ML25245A245
| ML25245A245 | |
| Person / Time | |
|---|---|
| Site: | Consolidated Interim Storage Facility |
| Issue date: | 09/02/2025 |
| From: | Andrew Averbach NRC/OGC |
| To: | Cayce L US Federal Judiciary, Court of Appeals, 5th Circuit |
| References | |
| 23-60377, 118 | |
| Download: ML25245A245 (1) | |
Text
UNITED STATES NUCLEAR REGULATORY COMMISSION WASHINGTON, D.C. 20555-0001 September 2, 2025 BY ELECTRONIC FILING Lyle W. Cayce Clerk of Court United States Court of Appeals for the Fifth Circuit 600 S. Maestri Place New Orleans, Louisiana 70130 Re:
Fasken Land & Minerals, Ltd. v. U.S. Nuclear Regulatory Commission, No. 23-60377
Dear Mr. Cayce:
In response to the question the Court posed in its letter of August 20, 2025, Federal Respondents respectfully submit that this Court should dismiss the Petition for Review in this case. This course of action is the same one we recommended in our letter of August 29, 2025, concerning another case pending before this Court, Texas
- v. Nuclear Regulatory Commission, No. 21-60743, which is in a procedural posture that is identical to this one.
In Nuclear Regulatory Commission v. Texas, 145 S. Ct. 1762 (2025), the Supreme Court ruled that the petitioners in that case (which include the Petitioners here) are not parties aggrieved within the meaning of the Hobbs Act, 28 U.S.C. § 2344, and that, as a result, they are not entitled to obtain judicial review of the license issued in that case to store spent nuclear fuel. Id. at 1780-81. The Supreme Court reversed this Courts judgment and remanded the case with instructions to dismiss or deny the petitions for review. Id. at 1781. As in Texas, any action in this case other than dismissal or denial would contravene the Supreme Courts instructions.
Dismissal and denial yield the same practical resultrecall of this Courts mandate and revocation of the Courts direction that the license issued to Holtec International be vacated. Fasken Land & Minerals, Ltd. v. Nuclear Regulatory Commission, No. 23-60377, 2024 WL 3175460 at *1 (5th Cir. Mar. 27, 2024).
Whichever of the two available options the Court chooses, the license will be reinstated.
Case: 23-60377 Document: 118 Page: 1 Date Filed: 09/02/2025
L. Cayce Dismissal of the Petition for Review is the appropriate course of action here. This Court has consistently treated the Hobbs Acts requirements as jurisdictional and requiring dismissal upon failure to meet them. See Huawei Techs. USA, Inc. v.
F.C.C., 2 F.4th 421, 435 (5th Cir. 2021) (dismissing claims related to an initial designation that was not a final order); Texas v. United States, 749 F.2d 1144, 1146 (5th Cir. 1985) (same as to petition not filed within 60-days of final order, as required by section 2344). The panel here is bound to follow that prior precedent unless an intervening Supreme Court decision has unambiguously rejected it. See Tech. Automation Servs. Corp. v. Liberty Surplus Ins. Corp., 673 F.3d 399, 405 (5th Cir. 2012) ([F]or a Supreme Court decision to change our Circuit's law, it must be more than merely illuminating with respect to the case before [the court] and must unequivocally overrule prior precedent.).
Nothing in the Supreme Courts decision in Nuclear Regulatory Commission v.
Texas rejects the proposition that the Hobbs Acts parties aggrieved requirement is jurisdictional. To the contrary, both the majority and dissenting opinions contain language suggesting that the issue is jurisdictional and that this Court lacks authority under the Hobbs Act to consider the petitions for review. See 145 S. Ct at 673 (Hobbs Act limits jurisdiction to a party aggrieved...); id. at 702 (dissenting opinion) (characterizing the decision as a conclusion that the Supreme Court lack[ed] jurisdiction over the merits of Texass and Faskens claim, and determining that the majoritys discussion of the merits is dicta because of the Courts lack of jurisdiction); id. at 706 (dissenting opinion) (characterizing Federal Respondents Hobbs Act arguments as arising under jurisdictional grounds); cf.
