FLORIDA POWER & LIGHT COMPANY, PETITIONER V. JOETTE LORION, ETC.,
ET AL. AND UNITED STATES NUCLEAR REGULATORY COMMISSION AND UNITED
STATES OF AMERICA, PETITIONERS V. JOETTE LORION, ET AL.

   No. 83-703, and 83-1031

   In the Supreme Court of the United States

   October Term, 1983

   On Writ of Certiorari to the United States Court of Appeals for the
District of Columbia Circuit

   Brief for the Federal Petitioners

            TABLE OF CONTENTS
   Opinions below
   Jurisdiction
   Statutes and regulations involved
   Statement
   Summary of argument
   Argument:
      The courts of appeals have exclusive jurisdiction to
      review NRC orders denying Section 2.206 requests
      A. The language and structure of Section 189 of
          the Atomic Energy Act envision court of appeals
          review of final orders entered in "proceedings"
          where no hearing has been held
          1. Section 189(a) does not require a hearing to
            be held in every proceeding
          2. Review of this case under Section 189(b) is
            consistent with the cases dealing with the
            right to a hearing
      B. The legislative history of Section 189 supports
          court of appeals review in this case
          1. Congress intended the courts of appeals to
            review all NRC orders affecting licensees,
            whether or not a hearing was held
          2. Congress's choice of the Hobbs Act indicates
            an awareness that orders like the one here
            would be reviewed in the courts of appeals
      C. Compelling practical considerations support the
          interpretation of Section 189 rejected by the
          court of appeals
          1. The court of appeals' construction will lead
            to bifurcated or serial review of NRC orders
            in license proceedings
          2. Review under the Hobbs Act better respects
            the different competencies of the district
            courts and the courts of appeals
   Conclusion
   Appendix

                            OPINIONS BELOW

   The opinion of the court of appeals (Pet. App. 1-15) /1/ is
reported at 712 F.2d 1472.  The decision of the Director of the Office
of Nuclear Reactor Regulation (Pet. App. 16-25) is reported at 14
N.R.C. 1078.

                             JURISDICTION

   The judgment of the court of appeals (83-1031 Pet. App. 1a-2a) was
entered on July 26, 1983.  A petition for rehearing was denied on
September 22, 1983 (id. at 3a-5a).  The petition for a writ of
certiorari in No. 83-703 was filed on October 28, 1983, and the
petition in No. 83-1031 was filed on December 21, 1983.  The petitions
were granted and the cases were consolidated on March 26, 1984.  The
jurisdiction of this Court is invokved under 28 U.S.C. 1254(1).

                   STATUTES AND REGULATIONS INVOLVED

   28 U.S.C. 2342(4) is reproduced at Pet. App. 26.  Section 189 of
the Atomic Energy Act of 1954, 42 U.S.C. 2239, is reproduced at Pet.
App. 26-28.  10 C.F.R. 2.202 and 2.206 are reproduced at Pet. App.
28-31.

                          QUESTION PRESENTED

   Whether the court of appeals had jurisdiction under 28 U.S.C.
2342(4) and 42 U.S.C. 2239(b) to review a Nuclear Regulatory
Commission order denying respondent's request for suspension of a
nuclear power plant's operating license.

                               STATEMENT

   1. Section 2342(4) of Title 28 of the United States Code provides
that the courts of appeals have exclusive jurisdiction to review "all
final orders of the (Nuclear Regulatory) Commission made reviewable by
section 2239 of title 42." The provision referred to -- Section 189 of
the Atomic Energy Act -- deals with hearings and judicial review.
Section 189(a) (42 U.S.C. 2239(a)) /2/ provides that

         (1) In any proceeding under this chapter, for the granting,
      suspending, revoking, or amending of any license or construction
      permit, * * * and in any proceeding for the issuance or
      modification of rules and regulations dealing with the
      activities of licensees, * * * the Commission shall grant a
      hearing upon the request of any person whose interest may be
      affected by the proceeding, and shall admit any such person as a
      party to such proceeding.

Section 189(b) (42 U.S.C. 2239(b)) states that

         (a)ny final order entered in any proceeding of the kind
      specified in subsection (a) of this section shall be subject to
      judicial review in the manner prescribed in (28 U.S.C. 2342(4)).

   NRC regulations permit the Director of the Office of Nuclear
Reactor Regulation to begin a proceeding for suspending, revoking, or
modifying a license by serving on the licensee an order to show cause
alleging either the violations with which the licensee is charged, or
other facts deemed sufficient to warrant the proposed action.  The
licensee then answers and may demand a hearing.  10 C.F.R. 2.202.

   The regulations also permit any person to request that the Director
institute such a proceeding.  /3/ Requests must specify what action is
desired, and must set forth supporting facts.  10 C.F.R. 2.206(a).
Upon receipt of such requests, the NRC typically publishes a notice in
the Federal Register so that comments may be submitted.  /4/ The
Director is then required, within a reasonable time, either to issue a
show cause order against the licensee, or to advise the person who
made the request of his reasons for declining to act.  10 C.F.R.
2.206(b).

   The NRC has interpreted Section 2.206 to require the issuance of a
show cause order if a "substantial health or safety issue ha(s) been
raised" by the request.  In re Consolidated Edison Co. (Indian Point,
Units 1, 2 & 3), 2 N.R.C. 173, 176 (1975).  In deciding whether to
issue a show cause order, the Director does not hold any kind of
formal hearing.  He "is free to rely on a variety of sources of
information, including staff analyses of generic issues, documents
issued by other agencies, and the comments of the license on the
factual allegations." In re Northern Indiana Public Service Co.
(Bailly Generating Station, Nuclear-1), 7 N.R.C. 429, 433 (1978),
aff'd, 606 F.2d 1364 (D.C. Cir. 1979).  The Director's decision not to
institute a proceeding is reviewable by the Commission on its own
motion (10 C.F.R. 2.206(c)).

   2. On September 11, 1981, respondent Joette Lorion ("respondent"),
on behalf of the Center for Nuclear Responsibility, wrote a letter to
the NRC asking that it shut down Florida Power & Light Company's
Turkey Point Plant, Unit 4 (J.A. 6-8).  Respondent asserted that the
steam generators needed to be inspected (id. at 7).  She also claimed
that the steam generator tubes should be examined for possible leaks
(id. at 7-8).  Finally, she asked the Commission to consider
suspending the plant's operating license because of concerns over the
safety of the reactor pressure vessel in the event of thermal shock
(id. at 6, 8).  Treating respondent's letter as a request under 10
C.F.R. 2.206, the Commission referred it to the Director of Nuclear
Reactor Regulation (Pet. App. 2-3).

   On the basis of a 547-page record, the Director issued a decision
on November 5, 1981, denying respondent's request.  /5/ He concluded
that the issue of shutting down the plant for inspection of its steam
generators was moot, since that very action had been taken on October
18, 1981 (Pet. App. 19).

   The Director went on to review the relevant provisions of the
utility's license and amendments dealing with the matter of steam
generator tube leakage.  He also examined the plant's operations since
1976" under strict requirements imposed by the NRC staff'" to deal
with that problem.  Pet. App. 17 (quoting Florida Power & Light Co.
(Turkey Point Plant, Unit 3), 12 N.R.C. 386, 388 (1980)).  He
concluded that respondent had not "advance(d) any factual basis for
anticipating" that "a handful of tubes" might rupture (Pet. App. 21).
In any event, the Director found that the question was being closely
monitored, and that "(t)he procedures and safeguards instituted in
relation to that problem are sufficient to safeguard the public health
and safety" (Pet. App. 22).

   Finally, the Director examined the question of thermal shock to
reactor pressure vessels, and actions by the NRC staff and the utility
for dealing with that issue.  He determined that the condition of the
reactor pressure vessel did not warrant a proceeding for license
suspension, given the ongoing supervision of that matter by the NRC
staff and the study, then in progress, of Unit 4's pressure vessel
(id. at 22-24).  The Director's decision was filed with the Commission
in accordance with 10 C.F.R. 2.206(c).  The Commission declined to
disturb the Director's decision.  /6/

   3. Respondent then filed a petition for review in the court of
appeals pursuant to 28 U.S.C. 2342(4) and Section 189(b) of the Act.
She argued that the decision not to issue a show cause order was
arbitrary and capricious, and that (given the express terms of Section
189(a)) the Commission had improperly declined to hold a hearing on
her request.  Although no party questioned its jurisdiction, the court
of appeals held that it lacked jurisdiction to review the denial of
respondent's request.  /7/

   The court began by noting the established principle that the NRC
need not hold a hearing in passing on a Section 2.206 request, since
that determination was not "a 'proceeding' under 42 U.S.C. Sec.
2239(a)" (Pet. App. 7).  See Porter County Chapter of the Izaak Walton
League v. NRC, 606 F.2d 1363 (D.C. Cir. 1979);  Illinois v. NRC, 591
F.2d 12 (7th Cir. 1979).  /8/ The court found this principle
inconsistent with "a separate line of authority" holding that the
consideration and denial of a Section 2.206 request was a "proceeding"
under 42 U.S.C. 2239(b) for purposes of judicial review, and so was
reviewable in the court of appeals (Pet. App. 8).  See Seacoast
Anti-Pollution League v. NRC, 690 F.2d 1025 (D.C. Cir. 1982);
Rockford League of Women Voters v. NRC, 679 F.2d 1218 (7th Cir. 1982).
 See also Natural Resources Defense Council, Inc. v. NRC, 606 F.2d
1261 (D.C. Cir. 1979).  The proper resolution of that inconsistency,
the court concluded, was to permit review in the courts of appeals
only of final orders entered in "formal 'proceedings'" -- i.e., those
where a hearing is held (Pet. App. 11).  Orders terminating "the
informal process" appropriate to Section 2.206 requests, by contrast,
would fall within the general federal question jurisdiction of the
district courts (Pet. App. 10-11).  See 28 U.S.C. 1331.

