1

 Bullcreek v. NRC, No. 03-1018 (D.C. Cir.); Connecticut Coalition Against Millstone v. NRC,

No. 03-4372 (2d Cir.); McGee v. NRC, No. 03-60245 (5th Cir.) Northern Calif. Power Agency v.

NRC, Nos. 03-1038 & 03-1184 (D.C. Cir.); Riverkeeper v. Collins, No. 03-4313 (2d Cir.); Public

Citizen v. NRC, No. 03-1181 (D.C. Cir.); San Luis Obispo Mothers for Peace v. NRC, No. 03-

74628 (9th Cir.); State of Nevada v. NRC, No. 03-1058 (D.C. Cir.); State of Utah v. NRC, No.

03-1022 (D.C. Cir.).

 2 Cheh v. Diaz, No. 8:03-cv-02414-AW (D. Md.); Westinghouse Electric Co. v. United

States, No. 4:03-CV-00861 (DDN) (E. D. Mo.)

 3 Pacific Gas & Elec. Co. v. People of the State of Calif., No. 02-16990 (9th Cir.); Skull Valley

Band of Goshute Indians v. Leavitt, No. 02-4149 (10th Cir.).

 4 McGee v. NRC, No. 03-60245 (5th Cir.); Ohngo Gaudadeh Devia v. NRC, No. 02-9583

(10th Cir.); Parents Concerned About Indian Point v. NRC, No. 02-4243 (2d Cir.); Syms v. Olin

Corp., No. 00-CV-732A (W.D.N.Y.); Westinghouse Elec. Co. v. Unites States, No. 99-1015C

(U.S. Court of Federal Claims).

ADJUDICATORY ISSUE

INFORMATION

January 30, 2004 SECY-04-0014

FOR: The Commission

FROM: John F. Cordes, Jr. /RA/

 Solicitor

SUBJECT: ANNUAL REPORT ON COURT LITIGATION (CALENDAR YEAR 2003)

PURPOSE: To Inform the Commission of the Status of Litigation in the Courts

DISCUSSION: 

Attached is a report updating events in NRC court litigation since my last cumulative annual

report dated February 6, 2003 (SECY-03-0018). This report reflects the status of NRC cases in

court as of January 29, 2004. 

During the reporting period (calendar year 2003), the Commission or its officials were sued ten

times in the courts of appeals,1

 and twice in federal district court.2 The NRC also participated in

two cases as amicus curiae.

3

 During this same one-year period five cases were closed.4 The

14 new court cases in 2003 are roughly in line with what we have come to expect. There were 

8 new cases in 2002, 5 new cases in 2001, 9 in 2000, 15 in 1999, 12 in 1998, 4 in 1997, 
- 2 -

 5 Connecticut Coalition Against Millstone v. NRC, No. 04-0109 (2d Cir.); State of Oklahoma

v. NRC, No. 04-9503 (10th Cir.); Citizens Awareness Network v. NRC, No. 04-1145 (1st Cir.)

10 in 1996, 16 in 1995, and 19 in 1994, for an average of roughly 11 new cases per year over

the past decade. Thus far in 2004 the NRC has been sued three times.5

 

We also handled 14 requests (so-called "Touhy" requests) for NRC testimony, depositions or

other evidence for use in private litigation in 2002. The 14 Touhy requests in 2003 are up from

last year’s total of 8, but in line with recent trends. Several years ago we typically saw 20-30

Touhy requests per year. More recently the numbers have been 10-15. 

 

Attachment: Litigation Status Report
 6 For statistical purposes, we list as “active” any case that was pending before a court as of

January 1, 2004. The narratives accompanying each listed case include post-January 1

developments, but this annual litigation report does not include the three new cases so far filed

in 2004, Connecticut Coalition Against Millstone v. NRC, No. 04-0109 (2d Cir.) and State of

Oklahoma v. NRC, No. 04-9503 (10th Cir.); Citizens Awareness Network v. NRC, No. 04-1145

(1st Cir.).

LITIGATION STATUS REPORT

 As of January 29, 2004

ACTIVE CASES6

Bullcreek v. NRC, Nos. 03-1018 & 03-1022 (D.C. Cir.)

