UNITED STATES NUCLEAR REGULATORY COMMISSION AND THE UNITED STATES
OF AMERICA, PETITIONERS V. JOETTE LORION, ET AL.

   No. 83-1031

   In the Supreme Court of the United States

   October Term, 1983

   The Solicitor General, on behalf of the United States Nuclear
Regulatory Commission and the United States of America, petitions for
a writ of certiorari to review the decision of the United States Court
of Appeals for the District of Columbia Circuit in this case.

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

                       PARTIES TO THE PROCEEDING

   In addition to the parties listed in the caption, Florida Power &
Light Company participated as intervenor in the court of appeals.  It
has filed a separate petition.  Florida Power & Light Company v.
Lorion, et al., No. 83-703.

            TABLE OF CONTENTS
   Opinions below
   Jurisdiction
   Statutes and regulations involved
   Statement
   Reasons for granting the petition
   Conclusion
   Appendix

                            OPINIONS BELOW

   The opinion of the court of appeals (83-703 Pet. App. 1-15) /1/ is
reported at 712 F.2d 1472.  The decision of the Director of the Office
of Nuclear Reactor Regulation is reported at 14 N.R.C. 1078.

                             JURISDICTION

   The judgment of the court of appeals (App., infra, 1a-2a) was
entered on July 26, 1983.  A petition for rehearing was denied on
September 22, 1983 (App., infra, 3a-5a).  The jurisdiction of this
Court is invoked under 28 U.S.C. 1254(1).

                   STATUTES AND REGULATIONS INVOLVED

   28 U.S.C. (& Supp. V) 2342 is reproduced at 83-703 Pet. App. 26.
Section 189 of the Atomic Energy Act of 1954, 42 U.S.C. 2239, is
reproduced at 83-703 Pet. App. 26-28.  10 C.F.R. 2.202 and 2.206 are
reproduced at 83-703 Pet. App. 28-31.

                          QUESTION PRESENTED

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

                               STATEMENT

   1. 28 U.S.C. (Supp. V) 2342(4) 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)) provides that

      (i)n 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. (Supp. V)
      2342(4)).

   NRC regulations permit the Director of Nuclear Reactor Regulation
to start a proceeding for suspending, revoking, or amending a license
by serving on the licensee an order to show cause alleging the
violations with which the licensee is charged.  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.  Requests must specify what action is desired, and must
set forth supporting facts.  10 C.F.R. 2.206(a).  The Director is then
required, within a reasonable time, either to institute a proceeding
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., 2 N.R.C. 173,
176 (1975).  In deciding whether to issue a show cause order the
Director need not conduct a 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 licensee
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.  Respondent claimed that the plant's steam
generator tubes needed to be inspected immediately for possible leaks.
 She also asked that the Commission consider suspending the plant's
operating license because of concerns over the safety of the reactor
pressure vessel.

   Upon the receipt of such requests the NRC typically publishes a
notice of receipt in the Federal Register so that comments may be
submitted, /2/ and refers the request for investigation to the office
charged with regulation of the activities complained of.  In cases
where it appears that the issues raised warrant less elaborate
proceedings, the Commission may dispense with publication of notice.
See 42 Fed. Reg. 36239 (1977).  In this case the Commission followed
the latter procedure.  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 (83-703 Pet. App. 2-3).

   The Director reviewed 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.  83-703 Pet. App. 17, quoting Florida Power & Light Co.
(Turkey Point Plant, Unit 3), 12 N.R.C. 386, 388 (1980).  In addition,
the Director examined the question of thermal shock of reactor
pressure vessels and actions by the NRC staff and the utility for
dealing with that issue at Unit 4.

   On the basis of a 547-page record, the Director issued a decision
on November 5, 1981 denying respondent's request.  /3/ He concluded
that the issue of shutting down the plant for inspection of its steam
generator tubes was moot, since that very action had been taken on
October 18, 1981 (83-703 Pet. App. 19).  He also 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).

   3. When the Commission declined to disturb the Director's decision,
respondent filed a petition for review in the court of appeals
pursuant to 28 U.S.C. (Supp. V) 2342(4) and Section 189(b) of the Act.
 She argued, among other things, 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 had raised the
issue, the court of appeals held that it lacked jurisdiction to review
the denial of respondent's request.

   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. Section
2239(a)" (83-703 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).  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 (83-703 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);
 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 (83-703 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 (83-703 Pet. App. 10-11).  See 28 U.S.C. (Supp. V)
1331.