   The court accordingly transferred the case to the district court
pursuant to 28 U.S.C. 1631 (Pet. App. 15).  The government sought
rehearing en banc on the question of jurisdiction, but its request was
denied (83-1031 Pet. App. 3a-5a).

                          SUMMARY OF ARGUMENT

   The language and history of Section 189 fo the Atomic Energy Act
support direct review of this case in the court of appeals.  That
result is bolstered by compelling practical considerations.

   A.  1.  Section 189(a) makes clear that there may be "proceedings"
in which no hearing is held, e.g., because none is requested, or
because there is no issue of fact to be determined.  The
Administrative Orders Review Act (Hobbs Act) -- under which review
should take place in this case -- uses the term "proceedings" in the
same sense.  It is true that Section 189(a) says that "the Commission
shall grant a hearing" in any proceeding.  But that language does not
bind the Commission to go through wasted motion, or to carry out a
full-scale enforcement action where there is no substantial health or
safety issue.  The Seventh Amendment also says that "the right of
trial by jury shall be preserved" in suits at common law;  but it does
not require that a jury be empanelled where there is no genuine issue
of material fact.  See Fed. R. Civ. P. 56(c).

   2. Language in two cases suggests that no hearing need be held on
Section 2.206 requests, because NRC determinations under that
regulation are not "proceedings" for purposes of Section 189(a).  But
a more careful reading of those cases makes clear that they in fact
stand for a more obvious principle:  that the Commission's rules can
"require() an applicant who seeks a hearing to meet a threshold burden
of tendering evidence suggesting the need for a hearing." Costle v.
Pacific Legal Foundation, 445 U.S. 198, 214 (1980).

   Since the term "proceedings" in Section 189(a) is not limited to
cases in which "formal hearings" are held (Pet. App. 13), there is no
obstacle to court of appeals review of this case under Section 189(b),
which says that "(a)ny final order entered in any proceeding of the
kind specified in subsection (a) of this section shall be subject to
judicial review in (the courts of appeals)."

   B. The legislative history of Section 189 also supports court of
appeals review in this case.

   1. The history of that section shows that Congress intended the
courts of appeals to review all NRC orders affecting licensees.  The
original bill introduced in Congress authorized court of appeals
review of "any order of the Commission," including any action taken
"in connection with" the revocation or modification of a license.
H.R. 8862, 83d Cong., 2d Sess. Secs. 188, 189 (1954).  Although that
authorization was substantially curtailed after hearings, it was later
reexpanded to its current form in order "to clarify the intent of
Congress with respect to the extent of the applicability of (court of
appeals review)." 100 Cong. Rec. 10686 (1954).

   The legislative history shows still more clearly that the right to
direct review was not intended to depend on whether a hearing was
held.  The original bill, which did provide for direct review, did not
even include the right to a hearing.  That right was later added to
Section 181.  And shortly before passage the hearing provision was
moved to Section 189.  That change was made in order to limit the
right to a hearing to licensing cases where review was available.  But
it inverts Congress's purpose to say that the right to direct review
depends on whether a hearing was held.

   2. Congress's choice of the Hobbs Act to govern review in the
courts of appeals was also significant.  That Act, passed only four
years before the Atomic Energy Act, is expressly designed to permit
review of agency orders entered where no hearing has been held.  In
passing the Hobbs Act Congress had uppermost in its mind orders of the
Federal Communications Commission -- the very agency whose licensing
scheme is copied in the Atomic Energy Act.  FCC orders are reviewable
in the courts of appeals even where no hearing is held.

   C. Our interpretation of Section 189 is supported by compelling
practical considerations.  The court of appeals' construction will
predictably lead to simultaneous review, in the district courts and
the courts of appeals, of closely connected NRC orders.  Even where
simultaneous review does not occur, the court's decision will
necessitate wasteful serial review.  "This in turn implies five tiers
of potential judicial or quasi-judicial review of the petitioner's
request * * *:  by the Director of Nuclear Reactor Regulation, by the
full Commission, by the district court, by the court of appeals, and
by the Supreme Court.  This is too much." Rockford League of Women
Voters v. NRC, 679 F.2d at 1221.

   District court review is unnecessary in this class of cases,
because there is no need for fact-finding and issue-clarification.  In
fact, the courts of appeals can perform the job of review better than
the district courts.  They have developed a reservoir of experience in
this area precisely because Section 189(b) requires them to review all
the other cases involving NRC license orders and rulemaking
proceedings.

                               ARGUMENT

 THE COURTS OF APPEALS HAVE EXCLUSIVE JURISDICTION TO REVIEW NRC
ORDERS DENYING SECTION 2.206 REQUESTS

   The issue in this case is whether the denial of a Section 2.206
request terminates the kind of "proceeding" that Section 189(b) of the
Atomic Energy Act makes reviewable in the courts of appeals.  That
question cannot be resolved with absolute certainty by reference to
either the language or the legislative history of Section 189, since
the procedure created by Section 2.206 -- private requests for
enforcement action -- did not exist at the time the Atomic Energy Act
was enacted.  See note 3, supra.  /9/ We believe, nevertheless, that
the most natural construction of Section 189 directs that review
should occur in the courts of appeals.  This conclusion is also most
consistent with the indications of congressional intent that appear in
the legislative history.  One should not strain to reach a different
conclusion, since compelling practical considerations support that
result.

 A. The Language And Structure Of Section 189 Of The Atomic Energy Act
Envision Court Of Appeals Review Of Final Orders Entered In
"Proceedings" Where No Hearing Has Been Held

   According to the court of appeals, it was precluded from taking
jurisdiction over respondent's petition by "the clear-cut language of
(Section 189)" (Pet. App. 10).  That section, the court said, used the
term "proceeding" to mean "formal 'proceedings'" -- those in which
"formal hearings" were held (id. at 11, 13).  Because no hearing was
held in this case under Section 189(a), there was no "proceeding"
reviewable under Section 189(b).  Only by reading the Act in that
fashion, the court believed, could it avoid the anomaly of having the
term "'proceeding' * * * mean one thing for procedural purposes and
another for jurisdictional purposes" (Pet. App. 11).

   The language and structure of Section 189 do not support these
conclusions.  Section 189(a), which deals with the right to a hearing,
plainly envisions "proceedings" in which no hearing is held.  Section
189(b) makes these and other "proceedings" reviewable in the courts of
appeals.  The cases holding that the Commission may dispose of some
Section 2.206 requests without holding a hearing are consistent with
this interpretation of the Act.

 1. Section 189(a) Does Not Require A Hearing To Be Held In Every
Proceeding

   a. Section 189(a) does not, as the court of appeals believed,
equate "proceeding" with agency action in which a hearing is held.  On
the contrary, it plainly presumes that there may be proceedings
without any hearing.  The first sentence of Section 189(a) states that
"the Commission shall grant a hearing upon the request of any person
whose interest may be affected by the proceeding * * *." That means
that in some proceedings no hearing will be held because none is
requested.  It also means that in other proceedings no hearing will be
held because the only request for one comes from a person who has no
"interest (that) may be affected by the proceeding."

   Even when a hearing is requested by an interested party, there are
reasons why none may be held.  An evidentiary hearing may be denied if
the party fails to specify the basis for his request, BPI v. AEC, 502
F.2d 424 (D.C. Cir. 1974), or fails to raise an issue within the scope
of the proceeding, Bellotti v. NRC, 725 F.2d 1380 (D.C. Cir. 1983).  A
licensing proceeding may also be concluded without a hearing when the
contentions advanced present no genuine issue of material fact.  10
C.F.R. 2.749.