These consolidated lawsuits, filed by dissident Goshute Indians and by the State of Utah,

challenge the NRC’s authority to license away-from-reactor ISFSIs. A nuclear industry

consortium, Private Fuel Storage, seeks an NRC license for such a facility on Goshute land in

Utah. Petitioners argue that the Commission, in CLI-02-29, 56 NRC 390 (2002), wrongfully

turned down a petition for rulemaking. The petition asked the Commission to “make clear” that

under the Nuclear Waste Policy Act the NRC lacks authority to license away-from-reactor

ISFSIs. The Commission found that the NWPA did not take away the agency’s authority to

license such facilities.

The court heard oral argument on January 16, 2004. We are awaiting a decision.

CONTACT: Grace H. Kim

 415-3605

California Public Utilities Commission v. NRC, No. 02-72735 (9th Cir.)

This lawsuit challenges a Commission adjudicatory decision that rejected petitions to intervene 

in the Diablo Canyon license transfer proceeding. The petitioners are the California Public

Utility Commission and the County of San Luis Obispo. 

The Commission found the CPUC’s concerns primarily economic, not justifying standing in an

NRC license transfer proceeding. The Commission also ruled that CPUC had failed to set out

litigable safety contentions. As for the County, the Commission found that its contentions, like

CPUC’s, lacked foundation, and that the County in any event had filed its contentions too late.

We filed our brief in the court of appeals in early 2003. The court subsequently decided to hold

the case in abeyance pending possible settlement of a related bankruptcy case.

CONTACT: Jared K. Heck

 415-1623
- 2 -

Cheh v. Diaz, No. 8:03-cv-02414-AW (D. Md.)

This personnel lawsuit complains of discrimination and reprisal. The government has sought

summary judgment. NRC lawyers are working with the United States Attorney’s office in

Baltimore on this case.

CONTACT: Marvin L. Itzkowitz

 415-1566

Connecticut Coalition Against Millstone v. NRC, No. 03-4372 (2d Cir.)

This lawsuit challenged a Commission adjudicatory decision, CLI-02-22, 56 NRC 213 (2002),

rejecting a hearing contention based on Millstone’s “loss” of spent fuel rods some years ago. 

Petitioner had urged the NRC to deny a license amendment expanding Millstone’s spent fuel

pools. We moved to dismiss the petition for review on the jurisdictional ground that the petition

failed to name the Commission’s final adjudicatory order, as required by the Federal Rules of

Appellate Procedure and the Hobbs Act.

After oral argument, the court of appeals agreed with our position, and in a summary order

dismissed the case. The court later denied a rehearing petition. 

Petitioner filed a timely petition for a writ of certiorari, but the Supreme Court declined to accept

it on technical grounds (not signed by member of the Supreme Court bar). Petitioner has until

February to cure the defect.

CONTACT: Charles E. Mullins

 415-1618

Joosten v. Meserve, No.8:02-cv-02668-PJM (D. Md.)

This is a suit claiming unlawful age discrimination in employment. It was removed from state to

federal court. The NRC, working with the U.S. Attorney’s office, obtained partial summary

judgment, and discovery is proceeding on the rest of the case.

CONTACT: Marvin L. Iztkowitz

 415-1566

Khoury v. Meserve, No. 02 CV 3511 (D. Md.), aff’d No. 03-1865 (4th Cir., Jan. 23, 2004)

This is a Title VII lawsuit claiming gender and national origin discrimination in employment. The

district court ruled for the NRC, dismissing some claims and entering summary judgment on

others. The United States Court of Appeals for the Fourth Circuit recently affirmed.

CONTACT: Maryann Grodin, OIG

 415-5945
- 3 -

Massachusetts General Hospital v. United States, No. 01-434 C (U.S. Court of Federal

Claims)

This is one of three companion Price-Anderson lawsuits seeking government reimbursement

for damages, attorney’s fees, and costs incurred in a private tort suit. Millions of dollars in

Price-Anderson claims are at stake in the three cases.

The underlying private tort suit, Heinrich v. Sweet, arose out of alleged medical misuse of an

NRC-licensed research reactor at MIT. The reactor was used (decades ago) for “boron neutron

capture therapy,” which allegedly harmed rather than helped cancer patients. The United States

Court of Appeals for the First Circuit ruled last year that plaintiffs were not entitled to damages,

and the Supreme Court denied certiorari. Massachusetts General claims reimbursement from

the government for its substantial legal fees and costs under a 1959 indemnity agreement

between MIT and the Atomic Energy Commission. 

