ADJUDICATORY ISSUE 

INFORMATION

January 29, 2013 SECY-13-0013

 

FOR: The Commissioners 

FROM: Andrew P. Averbach /RA/ 

Solicitor 

SUBJECT: ANNUAL REPORT ON COURT LITIGATION (CALENDAR YEAR 2012) 

PURPOSE: 

To inform the Commission of the status of litigation in the courts. 

DISCUSSION: 

Enclosed is a report updating court litigation since the last annual report dated January 27, 2012 

(SECY-12-0015), prepared by my predecessor, John F. Cordes, Jr. This report reflects the 

status of NRC cases in court as of January 28, 2012. 

During the reporting period (Calendar Year 2012), the Commission or NRC officials were sued 

four times in the courts of appeals1

 and once in federal district court.2 During this same oneyear period, three cases were closed.3

 The number of new filings in 2012 is somewhat smaller 

than the number of new filings over the past decade. There were 11 new lawsuits in 2011, 9 

new lawsuits in 2010, 8 in 2009, 13 in 2008, 11 in 2007, 8 in 2006, 11 in 2005, 13 in 2004, 

14 in 2003, and 8 in 2002, for an average of 10.6 new lawsuits a year. 

 

1 Beyond Nuclear v. NRC, No. 12-1561 (1st Cir.); Blue Ridge Environmental Defense League v. 

NRC, No. 12-1106 (D.C. Cir.); Massachusetts v. NRC (1st Cir.), Nos. 12-1404, 12-1772; Nye 

County et al. v. NRC, No. 12-1136 (D.C. Cir.). 

2 Budzynski v. Macfarlane, No. 12-3174 (D. Md.). 

3

 Blue Ridge Environmental Defense League v. NRC, Nos. 09-1112, 10-1058 (D.C. Cir.); New 

York v. NRC, Nos. 11-1045, 11-1051, 11-1056, 11-1057 (D.C. Cir.); Vermont Department of 

Public Service v. NRC, Nos. 11-1168, 11-1177 (D.C. Cir.). 
 

- 2 – 

During this reporting period we also handled nine so-called "Touhy" requests for NRC 

testimony, depositions, or other evidence for use in private litigation. See 10 C.F.R. § 9.200 et 

seq. In addition, we continued to handle a steady stream of discovery demands in lawsuits for 

or against the United States but not involving the NRC as a party. The chief burden in this area 

again this year came in cases brought in the U.S. Court of Federal Claims seeking money 

damages against the government for not meeting the statutory deadline (1998) for a high-level 

waste disposal facility. 

CONTACT: Andrew P. Averbach 

 (301) 415-1956 

Enclosure: 

Litigation Status Report 

 
 

- 3 – 

DISTRIBUTION: 

Commissioners 

OGC 

OCAA 

ASLBP 

SECY 
 

LITIGATION STATUS REPORT

(As of Jan. 28, 2013)

ACTIVE CASES1

In re Aiken County, No. 11-1271 (D.C. Cir.) 

This lawsuit, filed by several parties from South Carolina and Washington, seeks mandamus 

relief against NRC for allegedly unlawful inaction and delay in the Yucca Mountain licensing 

proceeding. NRC’s brief maintains that Congress’s cut-off of appropriated funds for the Yucca 

proceeding prevents the agency from continuing with the proceeding and from deciding whether 

to approve or disapprove the DOE license application. Subsequent to oral argument, the 

Department of Justice filed an amicus brief on behalf of the United States, at the court's 

direction, and NRC and petitioners filed supplemental briefs responding to the brief of the United 

States. The court then entered an order holding the case in abeyance pending potential 

Congressional direction concerning the disposition of funds previously appropriated from the 

Nuclear Waste Fund for Yucca Mountain-related activities. We advised the Court on January 4, 

2013, that Congress had not issued any specific directive concerning the disposition of these 

funds, but that its apparent decision not to fund additional activities, together with the 

maintenance of the balance of power as a result of the 2012 election, suggested that 

mandamus relief was not warranted. We await a decision from the D.C. Circuit. 