   In still another class of cases the Commission may decline to hold
a hearing because it concludes that it lacks jurisdiction.  In Natural
Resources Defense Council, Inc. v. NRC, supra, for example, the NRC
held that it lacked licensing authority over certain waste-storage
tanks to be built by the Energy Research and Development
Administration.  606 F.2d at 1264-1266.  In such a case it would make
little sense for the NRC then to hold a hearing on whether the tanks
would satisfy substantive license requirements (e.g., whether they
would threaten the public health and safety).  Yet the court of
appeals held that the Commission's order had been "'entered in (a)
proceeding' for 'the granting . . . of (a) license,'" and so was
reviewable under Section 189(b), since "a licensing jurisdiction
determination is a necessary first step in any proceeding for the
granting of a license" (606 F.2d at 1265).  But see Union of Concerned
Scientists v. NRC, No. 82-2053 (D.C. Cir. May 25, 1984), slip op. 11.

   In short, there are a variety of screening procedures by which a
Section 189(a) proceeding may be concluded without a hearing.  In this
case the Director found that one of respondent's claims was moot, that
there was no factual basis for the second, and that the third
presented no substantial health or safety issue warranting further
proceedings.  He therefore declined to issue a Section 2.202 order,
and terminated the proceeding short of a hearing.

   This distinction between a "proceeding" (a term which describes the
entire litigation process at the administrative level) and a "hearing"
(one of the procedures to be followed in many such proceedings) is
hardly unique.  The very same distinction is drawn in the
Administrative Orders Review Act (28 U.S.C. 2341 et seq.) (the Hobbs
Act), to which Section 189(b) refers for judicial review of these
cases.  28 U.S.C. 2349(a) states that "(t)he court of appeals has
jurisdiction of the proceeding on the filing and service of a petition
to review." Once it has jurisdiction, the court may take any number of
actions "pending the final hearing and determination of the petition."
28 U.S.C. 2349(b).  28 U.S.C. 2346 states that the "proceeding" may be
"terminated on a motion to dismiss" -- i.e., prior to a "hearing" in
the court of appeals.  Cf. 28 U.S.C. 2345 ("prehearing conference").
Moreover, a final judgment in the "proceeding to review" is itself
subject to further judicial review in this Court (28 U.S.C. 2350);
and such a judgment may be entered, in response to a motion to dismiss
(28 U.S.C. 2346), before a hearing is held in the court of appeals.

   The Hobbs Act also uses the term "proceedings" to describe cases
where no hearing has been held before the agency whose action is being
reviewed.  28 U.S.C. 2347(b) states that

         When the agency has not held a hearing before taking the
      action of which review is sought by the petition, the court of
      appeals shall determine whether a hearing is required by law.
      After that determination, the court shall --

         (1) remand the proceedings to the agency to hold a hearing,
      when a hearing is required by law;

         (2) pass on the issues presented, when a hearing is not
      required by law and it appears from the pleadings and affidavits
      filed by the parties that no genuine issue of material fact is
      presented * * *.

   The independence of the terms "proceeding" and "hearing" is thus
well recognized in other contexts.  The court of appeals may
nevertheless have believed that they were inseparable here because
Section 189(a) states that "(i)n any proceeding * * * the Commission
shall grant a hearing * * *." But the word "shall" is not intended to
be absolute.  The Seventh Amendment also states that "In Suits at
common law * * * the right of trial by jury shall be preserved".  But
the constitutional right to a particular mode of trial does not
preclude termination of "Suits at common law" before the jury is
empanelled if the court concludes that the plaintiff has presented no
genuine factual issue (Fed. R. Civ. P. 56(c)), or a bench trial if all
parties waive a jury (Fed. R. Civ. P. 38(d)).  Nor does the summary
termination of the case, or trial without a jury, mean that it was not
a "Suit at common law." Similarly, termination of a proceeding for
license suspension without a hearing does not mean that the agency's
action ever ripened into the kind of "proceeding" specified in Section
189.  It may only mean that there was no substantial health or safety
issue to warrant going further, or that no hearing was requested.

   b. This common sense understanding of when a "proceeding" begins,
and what it entails, is the one adopted by the Second and Seventh
Circuits.  /10/ Indeed, it was consistently adhered to within the
District of Columbia Circuit prior to this case.  /11/ It has also
been accepted in considered statements by the Third and Eighth
Circuits, which have addressed the issue in the course of holding that
district courts may not short-circuit the process of agency decision
and appellate review.  /12/ Finally, it has been followed by every
district court that has considered the problem.  /13/

   These cases have held that consideration of a Section 2.206
petition is -- like the jurisdiction determination in Natural
Resources Defense Council, Inc. v. NRC -- a "necessary first step in
th(e) proceeding" to suspend, revoke, or amend any license.  Rockford
League of Women Voters v. NRC, 679 F.2d 1218, 1221 (7th Cir. 1982);
County of Rockland v. NRC, 709 F.2d 766, 774 (2d Cir.), cert. denied,
No. 83-329 (Nov. 28, 1983).  That first step may be followed by a show
cause order, answer, hearing, and decision to suspend, revoke, or
amend.  But the process may also be terminated at an earlier stage.
The fact that it is makes it no less a "proceeding" for purposes of
judicial review.

 2. Review Of This Case Under Section 189(b) Is Consistent With The
Cases Dealing With The Right To A Hearing

   The court of appeals believed that taking jurisdiction here would
be inconsistent with several cases holding that the NRC need not hold
a hearing in passing on a Section 2.206 request, since that
determination was not "a 'proceeding' under 42 U.S.C. Section 2239(a)"
(Pet. App. 7).  After all (id. at 11):

         the statutory language of 42 U.S.C. Section 2239(b)
      explicitly restricts our reviewing jurisdiction to those final
      orders entered in the kinds of formal "proceedings" specified in
      42 U.S.C. Section 2239(a).  This unusual, interlocking scheme
      does not allow "proceeding" to mean one thing for procedural
      purposes and another for jurisdictional purposes.

Contrary to the court's assumption, however, the interpretation we
propose is entirely consistent with the principle underlying the cases
dealing with the right to a hearing on Section 2.206 requests.

   a. We begin by noting that the "interlocking scheme" created by
Section 189 is not as sophisticated as the court of appeals imagined.
Section 189(b) simply directs that the courts of appeals imagined.
Section 189(b) simply directs that the courts of appeals shall review
"(a)ny final order entered in any proceeding of the kind specified in
subsection (a)." The "kinds" of proceedings specified in Section
189(a) are those "for the granting, suspending, revoking, or amending
of any license or construction permit." /14/ Section 189(a) says
nothing about "formal proceedings." Nor, as we made clear above, does
it require that a hearing occur in every proceeding to which it
refers.

   Several courts of appeals have held that the NRC need not hold a
hearing whenever a Section 2.206 request is filed.  See Porter County
Chapter of the Izaak Walton League v. NRC, supra;  Illinois v. NRC,
supra.  Those decisions support our contention that the language of
Section 189(a) ("(i)n any proceeding * * * the Commission shall grant
a hearing") is not to be read in an absolute fashion.  See also BPI v.
AEC, supra;  Bellotti v. NRC, supra.  They thus implement in this
context the principle -- generally accepted elsewhere in the law --
that agencies have considerable discretion to set threshold
requirements for hearings.  /15/ But, improvident dicta aside, their
rationale has no effect on the choice of forum for review.

   In Porter County Chapter of the Izaak Walton League, for example,
the court rejected a claim (similar to respondent's) that the
Commission was required to hold a permit revocation hearing because
new evidence raised questions about the safety of a power reactor's
containment vessel.  The court noted the "wide discretion" that
agencies have in fashioning their own rules of procedure, and
concluded that Section 189(a) left the Commission free to "undertake
preliminary inquiries in order to determine whether (a Section 2.206)
claim is substantial enough under the statute to warrant full
proceedings." 606 F.2d at 1369 & n.15.  See also Illinois v. NRC, 591
F.2d at 15-16.

   The problem addressed in Porter County Chapter is similar to the
issue in Costle v. Pacific Legal Foundation, 445 U.S. 198 (1980).  The
Federal Water Pollution Control Act (33 U.S.C. 1342) requires an
"opportunity for public hearing" before permits may be issued for the
discharge of pollutants.  The legislative history of that Act also
reveals " a strong congressional desire that the public have input in
decisions concerning the elimination of water pollution." 445 U.S. at
215.  The EPA nevertheless promulgated regulations requiring parties
who requested a hearing on a proposed pollutant discharge permit to
show that material facts were in dispute.  This Court sustained the
regulations, noting that it had frequently upheld similar "agency
rules * * * that have required an applicant who seeks a hearing to
meet a threshold burden of tendering evidence suggesting the need for
a hearing." 445 U.S. at 214.  See also National Independent Coal
Operators' Ass'n v. Kleppe, 423 U.S. 388, 397-398 (1976);  Weinberger
v. Hynson, Westcott & Dunning, Inc., 412 U.S. 609, 620 (1973);  Gulf
States Utilities Co. v. FPC, 411 U.S. 747, 762 (1973);  United States
v. Storer Broadcasting Co., 351 U.S. 192, 205 (1956).