We are working with the Department of Justice on the defense of this lawsuit, along with two

companion suits (MIT v. United States and Sweet v. United States). In 2002, the Claims Court

(Firestone, J.) rejected our argument (set out in a summary judgment motion) that PriceAnderson does not cover what are, in essence, medical malpractice claims. Further progress in

the case was delayed to await Supreme Court action on the petition for a writ of certiorari in the

underlying tort case, Heinrich v. Sweet. 

We now have filed a memorandum of law with the Claims Court that offers various reasons why

Mass General and the other plaintiffs are not entitled to collect legal defense costs in the

circumstances of this case. Ultimately, the government may appeal the Claims Court’s

threshold ruling that Price-Anderson applies to cases like this.

CONTACT: Marjorie S. Nordlinger

 415-1616 

Massachusetts Institute of Technology v. United States, No. 00-292 C (United States Court

of Federal Claims)

This lawsuit, a companion to Sweet v. United States and Massachusetts General Hospital v.

United States, seeks Price-Anderson reimbursement of attorney’s fees and costs incurred in

defending a tort suit, Heinrich v. Sweet, arising out of alleged medical misuse of a research

reactor at MIT. The Claims Court judge rejected our argument that such claims fall outside

Price-Anderson. As explained above (in the discussion of Massachusetts General Hospital),

the Claims Court rejected our threshold argument on Price-Anderson’s applicability, and we

currently are pursing other defenses. We are collaborating with Department of Justice

attorneys in defending this case. 

CONTACT: Marjorie S. Nordlinger

 415-1616
- 4 -

Northern California Power Agency v. NRC, Nos. 03-1038 & 03-1184 (D.C. Cir.)

These closely-related (but not yet consolidated) lawsuits challenge: (a) a Commission

adjudicatory decision, CLI-03-02, 57 NRC 19 (2003), rejecting challenges to the proposed

transfer of the license for the Diablo Canyon nuclear power reactor, and (b) the NRC staff order

implementing the transfer. The Commission decision refused to carry over antitrust conditions

to new entities that would come into existence after the license transfer. Petitioner supports

retaining the conditions. 

The underlying license transfer remains in limbo because of ongoing bankruptcy proceedings

involving Diablo Canyon’s owner, Pacific Gas & Electric Company. Hence, the court of appeals

has held both of these lawsuits in abeyance.

CONTACT: Grace H. Kim

 415-3605

Pacific Gas & Elec. Co. v. People of the State of Calif., No. 02-16990 (9th Cir.)

In this bankruptcy case we worked with the Justice Department on an amicus curiae brief

arguing that federal bankruptcy law does not override state or federal laws on the environment

or on health and safety. The case is an offshoot of PG&E’s well-known (and still pending)

bankruptcy proceeding. The court of appeals agreed with our position. The court ruled that

bankruptcy law does not expressly preempt laws (federal or state) on the environment or on

health and safety. The court left open the question whether there may be “implied preemption”

in particular circumstances.

Usefully, the court decision referred expressly to the problem of preempting the NRC’s licensing

authority. A rehearing petition is pending.

CONTACT: John F. Cordes

 415-1956

Riverkeeper v. Collins, No. 03-4313 (2d Cir.)

This lawsuit challenges a decision by the Director of the Office of Nuclear Reactor Regulation to

reject (in part) a petition for enforcement under 10 C.F.R. § 2.206. The 2.206 petition sought,

among other things, the shutdown of the Indian Point reactors because of the threat of airborne

terrorism. We have argued that the courts cannot review NRC 2.206 decisions like this one on

the ground that the agency is exercising enforcement discretion. We also have argued that the

NRC’s handling of security issues at Indian Point has been reasonable.

We filed a motion to dismiss, but a motions panel referred our motion to the merits panel. After

full briefing and oral argument, the case now awaits decision.

CONTACT: Jared K. Heck

 415-1623
- 5 -

Public Citizen v. NRC, No. 03-1181 (D.C. Cir.)

This lawsuit argues that the Commission unlawfully imposed new “design basis threat”

requirements through orders issued it issued last April without prior notice and public comment. 

Petitioners claim that the Commission may not alter agency rules without invoking the

rulemaking process. We filed a motion to dismiss on the theory that petitioners had not sought

an agency hearing, as permitted by the DBT orders.

The court of appeals referred our motion to the motions panel. It will be resolved after full

briefing and argument of the case. Our brief is due this spring.