   The court accordingly transferred the case to the district court
pursuant to 28 U.S.C. 1631 (83-703 Pet. App. 15).  The government
sought rehearing en banc on the question of jurisdiction, but its
request was denied (App., infra, 3a-5a).  /4/

                   REASONS FOR GRANTING THE PETITION

   The decision of the court of appeals in this case conflicts with
the decisions of every other court that has considered the question of
jurisdiction to review NRC denials of Section 2.206 requests.  The
unanimous conclusion of those other courts -- that exclusive
jurisdiction lies in the courts of appeals -- is not only consistent
with the language of Section 189, but is also supported by compelling
practical considerations.  The court of appeals' contrary conclusion
in this case will inevitably create confusion in all future litigation
involving denials of Section 2.206 requests, and may introduce similar
uncertainty about the appropriate forum for review of other types of
final orders by the Commission.

   1. The decision in this case conflicts squarely with decisions in
the Second and Seventh Circuits.  /5/ It also departs from a
consistent line of contrary authority within the District of Columbia
Circuit.  /6/ In addition, it is inconsistent with 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.
/7/ Finally, it conflicts with decisions in every district court that
has considered the problem.  /8/

   a. The interpretation of Section 189 adopted by every court but the
court of appeals here is consistent with the language of the statute.
Section 189(b) makes reviewable in the courts of appeals "(a)ny final
order entered in any proceeding of the kind specified in subsection
(a) of this section." And among the "proceedings" specified in
subsection (a) is "any proceeding * * * for the * * * suspending * * *
of any license." Section 189(a) does not, as the court below 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 reuqest 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.  For example, 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, No. 82-1932 (D.C.
Cir. Sept. 23, 1983) (amended Oct. 7, 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
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 concluded that no substantial health or safety issues
warranting further proceedings had been raised and declined to issue a
Section 2.202 order, i.e., terminated the proceeding short of a
hearing.

   The distinction between "proceeding" and "hearing" may be seen by
analogy to the right of jury trial.  Just as Section 189(a) says that
"In any proceeding * * * the Commission shall grant a hearing," so the
Seventh Admendment says that "in Suits at common law * * * the right
of trial by jury shall be preserved * * *" (U.S. Const. Amend. VII).
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 never ripened into the kind of "proceeding" specified in
Section 189 -- only that there was no substantial health or safety
issue to warrant going further, or that no hearing was requested.

   This common sense understanding of when a "proceeding" begins is
the one adopted by the Second and Seventh Circuits:  "a determination
under 10 C.F.R. Section 2.206 to initiate a license-revocation
proceeding is a necessary first step in that proceeding." Rockford
League of Women Voters v. NRC, 679 F.2d at 1221;  County of Rockland
v. NRC, 709 F.2d at 774.  /9/

   b. The interpretation given by other courts to the jurisdictional
provision of Section 189 is not only consistent with the language of
the statute but is also, as Professor Davis has noted, "highly
practical." 4 K. Davis, Administrative Law Treatise Section 23.5, at
140 (1983).  Holding that denials of Section 2.206 requests are
reviewable in district court creates the anomaly that the proper forum
for review will depend on whether the request is granted or denied.
(In the former case, review would lie in the court of appeals even
under the D.C. Circuit's construction of Section 189(a), since a
hearing would ordinarily be held.  See 10 C.F.R. 2.202.)

   More important, there is a real possibility of bifurcated review
when the Section 2.206 denial is closely related to another NRC order
which is reviewable in the court of appeals.  That is the case, for
example, in Rodriguez v. NRC, No. 83-1805 (D.C. Cir.), where the
petitioner is challenging both a Section 2.206 denial and an
immediately effective license amendment.  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).  But it makes
little sense to risk simultaneous and contrary outcomes in such cases,
and to engage in an unnecessary duplication of judicial effort.  See
Currie & Goodman, Judicial Review of Federal Administrative Action:
Quest for the Optimum Forum, 75 Colum. L. Rev. 1, 60 (1975);
Environmental Defense Fund, Inc. v. Hardin, 428 F.2d 1093, 1098-1099
(D.C. Cir. 1970).

   Even where there is no risk of simultaneous district and appellate
court review of the same question, there is little to be gained 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." There
is no need in the case of Section 2.206 denials for the kind of
fast-sifting 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 (83-703 Pet. App. 16-25).  There may also be a similar decision
by the full Commission.  10 C.F.R. 2.206(c).  The questions on
judicial review of that decision 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
Anit-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).