   Against that background it is easy to see that the Section 2.206
hearing cases ultimately do not rest on an interpretation of the word
"proceeding" in Section 189(a).  Instead they stand for the more
general principle that the NRC has authority to terminate such
proceedings short of a hearing in the proper circumstances, including
cases where issuance of a show cause order is not warranted.  And if
that is so, then confining judicial review of this case to the court
of appeals creates no inconsistency between the "procedural" and
"jurisdictional" provisions of the Act.

   b. None of the possible objections to this analysis of the
right-to-hearing cases is compelling.  One such objection is that
language in two of the cases suggests that no hearing is required
because no Section 189 "proceeding" is begun by the mere filing of a
Section 2.206 request.  Porter County Chapter of the Izaak Walton
League v. NRC, 606 F.2d at 1368;  Illinois v. NRC, 591 F.2d at 14.
But in neither case was that language necessary to the decision.
Indeed, in Illinois v. NRC the question was not even disputed 591 F.2d
at 14 n.3 (petitioner conceded that "there was no formal 'proceeding'
in which (it) could intervene as of right").  Nor did either case
consider the effect that such a conclusion would have on the right to
direct review under Section 189(b).

   The other possible objection to our analysis is that Section 2.206
itself speaks of "a request * * * to institute a proceeding pursuant
to Section 2.202." And Section 2.202(a) says that the Director
"institute(s) a proceeding * * * by serving on the licensee an order
to show cause." That language means that there is no opportunity for a
hearing until the Director grants the request and issues a show cause
order.  10 C.F.R. 2.202(b).  But it also seems to say that the request
itself does not "institute a proceeding," so that an order denying the
request would not be reviewable in the court of appeals.  Perhaps,
then, the regulations themselves support the court of appeals'
conclusion -- that the term "proceeding" has been given one meaning
"for procedural purposes and another for jurisdictional purposes"
(Pet. App. 11).

   These linguistic difficulties dissolve, however, if one keeps in
mind the realities of the process.  We noted above that an order
holding that the NRC had no jurisdiction over a license proceeding was
nevertheless considered as an order entered in such a "proceeding" for
purposes of direct review.  See pages 13-14, supra.  That is just an
application in the agency context of the familiar rule that courts
have jurisdiction to determine their own jurisdiction.  See United
States v. United Mine Workers, 330 U.S. 258, 290-295 (1947).  If the
decision is against jurisdiction, it can lead to interesting
scholastic debates about whether there ever was a "proceeding" (or a
"civil action() arising under the Constitution, laws, or treaties of
the United States" (28 U.S.C. 1331)).  But the more pragmatic approach
is to ignore that metaphysical question, and assume that decision of
such preliminary issues is necessarily encompassed by the statutory
term defining original or appellate jurisdiction.

   The same can be said of orders denying Section 2.206 requests.  In
one sense, as the regulations show, such a request is a call upon the
NRC to use its prosecutorial resources in an enforcement proceeding.
And in that sense one could argue that, if the Commission denies the
request, there never was a "proceeding." (It is certainly true that
insisting on a hearing before the request is granted would put the
cart before the horse, just as holding a trial before addressing the
issue of jurisdiction inverts the natural order of things.) But the
Commission has bound itself to act on such requests if they raise a
"substantial health or safety issue." In re Consolidated Edison Co.
(Indian Point, Units 1, 2 & 3), 2 N.R.C. 173, 176 (1975).  And for
purposes of reviewing orders issued under that standard, the more
practical approach is to treat the NRC's decisions as necessarily
encompassed by the statutory term.

   This is surely consistent with the intent of Section 2.206.  For
whatever implications one might find in the language of the
regulation, it was not intended as an administrative interpretation of
the term "proceeding" in Section 189(b).  The Commission has, after
all, consistently taken the position that an order denying a Section
2.206 request is reviewable only in the courts of appeals.  See cases
cited at notes 10-13, supra.

 B. The Legislative History Of Section 189 Supports Court Of Appeals
Review In This Case

   In Natural Resources Defense Council, Inc. v. NRC, 606 F.2d at 1265
n.11, the District of Columbia Circuit concluded that the
interpretation of Section 189 which it now rejects "is fully
consistent with (the legislative) history." We agree.  The legislative
history makes three points relevant to the issue in this case.  First,
it shows that Congress intended the courts of appeals to review all
final orders entered by the Commission in proceedings that might
affect licensees.  Second, it demonstrates that review in the court of
appeals was not keyed to a prior hearing before the Commission;  in
fact, the hearing and review provisions had independent origins, and
were not combined in Section 189 until late in the legislative
process.  Third, in selecting the Hobbs Act to govern orders entered
in license proceedings Congress consciously paralleled the FCC review
system, which gives the courts of appeals exclusive jurisdiction to
review orders like the one at issue here.

 1. Congress Intended The Courts Of Appeals To Review All NRC Orders
Affecting Licensees, Whether Or Not A Hearing Was Held

   a. A major purpose of the Atomic Energy Act of 1954 was to permit
the private exploitation of nuclear energy through an elaborate system
of construction permits and operating licenses.  S. Rep. 1699, 83d
Cong., 2d Sess. 3, 8 (1954).  The Act consolidated all the procedures
concerning permits and licenses -- applications, terms, revocation,
modification -- in chapter 16, the last provision of which is Section
189.  Ch. 1073, Sections 181-189, 68 Stat. 953-956;  see 42 U.S.C. (&
Supp. V) 2231-2239.  It is manifest from the very structure of the Act
that insofar as the licensing process occasioned judicial review,
Congress wished it to occur in the courts of appeals.

   That was certainly the intention of the original bill proposed by
the Joint Committee on Atomic Energy.  H.R. 8862, 83d Cong., 2d Sess.
Sections 188-189 (1954), reprinted in I AEC, Legislative History of
the Atomic Energy Act of 1954 (Leg. Hist.), at 166-168 (1955);  Joint
Comm. on Atomic Energy, 83d Cong., 2d Sess., A Proposed Act to Amend
the Atomic Energy Act of 1946, at 37-38 (Joint Comm. Print Apr. 1954)
(1 Leg. Hist. 97-98).  /16/ That bill established a special Review
Board to "review, on petition, any action of the Commission in
connection with" the grant, denial, revocation, or modification of a
license or permit.  H.R. 8862, Section 188 (1 Leg. Hist. 166).  /17/
The Board's decisions automatically became final orders of the
Commission (ibid.).  And Section 189 of the original bill then said
that "(a)ny proceeding to enjoin, set aside, annul or suspend any
order of the Commission shall be brought as provided by and in the
manner prescribed in the (Hobbs Act)" (1 Leg. Hist. 167) (emphasis
added)-- i.e., in the courts of appeals.

   The Joint Committee then held hearings on the bill, in the course
of which some doubt was expressed about the ability of the Review
Board ("within the Commission" itself) to act impartially.  S. 3323
and H.R. 8862, To Amend the Atomic Energy Act of 1946:  Hearings on S.
3323 and H.R. 8862 Before the Joint Comm. on Atomic Energy (AEA
Hearings), 83d Cong., 2d Sess. 290 (1954) (2 Leg. Hist. 1924).  As a
result the provision for a Board was eliminated, and Section 188 was
collapsed into Section 189.  Joint. Comm. on Atomic Energy, 83d Cong.,
2d Sess., Comm. Print Section 189 (May 21, 1954) (1 Leg. Hist.
335-336);  H.R. 9757, 83d Cong., 2d Sess. Section 189 (1954) (1 Leg.
Hist. 631).  /18/ The new Section 189 made Commission actions directly
reviewable in the courts of appeals, without any intermediate step.
Review was limited, however, to:

         Any final order granting, denying, suspending, revoking,
      modifying or rescinding any license or construction permit * *
      *.  /19/

No explanation was offered for this choice of language, which had the
apparent effect of dropping -- from the otherwise comprehensive review
scheme -- all final Commission orders (including those that terminated
enforcement proceedings) that did not suspend, revoke, modify, or
rescind a license.

   The oversight was quickly remedied, however.  Two weeks after the
substitute bill was introduced, Senator Hickenlooper proposed an
amendment giving the courts of appeals authority to review any final
order entered by the Commission

         (i)n any proceedings * * * for the granting, suspending,
      revoking, or amending of any license or construction permit * *
      *.  /20/

1 Leg. Hist. 1145 (emphasis added).  As he explained, the change was
designed "to clarify the intent of Congress with respect to the extent
of the applicability of the (Hobbs Act.)" 100 Cong. Rec. 10686 (1954)
(3 Leg. Hist. 3175).  The bill passed the Senate and was enacted in
essentially that form.  1 Leg. Hist. 37-38, 1342, 1450.