CONTACT: Jared K. Heck

 415-1623

San Luis Obispo Mothers for Peace v. NRC, No. 03-74628 (9th Cir., filed Dec. 12, 2003) 

This lawsuit challenges two NRC adjudicatory decisions in the proceedings to license an ISFSI

at Diablo Canyon. The first challenged decision (CLI-02-23, 56 NRC 230 (2002)) declined to

suspend licensing proceedings to await security enhancements. The second decision (CLI-03-

1, 57 NRC 1 (2003)) rejected contentions demanding an environmental impact statement

considering the potential effects of terrorism. The NRC’s brief will be due during the spring of

2004.

CONTACT: Charles E. Mullins

 415-1618

Skull Valley Band of Goshute Indians v. Leavitt, No. 2:01-CV-270V (D. Utah), appeal

pending, No. 02-4149 (10th Cir.)

This lawsuit in federal district court in Salt Lake City challenged the constitutionality of various

laws enacted by the State of Utah to obstruct the proposed Private Fuel Storage facility on

Goshute tribal lands in Utah. Among Utah’s arguments in defending the suit was a claim that

the Nuclear Waste Policy Act precluded the NRC from licensing the proposed facility. Utah

thus maintained that the facility could never obtain a license lawfully. Hence, according to Utah,

the Goshutes and PFS lacked standing to challenge the state’s anti-PFS legislation, and the

lawsuit was not ripe.

We filed an amicus curiae brief disputing Utah’s claim. We argued that only courts of appeals,

not federal district courts, had authority to review questions bearing on NRC licensing authority. 

We stated that the district court ought to let the Commission decide, in the first instance,

whether it had licensing authority. That determination, we said, had nothing to do with ripeness

or standing in the Goshute-PFS challenge to Utah’s statutes. 

The district court (Campbell, J.) agreed with our view, and declined to enter the licensing

authority dispute. (The Commission ultimately decided that dispute against Utah (CLI-02-29), a

decision that has triggered new lawsuits in the District of Columbia Circuit, Bullcreek v. NRC,
- 6 -

Nos. 03-1018 & 03-1022 (D.C. Cir.)). The district court also struck down the Utah legislation

nearly in its entirety as preempted by the federal government’s exclusive power to regulate the

safety of nuclear reactors and high-level waste storage.

Utah has taken an appeal to the United States Court of Appeals for the Tenth Circuit (in

Denver). In collaboration with the Department of Justice, we again filed an amicus curiae brief

on the reviewability of Utah’s “statutory authority” claim. The court of appeals heard oral

argument last August, but has not yet issued a decision.

CONTACT: Grace H. Kim

 415-3805 

State of Nevada v. NRC, Nos. 02-1116 & 03-1058 (D.C. Cir.)

The State of Nevada (joined by Clark County, Nevada, and the City of Las Vegas) filed this

petition for judicial review. It challenges 10 C.F.R. Part 63, a rule the NRC issued in November,

2002, that established criteria and requirements for licensing the proposed Yucca Mountain

repository for high-level radioactive waste. Petitioners argue that Part 63 violates the Nuclear

Waste Policy Act in various respects. 

We initially filed a motion to dismiss the lawsuit as untimely. (It was filed nearly 6 months after

Part 63 issued.) We argued that petitioners were required to file suit within 60 days of Part 63's

issuance, as the Hobbs Act requires. Petitioners responded that they had 180 days to file suit,

as the Nuclear Waste Policy Act provides. The court of appeals deferred a ruling on our

jurisdictional motion until after full briefing of all issues in the case.

In the meantime, Nevada had filed a petition for rulemaking seeking changes in Part 63 to

reflect the supposed “primacy” of geologic protection over engineered protection. The

Commission rejected the petition, and Nevada filed a second lawsuit. The court of appeals

consolidated Nevada’s new lawsuit with its previous one, and also consolidated the NRC

litigation with pending Yucca Mountain suits against EPA and the Department of Energy. 

The court heard oral argument on all the cases in January. We are awaiting the court’s

decision. 

CONTACT: Steven F. Crockett

 415-1622

Sweet v. United States, No. 00-274 C (U.S. Court of Federal Claims)

This lawsuit, a companion to Massachusetts General Hospital v. United States and MIT v.

United States, arises out of medical research and treatment, known as “boron neutron capture

therapy,” conducted by Dr. William Sweet decades ago. The BNCT procedure involved use of

AEC-licensed research reactors at MIT and at the Brookhaven National Laboratory. The

families of several of Dr. Sweet’s patients filed tort suits for damages against Dr. Sweet and

others on the claim that BNCT treatment caused radiation-related injury and death to loved
- 7 -

ones. See Heinrich v. Sweet, 62 F.Supp.2d 282 (D. Mass. 1999). Dr. Sweet, like MIT and

Mass General, seeks from the government Price-Anderson reimbursement for his legal fees

and costs. 

