92 No.
92-1374 ORDERED that the above-captioned cases be consolidated.
It is FURTHER ORDERED that these cases be remanded "to the Commission for a reasoned and coherent treatment of: (1) licensees' claime lor special treatment on the basis of inability to pass the burden of the fees through to customers and (2) the method of apportioning generic [ low level radioactive waste) disposal costs among materials licensees.
In addition, we direct the Commission to grant an exemption to [ petitioner) Combustion
[ Engineering, Inc.) for the generic fees attributable to the double-licensing of its [ low enriched uranium) operation."
Allied Sicnal. Inc.
v.
NRC, No. 91-1407, slip op. at 14 (D.C.
Cir. March 16, 1993).
It is FURTHER ORDERED that, pursuant to the parties' agreement, the petitions for review are denied as to any remaining claims.
The Clerk is directed to issue a certified copy of this order to respondents in lieu of formal mandate.
Per curiam do
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ATTACHMENT -
Kelly v.'Stello, No. 92-7662 (5th Cir.,
decided April 19, 1993) i f
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c IN THE UNITED STATES COURT OF APPEALS U.S. COURT OF APPEALS FOR THE FIFTH CIRCUIT FILED
-'APR 191993 No. 92-7662 Summary Calendar R)CKARD E. WINDHORST,)R.
J CLERK JAMES A. KELLY,
)
Plaintiff-Appellant, versus j
Defendants-Appellees.-
I Appeal from the United States District Court for the Southern District of Texas l
(CA G91-464)
Before REAVLEY, DAVIS and DEMOSS, Circuit Judges.
PER.CURIAM:'
On December 16, 1991, James A. F. Kelly, a former employee _of the United States Nuclear Regulatory. Commission (NRC), filed this lawsuit against six present or former employees of NRC, alleging violations of his First and Fif th Amendment. rights, def amation, and intentional infliction of emotional distress.
He alleged retaliation for his testimony before a congressional committee in
' Local Rule 47.5 provides:
"The publication.of opinions that have no precedential value and merely decide particular cases-on the basis of well-settled principles of law. imposes needless expense. on - the public and burdens. on the legal profession."
Pursuant to that Rule, the Court has determined that this opinion should not be published.
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l 1987 concerning drug and alcohol abuse at nuclear plants.
The district court dismissed Kelly's Bivens federal and Texas state-law claims on the ground that the claims were barred by the applicable statutes of limitations.
The parties agree on the applicable periods of limitations:-
two years for Kelly's federal claims, see Lavellee v.
Listi, 611 F.2d 1129, 1130 (5th Cir.
1980)
(state statue of limitations governs the timeliness of S 1983 claims); two years for the intentional infliction of emotional distress claim; and one year for the defamation claims.
The parties, however, dispute the date Kelly's claims accrued.
The determination of when a federal cause of action accrues is a matter of federal, not state, law.
Id.
But state law determines when a state cause of action accrues.
See Meyers v. Moody, 693 F.2d 1196, 1206 (5th Cir. 1982), cert. denied, 464 U.S.
920, 104 S.Ct. 287 (1983).
We agree with the district court's conclusion that Kelly's federal claim is time barred.
See Loncoria v.
Bay City, 779 F.2d 1136, 1139 (5th Cir. 1986) (limitations period for a S 1983 action begins to run when the plaintiff either Js or should be aware of botn the injury and its connection with the alleged acts of the defendant).
Kelly's complaint sets out his knowledge prior to l
December 16,1989 (two years before commencement of this action) of critical facts that he had been injured and that the defendants were involved.
It is of no consequence that Kelly later learned of more details of the extent of wrong or injury, or that he later learned of the nature of the legal claims he might pursue.
2 k
4 We further hold that Kelly's state-law claims are barred by the applicable Texas statutes of limitations.
These claims are barred regardless of whether we apply the time-of-the-injury rule or the discovery rule in determining the date of accrual.
See Robinson v. Weaver, 550 S.W.2d 18, 19 (Tex. 1977) (As a general rule, personal injury causes of action accrue "when the wrongful act effects an injury."); Salazar v.
Amiaos Del Valle, Inc., 754 Corpus Christi 1988, no writ) ("A S.W.2d 410, 412 (Tex. App.
cause of action for slander accrues when the injury occurs and the words are spoken
"); Kellev v.
Rinkle, 532 S.W.2d 947, 949 (Tex. 1976) (holding that the discovery rule is applicable in some
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def amation cases); see also Timberlake v. A.H. Robins Co., 727 F.2d 1363,1365 (5th Cir.1984) (applying uxas law) (rejecting argument that the " statutory period should be tolled until the plaintiff learns that the defendant's conduct may have been wrongful").
Finally, the allegations of the complaint would not warrant the application of the equitable tolling doctrine or the equitable estoppel doctrine, for the reason that actions of the defendants did not induce Kelly to forego claims against them.
See Conaway v.
I Control Data Corp.,
955 F.2d 358, 362 (5th Cir. ), cert, denied,,_
z U. S.,_, 113 S.Ct. 186 (1992).
AFFIRMED.
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ATTACHMENT -
International Brotherhood of Electrical Workers v.
Southern Nuclear Operatina Co.,
Inc., Civ. No. CV 93T-397-S (M.D. Al.,
suit withdrawn May 4, 1993) i s
P L
i IN THE UNITED STATES DISTRICT COURT FOR THE MIDDLE DISTRICT OF ALABAMA SEVENTH DIVISION 1
INTERNATIONAL DROTHERHOOD
)
OF ELECTRICAL WORKERS,
)
)
PLAINTIFF,
)
CIVIL ACTION NO.
CV 93T-397-S
)
VS
)
)
SOUTHERN NUCLEAR OPERATING
)
COMPANY, INC. and
)
UNITED STATES NUCLEAR
)
REGULATORY COMMISSION,
)
)
DEFENDANT.
)
NOTICE OF DISMISSAL COMES NOW the Plaintiff, International Brotherhood of Electrical Workers, by and through their undersigned attorney, and files herewith its Notice of Dismissal in accordance with the Federal Rules of Civil Procedure 41(a)1.
DATED this 4th day of May, 1993.
LEXfsE. DO LING
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Dowlirg Att'orney at w
Post Office Bo 1193 Dothan, Alabama 36302 (205) 793-3377 Counsel for Plaintiffs 1
.1
. MAY-10-1993 10:17 FROM BALCH & BINGHRM TO~
713015043200 P.03
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9 CERTIFICATE OF SERVICE I hereby certify that I have served a copy of the foregoing upon all parties of record, by placing a copy of sarie in the United States Mail, postage prepaid and properly addressed on this the 4th day of May, 1993, to the following:
Mr. Richard carrigan Balch & Bingham Post Office Box 306 Birmingham, Alabama 36201 United States Nuclear Regulatory Commission Region II 101 Marietta Street, N.W.
Atlanta, Georgia 30323 The Honorable James Wilson United States Attorney State of Alabama Post Office Box 197 Montgomery, Alabama 36101-0197 The Honorable Janet Reno, Attorney General Executive Office of U.
S. Attorney-U.
S. Department of Justice Patrick Henry Boulevard 6th & D Streets, N.W.
Washington, D.
C.
20530
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