   These changes made in the course of the bill's passage, seen
against the background of chapter 16 of the original Act (Sections
181-189), strongly suggest a congressional intent to give the courts
of appeals exclusive authority to review all final Commission orders
related to the licensing process.  That is undeniably true where a
license is issued or changed as a result of the proceedings.  But as
the language finally agreed on shows, it was also intended in cases
where the proceedings are for some reason terminated short of such
action.  As we explain below (pages 34-42, infra), there are obvious
reasons why that should be so.

   b. The history of the Act also makes clear that the court of
appeals' jurisdiction to review Commission orders does not depend on
the holding of a hearing before the Commission.  In fact, the original
bill, which did provide for court of appeals review of "any order of
the Commission" (H.R. 8862, Section 189) (1 Leg. Hist. 167), did not
even include the right to a hearing.  That omission as the source of
considerable concern, given the Commission's authority to revoke
permits and licenses, to those who testified at the hearings on the
bill.  AEA Hearings, supra, at 65, 113-114, 152-153, 226-227, 328-329,
352-353, 400-401, 416-417 (2 Leg. Hist. 1699, 1747-1748, 1786-1787,
1860-1861, 1962-1963, 1986-1987, 2034-2035, 2050-2051).  The problem
was corrected in the substitute bill (H.R. 9757) by adding a new
concluding sentence to Section 181 (1 Leg. Hist. 625):

         Upon application, the Commission shall grant a hearing to any
      party materially interested in any "agency action".

   The difficulty with this provision was that it was "too broad,
broader than it was intended to (be)." 100 Cong. Rec. 10686 (1954)
(remarks of Sen. Pastore) (3 Leg. Hist. 3175).  The right to a hearing
had been added in response to concerns about the licensing process;
the obvious solution to the problem of overbreadth was to restrict the
right to those proceedings.  Senator Hickenlooper's amendment took
that approach, moving the right to a hearing from Section 181 and
making it a new subsection within Section 189 (1 Leg. Hist. 1145).
The result was that the right to a hearing was confined to the same
kinds of license proceedings for which judicial review was available.
In Senator Pastore's words (100 Cong. Rec. 10686 (1954)) (3 Leg. Hist.
3175):  "The amendment limits the provision to hearings on licenses in
which a review shall take place."

   It would be perverse, however, to turn that amendment into a
limitation on the courts of appeals' reviewing authority.  If there is
any interdependence between the hearing and review provisions of
Section 189, it actually works the other way around:  the right to a
hearing was made to depend (among other things) on the availability of
subsequent review in the courts of appeals.  That is quite a different
thing from saying that review is only available if a hearing has been
held.  /21/

 2. Congress's Choice Of The Hobbs Act Indicates An Awareness That
Orders Like The One Here Would Be Reviewed In The Courts Of Appeals

   As our discussion of the legislative history of the Atomic Energy
Act makes clear, Congress was unwavering in its decision -- made in
the very first draft of the Act -- to provide for review of Commission
orders in licensing proceedings under the Hobbs Act.  That decision is
significant because the latter Act, passed only four years earlier,
explicitly contemplated court of appeals review of agency orders
(including orders in licensing proceedings) entered without a hearing.
 /22/

   The choice of the Hobbs Act is particularly important because of
the role that statute played in the judicial review scheme for orders
of the Federal Communications Commission (FCC).  There is considerable
evidence that Congress, in setting up the system of construction
permits and operating licenses under the Atomic Energy Act,
consciously paralleled the FCC licensing system.  /23/ The FCC system,
like the Atomic Energy Act (42 U.S.C. 2236, 2237), includes provisions
for the revocation and modification of licenses (47 U.S.C. 312, 316),
and permits persons affected to request that the FCC take such action.
 /24/ Before enactment of the Hobbs Act, denials of at least some such
requests were reviewed de novo by a three-judge district court.  /25/
After the Act was passed, however, they were reviewable in the courts
of appeals, even where no hearing had been held in connection with the
denial.

   The Hobbs Act was expressly designed to accommodate review of
agency orders like the one at issue here.  Section 7(b) (28 U.S.C.
2347(b);  see page 15, supra) provides that "(w)hen the agency has not
held a hearing * * * the court of appeals shall * * * pass on the
issues presented, when a hearing is not required by law and * * * no
genuine issue of material fact is presented(.)" On the other hand,
when a hearing is required by law (ibid.), or when a party wishes to
adduce additional evidence (28 U.S.C. 2347(c)), the Act provides for a
remand of the proceedings to the agency.  /26/ The very point of that
section was to assure court of appeals review of all orders entered by
agencies such as the FCC.  As Judge Phillips, chairman of the Judicial
Conference Committee that drafted the Act, testified (Hobbs Act
Hearings, supra note 25, at 30):

         After further study, the representatives of the * * *
      Communications Commission believed that we could go a little
      further * * * , and we concluded that we could include certain
      orders made by those administrative agencies without a hearing.

See also id. at 72.

   The operation of these provisions is illustrated by FCC v. ITT
World Communications, Inc., No. 83-371 (Apr. 30, 1984).  There the FCC
denied ITT's petition for rulemaking about the Commission's authority
to participate in international discussions of new carriers and
services.  /27/ In denying the petition the FCC received comments and
reply comments, but did not hold a hearing.  In re ITT World
Communications, Inc., 77 F.C.C.2d 877, 879-882 (1980).  This Court
nevertheless held that (slip op. 405):

         Exclusive jurisdiction for review of final FCC orders, such
      as the FCC's denial of respondents' rulemaking petition, lies in
      the Court of Appeals.  28 U.S.C. Section 2342(1);  47 U.S.C.
      Section 402(a).  Litigants may not evade these provisions by
      requesting the District Court to enjoin action that is the
      outcome of the agency's order.  * * *

         * * * Respondents contend that * * * the record developed
      upon consideration of the rulemaking petition by the agency does
      not enable the Court of Appeals fairly to evaluate their ultra
      vires claim.  If, however, the Court of Appeals finds that the
      administrative record is inadequate, it may remand to the
      agency, * * * or in some circumstances refer the case to a
      special master, see 28 U.S.C. 2347(b)(3).

   The legislative record of the Hobbs Act also explains the reasons
for favoring court of appeals review, in terms that apply with equal
force to this case.  The pattern for such review, Congress noted, had
been

         established for * * * orders of the Federal Trade Commission
      in 1914 (15 U.S.C. 45c) and followed by other laws since then in
      relation to many other agencies, including the Securities and
      Exchange Commission, the Bituminous Coal Commission, and the
      National Labor Relations Borad.  It is the more modern method
      and is generally considered to be the best method for the review
      of orders of administrative agencies.

H.R. Rep. 2122, 81st Cong., 2d Sess. 4 (1950).

   The approach chosen was seen as far more efficient than the method
then in use -- review by a three-judge district court with trial de
novo.  See note 22, supra;  S. Rep. 2618, 81st Cong., 2d Sess. 3
(1950).  In part that was because "three-judge courts are not well
adapted for conducting hearings." H.R. Rep. 2122 at 4.  More
important, however, Congress recognized that "the submission of the
cases upon the records made before the administrative agencies will
avoid the making of two records, one before the agency and one before
the court, and thus going over the same ground twice" (ibid.).  The
possibility that "a suitable hearing (might) not (have been) held
prior to initiation of the proceeding in the court of appeals" did not
warrant departure from the new statutory scheme.  Instead, the Act
included "provisions in section 7(b) and (c) for the taking of
evidence either by the agency or in the district court (see note 26,
supra)" in such cases.

 C. Compelling Practical Considerations Support The Interpretation Of
Section 189 Rejected By The Court Of Appeals

   The court below recognized (Pet. App. 11-12) that its decision was
contrary to the widely held view that court of appeals review is the
most efficient and practical route for most administrative orders.  It
concluded, nevertheless, that the plain language of the statute
prevented it from weighing such considerations in reaching its
decision (ibid.).  What we have said up to this point demonstrates
that both the language and the legislative history of Section 189 are
consistent with an interpretation that permits review in the courts of
appeals.  It is thus appropriate to weigh the relative practicalities
of the alternatives.  See Crown Simpson Pulp Co. v. Costle, 445 U.S.
193, 197 (1980).  As we now show, those considerations strongly
support the interpretation we urge, for as Professor Davis has noted,
it is a "highly practical" one.  4 K. Davis, Administrative Law
Treatise Section 23.5, at 140 (1983).