   Expenditure of district court resources is particularly inefficient
in cases like this, involving complex regulatory statutes and
administrative schemes with which the courts of appeals are more
familiar.  They have, after all, developed a reservoir of experience
in this area because litigation involving NRC license orders and
rulemaking proceedings -- under the terms of Section 189 -- typically
bypasses the district courts.  /10/

   c. These kinds of considerations explain the division of authority
between district courts and courts of appeals under statutory schemes
like the Atomic Energy Act.  Perhaps the closest parallel may be found
in Section 402 of the Communications Act, 47 U.S.C. 402, which
provides for judicial review of FCC orders (Section 402(a)) and
licensing actions (Section 402(b)) in the courts of appeals.  That
section requires, for example, that the denial of a petition to revoke
a construction permit, or of a petition to deny a license renewal, is
reviewable in the court of appeals even where no hearing has been
held.  See Columbus Broadcasting Coalition v. FCC, 505 F.2d 320,
322-324 (D.C. Cir. 1974);  Tomah-Mauston Broadcasting Co. v. FCC, 306
F.2d 811 (D.C. Cir. 1962).  The same is true of an FCC dismissal of a
petition for rulemaking.  Hubbard Broadcasting, Inc. v. FCC, 684 F.2d
594 (8th Cir. 1982), cert, denied, No. 82-772 (Feb. 22, 1983).  See
also Cook, Inc. v. United States, 394 F.2d 84 (7th Cir. 1968)
(Communications Act);  Environmental Defense Fund, Inc. v. Hardin, 428
F.2d 1093, 1098-1099 (D.C. Cir. 1970) (denial of petition for
suspension of registration under the Federal Insecticide, Fungicide,
and Rodenticide Act);  Environmental Defense Fund, Inc. v.
Ruckelshaus, 439 F.2d 584 (D.C. Cir. 1971) (same).

   2. The court of appeals' decision to remit review of Section 2.206
denials to the district courts not only ignores these sound reasons
for initial review at the appellate level, but also creates
jurisdictional confusion for a number of final orders issued by the
NRC.  One symptom of that confusion is the opportunity for
forum-shopping created by the conflict among various circuits.  28
U.S.C. 2343 -- which governs venue in cases for which 28 U.S.C. (&
Supp. V) 2342 lays jurisdiction in the courts of appeals -- states
that "(t)he venue of a proceeding under this chapter is in the
judicial circuit in which the petitioner resides or has its principal
office, or in the United States Court of Appeals for the District of
Columbia Circuit." That means that a petitioner who resides in the
Second or Seventh Circuit can get initial appellate review there, or
may proceed in district court (and get two tiers of review) by filing
in the District Court of Columbia Circuit.  /11/

   This unnecessary jockeying over venue and jurisdiction will now be
a matter of course in review of Section 2.206 denials.  Petitions for
judicial review of denials have historically not been numerous, though
Section 2.206 requests themselves have been;  and the recent increase
in such requests, coupled with the opportunity for district court as
well as court of appeals review, can be expected to intensify the
significance of the court's decision in this case.  /12/

   The impact of the decision is not limited to denials of Section
2.206 requests, however, since Section 189 of the Act also governs
judicial review of final orders "in any proceeding for the issuance or
modification of rules and regulations dealing with the activities of
licensees" (NRC Authorization Act, Pub. L. No. 97-415, Section 12, 96
Stat. 2073 (to be codified at 42 U.S.C. 2239(a)(1))).  Thus, a
Commission denial of a petition for rulemaking would seem to be
reviewable in district court in the District of Columbia Circuit, and
in the courts of appeals elsewhere.  This is so even though such
denials (like the denial in this case) are generally explained in
detail and supported by a record, and even though an NRC decision to
promulgate a rule is reviewable exclusively in the courts of appeals.
See Consumer Energy Council v. FERC, 673 F.2d 425, 439 (D.C. Cir.
1982), aff'd, Nos. 81-2008 et al. (July 6, 1983) (denial of rulemaking
petition reviewable in court of appeals);  Honicker v. NRC, 679 F.2d
261 (Table) (D.C. Cir. (1982)), cert. denied, No. 82-429 (Oct. 18,
1982) (denial of petition for rulemaking);  Siegel v. AEC, 400 F.2d
778 (D.C. Cir. 1968) (review of rulemaking).