As noted above (in the discussions of the Massachusetts General and MIT cases), the Claims

Court rejected our argument that medical malpractice-type claims lie outside Price-Anderson. 

In consultation with DOJ, we currently are pursuing other defenses.

CONTACT: Marjorie S. Nordlinger

 415-1616 

Westinghouse Electric Co. v. United States, No. 4:03-CV-00861 (DDN) (E. D. Mo.)

This is a lawsuit for government contribution under CERCLA for cleanup of the Hematite site in

Missouri. We are working with the Justice Department in defending the suit. 

CONTACT: Charles E. Mullins

 415-1616 

CLOSED CASES

McGee v. NRC, No. 03-60245 (5th Cir., decided July 7, 2003)

This pro se petition for review presented a garbled account of alleged mistreatment by various

government agencies, including the Nuclear Regulatory Commission. We filed a motion to

dismiss on the ground that petitioner had not participated in an NRC proceeding and had failed

to identify an NRC order that aggrieved him.

The court of appeals (Barksdale, DeMoss & Benavides, JJ.) issued a summary order

dismissing the petition for review for lack of jurisdiction.

CONTACT: Charles E. Mullins

 415-1616 

Ohngo Gaudadeh Devia v. NRC, No. 02-9583 (10th Cir., decided June 2, 2003)

In this case, a group of dissident Goshute Indians challenged a Commission adjudicatory

decision, CLI-02-20, 56 NRC 147 (2002), rejecting their “environmental justice” challenge to the

Private Fuel Storage license application. We argued that the lawsuit was premature, given that

the Commission had not yet made a final decision on whether to license the PFS facility. The

license applicant, PFS, made the same argument. Petitioners claimed that the environmental

justice decision was in fact final and had immediate consequences.
- 8 -

Although we had suggested that the court could avoid deciding the finality question by holding

the case in abeyance to await a final licensing decision, the court (Ebel, Brorby & Henry, JJ.)

issued a short order dismissing the suit outright.

CONTACT: Grace H. Kim

 415-3605

Parents Concerned About Indian Point v. NRC, No. 02-4243 (2d Cir.)

This petition for review challenged a Commission refusal to reopen emergency planning

hearings, terminated nearly twenty years ago, concerning emergency planning at the Indian

Point nuclear power reactors. The petitioner was a citizens group who had participated in the

original emergency planning hearings. The citizens group filed its lawsuit pro se. We moved to

dismiss the court case on multiple grounds. The court of appeals (Leval, Calabresi & Trager,

JJ.) dismissed the case summarily, pointing to our argument that a citizens group could not

proceed in court “without the representation of an attorney.”

CONTACT: Charles E. Mullins

 415-1618

Syms v. Olin Corp., et al., No. 00-CV-732A (SR) (W.D. N.Y.)

Several property owners in upstate New York filed this lawsuit against a private corporation and

a number of government agencies and officials, including the NRC. Plaintiffs sought money

damages as compensation for their past and future “response costs” in cleaning up radioactive

contamination at a former Manhattan Project site near Lake Ontario. Plaintiffs invoked both

CERCLA and the Federal Tort Claims Act as the basis for their damages suit.

We informed DOJ that there was no basis for NRC liability because the site was not NRC

regulated. The case was settled without any concession of NRC liability or responsibility.

CONTACT: Susan G. Fonner

 415-1629

Westinghouse Electric Co. v. United States, No. 99-1015C (U.S. Court of Federal Claims)

This is a damages case arising out of an environmental cleanup of a contaminated industrial

site in Blairsville, Pennsylvania, used in the production of fuel for the Navy’s nuclear programs. 

The claim is that a contract between the Atomic Energy Commission and plaintiff obliges the

government to foot the bill for the cleanup. Plaintiff sought monetary relief under both the

contract and CERCLA. 

Plaintiff named the United States, the NRC and the Department of Energy as defendants in the

case. We informed the Department of Justice that there is no basis for NRC involvement 
- 9 -

because the Blairsville site is not an NRC-regulated site, but derives from an AEC function

inherited by DOE. We cooperated with DOJ on discovery proceedings. The case was settled

without any concession of NRC liability or responsibility.

CONTACT: Charles E. Mullins

 415-1618