CONTACT: Charles E. Mullins, OGC 

 301-415-1618 

Anderson v. Jaczko, No. 11-cv-1370 (D. Md.) 

Plaintiff filed a lawsuit complaining that she was a victim of harassment and race discrimination 

while working at NRC. The district court dismissed her suit for lack of jurisdiction and for failure 

to state a claim. Plaintiff appealed the district court decision to the United States Court of 

Appeals for the Fourth Circuit, which remanded the case back to the district court to reconsider 

its conclusion in light of allegedly new evidence. The district court issued an order on January 

13, 2013, denying reconsideration of its previous conclusion. 

CONTACT: Laura C. Zaccari, OGC 

 615-472-1606 

 

 

 1 For statistical purposes, we count as “active” any case pending before a court, or still 

subject to further judicial review, as of January 28, 2013. However, narratives accompanying 

each listed case include any post-January 1 developments.
- 2 - 

Baig v. NRC, No. 10-cv-842 (D.N.J.) 

Plaintiff, a former NRC employee, claims that he suffered age discrimination and national-origin 

discrimination in employment. Working with the United States Attorney’s office, NRC filed a 

motion to dismiss or for summary judgment. The court dismissed the lawsuit, but permitted 

plaintiff to file an amended complaint with respect to two of the eight dismissed counts. Plaintiff 

filed an amended complaint and, following discovery, defendant filed a motion for summary 

judgment. Plaintiff has filed several motions for extensions of time to respond to the motion for 

summary judgment. The court ordered plaintiff to file his response by January 28, 2013, and has 

stated that no further extensions will be granted. 

CONTACT: John S. Farrington, OGC 

 301-415-2196 

Beyond Nuclear v. NRC, No. 12-1561 (1st Cir.) 

Petitioners in this case argue that they were wrongly dismissed from the Seabrook licenserenewal proceeding. They advanced a NEPA-alternatives contention, premised on the future 

availability of offshore wind farms to provide baseload power, which the Commission rejected as 

too speculative and not adequately supported. The Court of Appeals denied the petition for 

review on January 4, 2013, holding that the Commission’s decision correctly interpreted NEPA 

and was adequately supported by the record. Petitioners have until February 18, 2013, to seek 

rehearing at the Court of Appeals. Alternatively, petitioners have until April 4, 2013, if they 

choose to file a petition seeking Supreme Court review. 

CONTACT: Jeremy Suttenberg, OGC 

 301-415-3605 

Blue Ridge Environmental Defense League v. NRC, No. 12-1106 (D.C. Cir.)

In this case, petitioners (several citizens' groups) challenge NRC's issuance of a COL for two 

new reactors at the Vogtle site in Georgia. Petitioners argue that NRC's environmental review 

was deficient for failure to take adequate account of the Fukushima accident in Japan. 

Petitioners' original suit was filed prematurely, and they withdrew it. Subsequently, they filed a 

fresh, timely suit. They also sought a judicial stay pending appellate review. The court denied 

the stay. The case was consolidated with a companion suit challenging the rule approving the 

AP1000 certified design (the design used at Vogtle). We filed our merits brief in late June. The 

case was orally argued on November 19. There is as yet no decision. 

CONTACT: Robert Rader, OGC 

 Jeremy Suttenberg, OGC 

 301-415-1955 
- 3 - 

Brodsky v. NRC, No. 09-cv-10594 (S.D.N.Y.), appeal pending, No. 11-2016 (2d Cir.) 

This lawsuit challenges fire-protection exemptions that NRC granted to Indian Point. The case 

was originally brought in the Court of Appeals for the Second Circuit, but that court found that it 

lacked jurisdiction. Petitioners (now plaintiffs) then re-filed their case in federal district court, 

which held that (1) plaintiffs were not entitled to an adjudicatory hearing on the exemptions at 

issue; and (2) the exemptions were reasonably rooted in sound record evidence. Plaintiffs 

appealed and, on January 7, 2013, the Court of Appeals for the Second Circuit issued a 

decision that upheld the district court’s conclusion concerning the validity of the exemption. 