   Still another example of jurisdictional uncertainty is provided by
a related action respondent is now pursuing in district court.  Center
for Nuclear Responsibility and Joette Lorion v. NRC, No. 83-3570
(D.D.C.).  In that litigation respondent seeks review of the
Commission's decision that "no significant hazards consideration" is
involved in certain amendments to Florida Power & Light Company's
operating license (see 48 Fed. Reg. 45862 (1983)).  /13/ The
Commission's decision allows the amendments to become immediately
effective, before a hearing has been held (Pub. L. No. 97-415, Section
12, 96 Stat. 2073 (to be codified at 42 U.S.C. 2239(a)(2)).  But
because the decision that "no significant hazards consideration" is
involved normally precedes any hearing on the amendments, respondent
has argued that that decision is not a "proceeding" under Section
189(a), and hence is reviewable in the district court rather than the
court of appeals.  That contention, if accepted, could affect the
choice of forum in a number of actions.  It would also present further
opportunities for bifurcated review, since there is no doubt that
jurisdiction over later challenges to the amendments themselves lies
in the courts of appeals.  /14/

   These consequences are unwarranted.  The language of Section 189,
though not precise, amply supports the sensible interpretation given
to it by every court except the District of Columbia Circuit.  The
wayward conclusion of the court of appeals in this case will engender
jurisdictional confusion among parties seeking review of Commission
decisions, and entail a significant waste of both NRC and judicial
resources.

                              CONCLUSION

   The petition for a writ of certiorari should be granted.

   Respectfully submitted.

   REX E. LEE

      Solicitor General

   LOUIS F. CLAIBORNE

      Deputy Solicitor General

   JOHN H. GARVEY

      Assistant to the Solicitor General

   HERZEL H.E. PLAINE

      General Counsel

   MARTIN G. MALSCH

      Deputy General Counsel

   E. LEO SLAGGIE

      Acting Solicitor

   RICHARD P. LEVI

      Attorney Nuclear Regulatory Commission

   DECEMBER 1983

   /1/ Because the petition for a writ of certiorari filed by Florida
Power & Light Company reproduces most of the materials required by
Rule 21(k), we refer to the appendix to that petition, rather than
duplicate the materials found there.  We have, however, reproduced the
judgment below and the orders denying rehearing, missing from the
petition in 83-703.  App., infra.

   /2/ To date in 1983 the Commission has received 24 petitions under
Section 2.206.  In 16 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 (1983).

   Section 2.206 requests may at times lead to rather elaborate,
though informal, proceedings.  For example, in In re Public Service
Co. of Indiana (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
request by the Commission for further comments, and a supplemental
Section 2.206 denial.

   /3/ Portions of the record are reproduced at C.A. App. 1-164.

   /4/ There is no question about the government's right to seek
certiorari even though the only immediate consequence of the court's
decision is the transfer of an action filed by respondent.  See
Harrison v. PPG Industries, Inc., 446 U.S. 578 (1980).

   /5/ County of Rockland v. NRC, 709 F.2d 766, 774 (2d Cir. 1983),
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).

   /6/ Seacoast Anti-Pollution League v. NRC, 690 F.2d at 1027-1028;
Natural Resources Defense Council, Inc. v. NRC, supra.  See also
Porter County Chapter of the Izaak Walton League v. NRC., supra
(accepting jurisdiction without considering the question).

   /7/ 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).

   /8/ 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).

   /9/ The language ultimately used in Section 189 lies midway between
two unenacted proposals introduced in 1954.  One would have given the
courts of appeals jurisdiction over suits to "enjoin, set aside, annul
or suspend any order of the Commission." H.R. 8862, 83d Cong., 2d
Sess. Section 189 (1954) (emphasis added).  The other would have
permitted review only of orders "granting, denying, suspending,
revoking, modifying or rescinding any license." H.R. 9757, 83d Cong.,
2d Sess. Section 189 (1954).  The enacted version allows review of
"(a) ny final order entered in any proceeding" (Section 189(b)) "for
the granting, suspending, revoking, or amending of any license"
(Section 189(a)).