 1. The Court Of Appeals' Construction Will Lead To Bifurcated Or
Serial Review Of NRC Orders In License Proceedings

   The court of appeals' holding has the anomalous result of making
the proper forum for review depend on whether a Section 2.206 request
is granted or denied.  In the latter case (the situation here) review
must proceed first to the district court.  In the former case review
would occur in the court of appeals, since a hearing would ordinarily
be held.  See 10 C.F.R. 2.202 /28/ One may justifiably doubt that
Congress contemplated such an unusual division of jurisdiction when it
enacted Section 189.  That allocation of authority is not just
peculiar, though.  It has quite undesirable practical consequences.

   a. One consequence of parsing jurisdiction in that way is that it
leads to bifurcated review when the Section 2.206 denial is closely
related to another NRC order reviewable in the court of appeals.  A
good example is provided by Rodriguez v. NRC, dismissed, No. 83-1805
(D.C. Cir. May 25, 1984).  There the failure of the licensee's
circuit-trip breaker required a reactor to be manually shut down.  On
April 12, 1983 Rodriguez filed a Section 2.206 request, seeking to
have the NRC keep the reactor shut down until the licensee had
properly analyzed the causes of the circuit breaker failure.  On April
28, 1983 the licensee submitted to the NRC a program for corrective
action.  On April 29, 1983 the Director of the Office of Nuclear
Reactor Regulation denied petitioner's Section 2.206 request,
concluding that the licensee's proposed program adequately resolved
any concerns.  And on May 6, 1983 the NRC issued an immediately
effective license amendment, requiring the licensee to implement the
program proposed on April 28.  Rodriguez then sought review in the
court of appeals of:  (i) the order denying his Section 2.206 request,
and (ii) the order directing an immediately effective license
amendment.  Under the jurisdictional scheme created by the decision in
this case, (i) was reviewable in the district court, while (ii) went
to the court of appeals.  /29/ See also Rockford League of Women
Voters v. NRC, 679 F.2d at 1219;  Seacoast Anti-Pollution League v.
NRC, 690 F.2d at 1027;  48 Fed. Reg. 4589 (1983).

   That bifurcation of review is similar to the problem addressed by
this Court in Foti v. INS, 375 U.S. 217 (1963).  The issue in Foti was
whether the Attorney General's refusal to suspend deportation was
reviewable in the court of appeals under the Hobbs Act.  "Although
deportability and whether to grant a suspension are determined in the
same hearing, the (court of appeals') decision (in that case) mean(t)
that an alien (could) appeal only the deportability finding to a Court
of Appeals and (had) initially (to) seek review of a denial of
suspension in a District Court" (375 U.S. at 226).  This Court held
that "(b)ifurcation of judicial review of deportation proceedings is
not only inconvenient;  it is clearly undesirable and not the
necessary result from a fair interpretation of the pertinent statutory
language" (id. at 232).  See also Crown Simpson Pulp Co. v. Costle,
445 U.S. 193, 197 (1980) ("Absent far clearer expression of
congressional intent, we are unwilling to read the Act as creating
such a seemingly irrational bifurcated system.");  Investment Company
Institute v. Board of Governors, 551 F.2d 1270, 1276 (D.C. Cir. 1977);
 Environmental Defense Fund, Inc. v. Hardin, 428 F.2d 1093, 1098-1099
(D.C. Cir. 1970);  Currie & Goodman, Judicial Review of Federal
Administrative Action:  Quest for the Optimum Forum, 75 Colum. L. Rev.
1, 60 (1976) (Currie & Goodman);  L. Jaffe, Judicial Control of
Administrative Action 158-159, 422 (1965) (Jaffe).

   b. Even if there were no risk of simultaneous district and
appellate court review, there is little to be gained in these cases
from serial review by two tiers of courts.  As Judge Posner noted in
Rockford League of Women Voters v. NRC, 679 F.2d at 1221:  "This in
turn implies five tiers of potential judicial or quasi-judicial review
of the petitioner's request * * *:  by the Director of Nuclear Reactor
Regulation, by the full Commission, by the district court, by the
court of appeals, and by the Supreme Court.  This is too much."

   Such protracted proceedings cause delay.  "The most obvious
advantage of direct review by a court of appeals is the time saved
compared to review by a district court, followed by a second round on
appeal." Harrison v. PPG Industries, Inc., 446 U.S. 578, 593 (1980);
Foti v. INS, 375 U.S. at 226;  Currie & Goodman, 75 Colum. L. Rev. at
16;  Note, The Forum for Judicial Review of Administrative Action:
Interpreting Special Review Statutes, 63 B.U. L. Rev. 765, 793 (1983)
(Note).  As the Administrative Conference has said, "direct review by
the courts of appeals, where feasible, is generally desirable in the
interest of efficiency and economy, as respects both litigants and the
judicial system." 1 C.F.R. 305.75-3(g).  This is particularly true in
the context of nuclear power reactor licensing.  See Quivira Mining
Company v. EPA, 728 F.2d 477, 482 (10th Cir. 1984).  It is an
acknowledged fact that the unavoidable costs of delay prior to reactor
construction and in interrupted operation -- to which multiple layers
of review inevitably contribute -- have reached astonishing
proportions.  See Union of Concerned Scientists v. NRC, No. 82-2053
(D.C. Cir. May 25, 1984), slip op. 9 n.6 (MacKinnon, J., dissenting).
Prolonging the review process for decisions in enforcement proceedings
will only exacerbate the effect on licensees and recipients of
construction permits.  /30/

   Serial review in this context is not only time-consuming, but also
redundant.  There is no need in the case of Section 2.206 denials for
the kind of factsifting and issue-clarification that district courts
can usefully undertake in other contexts.  The reviewing court here
will have before it a record of 547 pages, along with the decision of
the Director of Nuclear Reactor Regulation explaining the reasons for
the denial (Pet. App. 16-25).  The NRC's regulations assure that such
an explanation will be available in every case.  10 C.F.R. 2.206.
/31/ There may also be a similar decision by the full Commission.  10
C.F.R. 2.206(a).  /32/

   The issues on judicial review of such decisions are whether the
refusal to issue a show cause order was arbitrary and capricious, and
whether the record shows "'a consideration of the relevant factors,'"
Seacoast Anti-Pollution League v. NRC, 690 F.2d at 1030-1031 (quoting
Citizens to Preserve Overton Park, Inc. v. Volpe, 401 U.S. 402, 416
(1971)).  In resolving those questions the court of appeals will
derive little benefit from the prior efforts of a district court.  On
the contrary, it will simply

         render an independent decision on the basis of the same
      administrative record as that before the district court;  the
      identical standard of review is employed at both levels;  and
      once appealed, the district court decision is accorded no
      particular deference.

First National Bank v. Smith, 508 F.2d 1371, 1374 (8th Cir. 1974),
cert. denied, 421 U.S. 930 (1975);  Amusement & Music Operators Ass'n
v. Copyright Royalty Tribunal, 636 F.2d 531, 534 (D.C. Cir. 1980).

 2. Review Under The Hobbs Act Better Respects The Different
Competencies Of The District Courts And The Courts Of Appeals

   As we have already noted (page 38), district courts are
functionally better equipped than the courts of appeals to perform the
tasks of fact-finding and issue-clarification.  The nature of the
agency action being reviewed here, however, makes no special demand
for those abilities.  On the contrary, expenditure of district court
resources is unusually inefficient in cases like this, which involve
complex regulatory statutes and administrative schemes with which the
courts of appeals are much more familiar.  If the decision in this
case is affirmed, "a district court with little knowledge of (the)
agency's work will be required to handle an odd case" from time to
time.  Jaffe, supra, at 159.  The court of appeals, on the other hand,
have developed a reservoir of experience in this area because
litigation involving NRC license orders and rulemaking proceedings --
under the terms of Section 189 -- typically bypass the district
courts.  Direct review takes advantage of this expertise and
contributes to uniformity of decisions.  For this reason the
Administrative Conference has recommended that even "(i)nformal orders
issued by agencies that mainly engage in formal adjudication and the
formal orders of which are * * * subject by statute to direct review
by the courts of appeals * * * should * * * be reviewable by the
courts of appeals." 1 C.F.R. 305.75-3 recommendation 6(b)(iii).  See
also Note, 63 B.U.L. Rev. at 792-793;  Currie & Goodman, 75 Colum. L.
Rev. at 12.

   Nor does resolution of these issues call for any of the other
distinctive contributions that district courts make to the judicial
process.  One service performed by multiple tiers of review (claims
under the Social Security Act are a prominent example) is that the
district courts play a "vital screening role * * * in holding down the
volume of appellate litigation * * *." Currie & Goodman, 75 Colum. L.
Rev. at 6.  By contrast, "(t)he court(s) of appeals (are) the
appropriate reviewing forum for (even) informal actions that * * * (a)
 re either few in number or, if numerous, would in most cases be
likely to reach the appellate courts eventually" (1 C.F.R. 305.75-3
recommendation 6(b)(iii)).

   As we noted in our petition (Pet. 15-16 & n.12), although Section
2.206 requests have historically been numerous, petitions for judicial
review of denials have not been.  Between 1974 and 1984 the NRC
received 204 Section 2.206 requests.  In only eight of those was
judicial review sought after the request was denied.  While there are
indications that petitions for review may be filed more frequently in
the future (see Pet. 16 n.12), such litigation does not portend any
unmanageable burden for the courts of appeals.