Texas v. Nuclear Regulatory Commission, 95 F.4th 935, 936 (5th Cir. 2024) (Jones, J., concurring in denial of rehearing (referring to parties aggrieved as one of the grounds of jurisdiction)).
When confronted with petitions for review of the very same license at issue in the Texas litigation, the Tenth and D.C. Circuits both decided to dismiss, rather than deny, petitions for review brought by entities who were not parties aggrieved. See New Mexico ex rel Balderas v. NRC, 59 F.4th 1112 (10th Cir. 2023) (dismissing, for lack of jurisdiction, petition brought under Hobbs Act by state that had not sought to intervene in adjudicatory proceedings); Dont Waste Michigan v. NRC, No. 21-1055, 2023 WL 395030 (Jan. 25, 2023) (unpublished) (denying petitions for review brought under Hobbs Act to challenge the Commissions denial of requests to intervene in agency licensing proceedings, but dismissing petitions for review brought by same intervenors who sought to challenge the license directly); id. at *2-
- 3 (We therefore deny Beyond Nuclear's petition for review of the intervention Case: 23-60377 Document: 118 Page: 2 Date Filed: 09/02/2025
L. Cayce decision.... We lack jurisdiction to consider Beyond Nuclear's petition for review of the decision to issue the license.).1 In recent years, the Supreme Court has determined that various requirements in judicial review statutes other than the Hobbs Act function as mandatory claim-processing rules rather than jurisdictional limitations on a courts power to adjudicate a matter. See, e.g., Riley v. Bondi, 145 S. Ct. 2190 (2025) (holding nonjurisdictional a requirement under the Immigration and Nationality Act, 8 U.S.C. § 1252(b)(1), that petition for review be filed within 30 days of final order of removal by Board of Immigration Appeals); Harrow v. Department of Defense, 601 U.S. 480 (2024) (same for requirement under the Civil Service Reform Act of 1978, 5 U.S.C. § 7703(b)(1), that petition for review be filed within 60 days of notice of final order by Merit Systems Protection Board). None of those decisions concerned the Hobbs Act, let alone the party aggrieved requirement at issue here. Those decisions therefore provide no sound basis for this Court to depart from the circuit precedent described above. Cf. Wooten v. McDonald Transit Assocs., Inc., 788 F.3d 490, 497 (5th Cir. 2015) (holding that the panel was bound to follow circuit precedent about retaliation claims under the ADEA even though a later Supreme Court decision about retaliation claims under Title VII casts doubt on [the circuit decisions] reasoning).
For all the foregoing reasons, the Petition for Review should be dismissed.
Respectfully,
/s/ Andrew P. Averbach Solicitor Counsel of Record for U.S. Nuclear Regulatory Commission 1 In other cases arising under the Hobbs Act, courts have likewise treated the party aggrieved requirement as jurisdictional and mandating dismissal. See Matson Navigation Company, Inc. v. U.S. Department of Transportation, 77 F.4th 1151, 1157 (D.C. Cir. 2023) (Matson was not a party to the MARAD proceedings and therefore we lack jurisdiction over Matson's Hobbs Act petitions.); Natl Assn Of State Utility Consumer Advocates v. FCC, 457 F.3d 1238, 1249-50 (11th Cir.),
opinion modified on denial of rehg, 468 F.3d 1272 (11th Cir. 2006) (dismissing petition brought by utility board); Erie-Niagara Rail Steering Comm. v. Surface Transp. Bd., 167 F.3d 111, 113 (2d Cir. 1999) (granting motion to dismiss); In re Chicago, Milwaukee, St. Paul & Pac. R. Co., 799 F.2d 317, 334 (7th Cir. 1986)
(dismissing for lack of jurisdiction).
Case: 23-60377 Document: 118 Page: 3 Date Filed: 09/02/2025