   The committee reports shed little light on the reason for the
choice of language.  See H.R. Rep. 2181, 83d Cong., 2d Sess. 85
(1954);  S. Rep. 1699, 83d Cong., 2d Sess. 85 (1954);  H.R. Conf. Rep.
2666, 83d Cong., 2d Sess. 40 (1954);  100 Cong. Rec. 10685-10686
(1954).  The parallel that would most naturally have occurred to
Congress, however, is Section 402 of the Communications Act (47 U.S.C.
402), which had just recently been amended.  Act of July 16, 1952,
Pub. L. No. 554, Section 14, 66 Stat. 718.  See S.3323 and H.R. 8862,
To Amend the Atomic Energy Act of 1946:  Hearings Before the Joint
Comm. on Atomic Energy, 83d Cong., 2d Sess., reprinted in II AEC,
Legislative History of the Atomic Energy Act of 1954, at 1751 (1955);
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).  As we explain below,
page 14, that Act provides for exclusive review in the courts of
appeals of FCC orders (47 U.S.C. 402(a)) and licensing actions (47
U.S.C. 402(b)), including denials of requests for action like the one
at issue here.  The District of Columbia Court concluded in an earlier
case, after reviewing these materials, that the interpretation of
Section 189 which it now rejects "is fully consistent with this
history." Natural Resources Defense Council, Inc. v. NRC, 606 F.2d at
1265 n.11.

   It is also worthy of note that although Congress amended Section
189 of the Atomic Energy Act in 1983, see note 13, infra, 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).

   /10/ Another justification sometimes offered for multiple tiers of
judicial review (claims under the Social Security Act are a prominent
example) is that the district courts may perform a "vital screening
role * * * in holding down the volume of appellate litigation * * *."
Currie & Goodman, supra, 75 Colum. L. Rev. at 6.  That service is of
less importance here, where two levels of agency consideration of
Section 2.206 requests reduce to manageable proportions the number of
cases ultimately taken to court.  See note 12, infra.

   /11/ The matter is in fact slightly more confusing.  Within the
District of Columbia Circuit 28 U.S.C. 2343 is not the applicable
venue provision, since 28 U.S.C. (Supp. V) 2342(4) is not seen as a
basis for jurisdiction.  Because cases in the District of Columbia
Circuit must now be filed in district court, the relevant venue
provision would be 28 U.S.C. 1391(e), which states:

      A civil action in which a defendant is an officer or employee of
      the United States or any agency thereof acting in his official
      capacity or under color of legal authority, or an agency of the
      United States, or the United States, may, except as otherwise
      provided by law, be brought in any judicial district in which
      (1) a defendant in the action resides, or (2) the cause of
      action arose, or (3) any real property involved in the action is
      situated, or (4) the plaintiff resides if not real property is
      involved in the action.

   Venue under that statute would be proper in the United States
District Court for the District of Columbia, since the NRC "resides"
there.  But it is noteworthy that Section 1391(e) also refers a
plaintiff to venues where the district courts would not accept
jurisdiction.

   /12/ We are informed by the NRC that between 1974 and December 16,
1983 it received 203 Section 2.206 requests.  Of those 203 requests,
however, 152 were filed within the last 5 years.  Judicial review has
been sought in only eight cases where the request was denied;  but six
of those eight cases were decided within the last two years, or are
still pending.  Since the court of appeals' decision in this case, the
NRC has had to address the issue of jurisdiction in at least three
other pending cases.  Rodriguez v. NRC, No. 83-1805 (D.C. Cir.)
(petition for review of Section 2.206 denial);  Board of Commissioners
v. Nuclear Assurance Corp., No. C 83-3877 (N.D. Ohio) (action to
enjoin shipment of spent reactor fuel);  Society for the Protection of
the Environment, Inc. v. NRC, No. C 83-538 (D.N.H.) (injunctive action
to suspend construction permit).

   /13/ The finding of "no significant hazards consideration" was made
in conformity with amendments to Section 189(a) enaction earlier this
year.  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 license amendments not involving
significant hazards considerations.  In April, 1983, the NRC published
regulations to implement the amendment.  48 Fed. Reg. 14873;  see Pub.
L. No. 97-415, Section 12, 96 Stat. 2073 (to be codified at 42 U.S.C.
2239(a)(2)(C)).

   /14/ We are informed by the NRC that in the six months following
adoption of its "Sholly" regulations in April, 1983 (see note 13,
supra), "no significant hazards consideration" determinations were
made in six cases where hearings were requested on the underlying
license amendment.

                               APPENDIX

   APPENDIX MATERIAL IS NOT AVAILABLE ON JURIS.