   Still another advantage of district court review is the convenience
of venue.  In proceedings under the Social Security Act -- e.g., for
review of adverse administrative decisions on disability -- the
plaintiff has the right to a forum in the judicial district where he
resides.  42 U.S.C. (Supp. V) 405(g).  In such situations "(t)he
obvious theory of a district court venue is that the typical plaintiff
is a person of modest means." Jaffe 158.  Here, however, there is no
basis for presuming as a general matter that petitioners will fit that
description.

   This review of practical considerations only confirms what the
court of appeals recognized -- that this is a case where direct review
in the court of appeals should be heavily favored.  Since there is no
merit to the court's conclusion that the statutory language barred
achievement of the result that practicality and good sense dictate,
there is no reason to forego the benefits of direct review.

                              CONCLUSION

   The judgment of the court of appeals should be reversed and the
case remanded for disposition on the merits.

   Respectfully submitted.

   REX E. LEE

      Solicitor General

   LOUIS F. CLAIBORNE

      Deputy Solicitor General

   JOHN H. GARVEY

      Assistant to the Solicitor General

   DIRK D. SNEL

   JOHN A. BRYSON

      Attorneys

   HERZEL H.E. PLAINE

      General Counsel

   MARTIN G. MALSCH

      Deputy General Counsel

   E. LEO SLAGGIE

      Acting Solicitor

   RICHARD P. LEVI

      Attorney Nuclear Regulatory Commission

   JUNE 1984

   /1/ "Pet. App." refers to the Appendix to the Petition in No.
83-703.

   /2/ Congress amended Section 189(a) in 1983.  NRC Authorization
Act, Pub. L. No. 97-415, Section 12, 96 Stat. 2073.  The amendments
were intended to overturn the decision in Sholly v. NRC, 651 F.2d 780
(D.C. Cir. 1980), vacated, No. 80-1640 (Feb. 22, 1983), which had held
improper the Commission's practice of not providing a prior hearing on
lice;se amendments not involving significant hazards considerations.
Since the amendment has not yet been codified, we will refer
throughout to 42 U.S.C. 2239(a) or Section 189(a) as a shorthand for
the currently effective version.

   /3/ In the early 1970's the Commission had no formal means of
dealing with citizens' letters requesting specific enforcement action
against licensees.  See, e.g., Memorandum and Order Regarding Filing
of Petition for Shutdown of Certain Reactors, 38 Fed. Reg. 23815
(1973).  The Commission adopted 10 C.F.R. 2.206 in 1974 "to provide a
procedure for the submittal of such requests to the Director of
Regulation." 39 Fed. Reg. 12353 (1974).

   /4/ In 1983 the Commission received 28 petitions under Section
2.206.  In 19 of those cases it published notice that it had received
the request.  See 48 Fed. Reg. 4589, 10150, 13300, 21225, 23502,
27327, 31119, 34371, 44687, 44688, 48881, 48882, 49395, 52370(2),
54550, 56127, 57037 (1983);  49 Fed. Reg. 4572 (1984).

   Section 2.206 requests may at times lead to rather elaborate,
though informal, proceedings.  For example, in In re Public Service
Co. (Marble Hill Nuclear Generating Station, Units 1 & 2), 14 N.R.C.
1085 (1981), the proceeding consisted in part of nine submissions by
the petitioner, including two Section 2.206 requests, a Section 2.206
denial, a request by the Commission for further comments, and a
supplemental Section 2.206 denial.

   /5/ Portions of the record are reproduced at C.A. App. 1-164.

   /6/ When she received the Director's decision, and before the time
during which the Commission could exercise its sua sponte power of
review had expired, respondent notified the Commission that her letter
had been only advisory, and that she had not intended it to be a
formal petition under 10 C.F.R. 2.206.  She requested that the
Commission vacate the Director's decision for that reason.

   /7/ The court did find, as an initial matter, that the NRC had
properly treated respondent's letter as a request under 10 C.F.R.
2.206.  It also noted that none of the arguments raised by respondent
under the National Environmental Policy Act of 1969, 42 U.S.C. 4321,
et seq., were properly before the court, since they had not been first
presented to the agency (Pet. App. 4).

   /8/ The NRC stated in its brief in the court of appeals that "(a)
request under 10 C.F.R. 2.206 is not a licensing proceeding within the
meaning of Section 189" (C.A. Br. 23 n.8).  This statement was made in
response to respondent's argument that every Section 2.206 request
deserved a formal, adjudicatory hearing.  It was not intended as a
concession that denial of such requests without a hearing was not
reviewable in the court of appeals.  In the petition for rehearing
counsel for the NRC acknowledged the failure to make this distinction
clear.

   /9/ We note at the outset that there is nothing unique about the
promulgation regulations, like 10 C.F.R. 2.206, that augment the
number of orders reviewable in the courts of appeals.  This Court
addressed that very issue in Foti v. INS, 375 U.S. 217, 229-230 & n.16
(1963), where it held:

         We see nothing anomalous about the fact that a change in the
      administrative regulations may effectively broaden or narrow the
      scope of review available in the Courts of Appeals.

         * * * While presumably denials of Section 243(h) relief were
      not covered by Section 106(a) at the time of its enactment, it
      does not seem incongruous to assume that such orders, because of
      the change in administrative regulations making such decisions
      an integral part of the deportation proceedings conducted by a
      special inquiry officer, are now within the reach of Section
      106(a)'s judicial review provisions.

   /10/ County of Rockland v. NRC, 709 F.2d 766, 774 (2d Cir.) cert.
denied, No. 83-329 (Nov. 28, 1983);  Rockford League of Women Voters
v. NRC, 679 F.2d 1218, 1219-1221 (7th Cir. 1982).  See also Illinois
v. NRC, 591 F.2d 12 (7th Cir. 1979) (accepting jurisdiction without
considering the question);  City of West Chicago v. NRC, 701 F.2d 632,
653 (7th Cir. 1983) (dictum).

   /11/ Seacoast Anti-Pollution League v. NRC, 690 F.2d 1025,
1027-1028 (D.C. Cir. 1982);  Natural Resources Defense Council, Inc.
v. NRC, 606 F.2d 1261 (D.C. Cir. 1979).  See also Porter County
Chapter of the Izaak Walton League v. NRC, 606 F.2d 1363 (D.C. Cir.
1979) (accepting jurisdiction without considering the question).

   /12/ Simmons v. Arkansas Power & Light Co., 655 F.2d 131, 134 (8th
Cir. 1981);  Susquehanna Valley Alliance v. Three Mile Island Nuclear
Reactor, 619 F.2d 231, 235-239 (3d Cir. 1980), cert. denied, 449 U.S.
1096 (1981).  Justice Rehnquist, dissenting from the denial of
certiorari in Susquehanna Valley Alliance, noted with apparent
approval the court of appeals' "hold(ing) * * * that the Atomic Energy
Act claims are reviewable exclusively in the Court of Appeals" (449
U.S. at 1099).

   /13/ Desrosiers v. NRC, 487 F. Supp. 71, 75 (E.D. Tenn. 1980)
(dictum);  Paskavitch v. NRC, 458 F. Supp. 216, 217 (D. Conn. 1978)
(dictum);  Honicker v. Hendrie, 465 F. Supp. 414, 418-419 (M.D.
Tenn.), appeal dismissed, 605 F.2d 556 (6th Cir. 1979), cert. denied,
444 U.S. 1072 (1980).  See Sunflower Coalition v. NRC, 534 F. Supp.
446, 448 (D. Colo. 1982).  But cf. Drake v. Detroit Edison Co., 443 F.
Supp. 833 (W.D. Mich. 1978).

   /14/ In addition, Section 189(a) mentions proceedings "for the
issuance or modification of rules and regulations dealing with the
activities of licensees, and * * * for the payment of compensation, an
award or royalties under sections 2183, 2187, 2236(c) or 2238 of this
title" (42 U.S.C. 2239(a)(1)).

   /15/ We note in this regard that the threshold for granting a
Section 2.206 request and issuing a show cause order differes from
that for granting a hearing in an initial licensing proceeding.  In
the latter case a person with the requisite standing need only advance
a contention raising a genuine issue of material fact, while in the
former case a person must raise a substantial health and safety
concern warranting issuance of a show cause order.  A mere dispute
about factual issues is not sufficient to require granting a Section
2.206 petition.  In re Consolidated Edison Co. (Indian Point, Units 1,
2 & 3), 2 N.R.C. 173 (1975).  This difference in the threshold for a
hearing is due to the distinction between initial licensing, where all
aspects of the application must be judged by the agency, and
enforcement cases, where the agency has substantial discretion
regarding whether to take action and ordinarily will not do so absent
a showing that such action is warranted.

   /16/ A companion bill to H.R. 8862 was introduced in the Senate.
S. 3323, 83d Cong., 2d Sess. (1954) (1 Leg. Hist. 181).  (For the
Court's convenience we will include citations to the Legislative
History, where appropriate, in parentheses after the document referred
to.)

   /17/ The Board was also empowered to review Commission action
adopting or modifying regulations that affected certain licensees
(including those who operated power plants), or determining "just
compensation pursuant to the provisions of this Act." H.R. 8862,
Section 188 (1 Leg. Hist. 166);  cf. note 14, supra.

   /18/ An identical substitute bill was reported favorably by the
Joint Committee to the Senate and placed on the calendar.  S. 3690,
83d Cong., 2d Sess. (1954) (1 Leg. Hist. 645);  S. Rep. 1699, 83d
Cong., 2d Sess. (1954) (1 Leg. Hist. 749);  100 Cong. Rec. 9260 (1954)
(3 Leg. Hist. 3018).

   /19/ The Review Board was also eliminated as a step to direct
review in the courts of appeals of Commission orders "issuing or
modifying rules and regulations dealing with the activities of
licensees." H.R. 9757, Section 189 (1 Leg. Hist. 631).

   /20/ The amendment also restored to the courts of appeals the
review authority they had under the original bill (once the Review
Board had acted) over final orders entered "in any proceeding for the
payment of compensation, an award or royalties under Section 156,
186(c) or 188." 1 Leg. Hist. 1145.  See note 17, supra.

   /21/ We note that although Congress amended Section 189 of the
Atomic Energy Act in 1983, see note 2, supra, it did nothing to
disturb the (at that time) consistent line of authority recognizing
jurisdiction in the courts of appeals over Section 2.206 denials.  See
Blue Chip Stamps v. Manor Drug Stores, 421 U.S. 723, 733 (1975).

   /22/ The Hobbs Act was enacted in 1950 after a long history.  At
the suggestion of Chief Justice Stone, the Judicial Conference
established a committee in 1942 to study the advisability of replacing
the review procedures of the Urgent Deficiencies Act with a more
modern judicial review system.  H.R. Rep. 2122, 81st Cong., 2d Sess. 2
(1950).  The Urgent Deficiencies Act, passed in 1913, provided for
review of certain orders of the Interstate Commerce Commission by
specially constituted three-judge district courts, and provided for
direct appeal as of right to the Supreme Court.  38 Stat. 220.  In
time, the Act was applied to certain orders of the Secretary of
Agriculture under the Packers and Stockyards Act, 7 U.S.C. (1940 ed.)
217, the Maritime Commission under the Shipping Act of 1916, 46 U.S.C.
(1940 ed.) 830, and the Federal Communications Commission under the
Federal Communications Act of 1934, 47 U.S.C. (1940 ed.) 402(a).

   Legislation transferring review to the regular courts of appeals
and limiting Supreme Court review to certiorari was introduced in
1947, but failed to pass.  H.R. Rep. 2122 at 3.  In 1950 the Hobbs Act
effected the desired changes for orders of the Secretary of
Agriculture, the FCC, and the Maritime Commission.  64 Stat. 1129.
Review of ICC orders under the three-judge district court system was
not abolished until 1975.  Pub. L. No. 93-584, 88 Stat. 1917.

   /23/ See AEA Hearings 117-118 (2 Leg. Hist. 1751-1752);  Green, The
Law of Reactor Safety, 12 Vand. L. Rev. 115, 122 (1958);  H. Marks &
G. Trowbridge, Framework for Atomic Industry:  A Commentary on the
Atomic Energy Act of 1954, at 77 (1955).

   /24/ See, e.g., Tomah-Mauston Broadcasting Co. v. FCC, 306 F.2d 811
(D.C. Cir. 1962);  CBS v. FCC, 211 F.2d 644, 646-647 (D.C. Cir. 1954);
 Radio Station WOW, Inc. v. FCC, 184 F.2d 257, 258-259 (D.C. Cir.
1950).  Cf. Columbus Broadcasting Coalition v. FCC, 505 F.2d 320,
322-324 (D.C. Cir. 1974).

   /25/ 47 U.S.C. (Supp. V 1951) 402(a);  CBS v. FCC, 211 F.2d at 647;
 Radio Station WOW, Inc. v. FCC, 184 F.2d at 259-260.  Cf. Providing
for the Review of Orders of Certain Agencies, and Incorporating into
the Judicial Code Certain Statutes Relating to Three-Judge District
Courts:  Hearings on H.R. 1468, H.R. 1470, and H.R. 2271 Before
Subcomm. No. 3 and Subcomm. No. 4 of the House Comm. on the Judiciary
(Hobbs Act Hearings), 81st Cong., 1st Sess. 71 (1949).  See also
Hubbard Braodcasting, Inc. v. FCC, 684 F.2d 594 (8th Cir. 1982), cert.
denied, No. 82-772 (Feb. 22, 1983) (dismissal of petition for
rulemaking);  Hobbs Act Hearings 71 (same).

   The proper path for judicial review was not crystal clear.  But
those cases that were not reviewable in a three-judge district court
could be taken directly to the Court of Appeals for the District of
Columbia Circuit.  47 U.S.C. (1946 ed.) 402(b);  Hobbs Act Hearings
71-72;  cf. Tomah-Mauston Broadcasting Co. v. FCC, 306 F.2d at
812-813.

   /26/ When the statute governing the agency's procedure does not
require the holding of a hearing, but a genuine issue of material fact
is presented, the Act provides for transfer of the proceedings to the
district court.  28 U.S.C. 2347(b)(3).  This provision is seldom used.
 For a rare example, see Lake Carriers' Ass'n v. United States, 414
F.2d 567 (6th Cir. 1969).

   /27/ Although the case involved the denial of a petition for
rulemaking rather than the denial of a request for license revocation,
the difference is not significant for purposes of the issue here.
Section 189 of the Atomic Energy Act deals with review of final orders
entered in "any proceeding * * * for the granting, suspending,
revoking, or amending of any license or construction permit, * * * and
* * * any proceeding for the issuance or modification of rules and
regulations dealing with the activities of licensees" (42 U.S.C.
2239).  Since the court here restricted court of appeals review to
orders entered in "formal 'proceedings'" (Pet. App. 11), denial of a
rulemaking petition without a hearing would -- like this case -- go in
the first instance to the district court.

   The differences between denial of a petition for rulemaking and
denial of a request for license revocation are no more significant for
purposes of discerning Congress's intent about the appropriate forum
for review.  Section 189 treats both kinds of orders alike.  And if
Congress intended that FCC denials of rulemaking petitions be reviewed
in the courts of appeals (even where no hearing was held), it is safe
to assume that it envisioned similar treatment for similar NRC orders
when it said that they too were to be governed by the Hobbs Act.

   /28/ Even after a hearing is held the NRC may decide to take no
action against the licensee.  In that event one has the rather
capricious result that similar decisions (to take no action affecting
a license) by the same body are reviewable in different courts,
depending on the stage of the proceedings at which a decision is
rendered.

   /29/ A February 9, 1984 order issued by the court in Rodriguez
actually makes the matter more confusing still.  The challenge to the
license amendment was dismissed as untimely, and the petition for
review of the denial of the Section 2.206 request was dismissed with a
citation to this case.  The court of appeals went on to hold, however,
that "the issue of whether the petition may properly be regarded as a
request for public hearing, in a pending license modification
proceeding, under 42 U.S.C. Section 2239(a) must be considered" in the
court of appeals.  The lesson seems to be that when a Section 2.206
request is denied, that order may itself be reviewed simultaneously in
the district court and the court of appeals if the petition for review
is phrased artfully enough.  We have reproduced the February 9, 1984
Rodriguez order at App., infra, 1a-2a.

   A joint motion to dismiss was filed in Rodriguez on May 18, 1984,
and granted by the court of appeals on May 25, 1984.

   /30/ We recognize that orders denying Section 2.206 requests,
because they in essence decline to pursue enforcement action, do not
in themselves contribute to the problem of delay.  Nor would the
process of review do so unless at some point the order was overturned.
 But as we note below, page 40, one of the drawbacks of district court
review is the higher probability of an incorrect decision doing just
that, rendered by "a district court with little knowledge of an
agency's work (that is) required to handle an odd case." Jaffe, supra,
at 159.  Moreover, it cannot be ignored that the pendency of
litigation itself -- because an unfavorable outcome portends costs of
compliance -- has an impact on the cost of operation and a utility's
ability to finance construction.

   /31/ Moreover, as we pointed out above (page 4 & note 4), the
Commission will typically publish notice that a request has been
received;  and comments submitted in response to the notice become
part of the record on review.

   /32/ Recent decisions by this Court have made clear, in any event,
that the informality of agency action is not in itself a sufficient
reason for eschewing court of appeals review.  See, e.g., FCC v. ITT
World Communications, Inc., slip op. 4-5;  Harrison v. PPG Industries,
Inc., 446 U.S. at 583, 592-594.  That is largely because the Hobbs Act
provides a mechanism for supplementing the record where it is
deficient, by remanding the case to the agency.  28 U.S.C. 2347(b)(1)
and (c).

   APPENDIX