However, the court remanded the case back to the district court, with instruction that it remand 

the case back to the Commission, so that the Commission may either articulate why public 

participation was not required prior to the issuance of an environmental assessment and a 

finding of no significant environmental impact, or for other appropriate action.

 CONTACT: Robert M. Rader, OGC 

 301-415-1955 

Budzynski v. Macfarlane, No. 12-cv-3174 (D. Md.) 

Plaintiff, an NRC employee, claims that he was a victim of age discrimination when he was not 

selected for a position advertised in an NRC vacancy announcement. NRC assisted the United 

States Attorney’s office in filing a motion for summary judgment. The motion for summary 

judgment is currently pending before the court. 

 

CONTACT: Stephanie N. Liaw, OGC 

 301-415-2472 

El Paso Natural Gas Company, v. United States, No. 07-cv-905 (D.D.C.), appeal pending,

Nos. 12-5156, 12-5157 (D.C. Cir.): 

El Paso Natural Gas filed this lawsuit to compel the United States to clean up two sites 

associated with the Tuba City Mill: the Tuba City Dump, and the Highway 160 site. The suit 

asserts a number of theories of liability including the APA, CERCLA, RCRA, and UMTRCA . 

The Navajo Nation has intervened as a plaintiff. The district court dismissed the APA and 

UMTRCA claims against the Department of Energy, and issued a Rule 54 partial judgment 

allowing El Paso to appeal on those issues to the D.C. Circuit. That court affirmed the district 

court’s dismissal order. El Paso Natural Gas Co. v. United States, 632 F.3d 1271 (D.C. Cir. 

2011). The United States then moved for dismissal of the remaining claims and the district 

court granted that motion as well. Both plaintiffs have appealed and the court of appeals has 

consolidated the cases; the appeal has now been briefed but is not yet scheduled for oral 

argument. NRC is a named defendant in the lawsuit, along with other federal agencies and the 

United States. 

CONTACT: Charles E. Mullins, OGC 

 301-415-1618 

 
- 4 - 

Kandel v. United States, No. 06-cv-872 (Fed. Cl.) 

This is a class-action suit brought against the United States by federal retirees seeking 

additional retirement benefits on account of alleged mishandling of annual leave at the time of 

retirement. The complaint, originally captioned Solow v. United States, but now renamed, 

includes the NRC and other federal agencies. The court denied the government’s motion to 

dismiss on statute of limitations grounds, and the parties continue to dispute various issues 

before the trial judge. No significant activity has occurred since the court certified the class on 

April 19, 2012. 

CONTACT: Wendy B. Bader, OGC 

 301-415-1555 

Massachusetts v. NRC, Nos. 12-1404, 12-1772 (1st Cir.) 

In this case, the Commonwealth of Massachusetts is challenging an NRC adjudicatory decision 

in the Pilgrim license renewal case. Massachusetts claims that NRC did not adequately 

consider, for NEPA purposes, the Fukushima accident and, specifically, the conclusions of the 

Fukushima task force, when it determined that the Commonwealth’s late-filed contentions were 

inadmissible. Our brief was filed in October, the case was argued on December 5, and no 

decision has been issued yet. 

CONTACT: James E. Adler 

 301-415-1656 

Navajo Nation v. United States, No. 06-cv-945 (Fed. Cl.) 

The Navajo Nation alleges that the United States has mishandled the royalties due the Nation 

from the exploitation of oil, gas, coal, uranium and other natural resources that accrue to the 

benefit of the Navajo Nation and its members. The case was filed in 2006 and was forwarded to 

the NRC for discovery in 2007. Shortly after we initiated discovery, the case was referred to 

alternative dispute resolution (ADR) and discovery was stayed. 

The case has now been removed from ADR and discovery has been re-initiated. OGC will be 

reviewing agency files to determine if the NRC has any documents relevant to the case. 

CONTACTS: Charles E. Mullins, OGC 

 301-415-1618 

 Michele Albert, OGC 

 301-415-5431
- 5 - 

Nevada v. NRC, No. 09-1133 (D.C. Cir.) 

This petition for review challenges NRC’s “Yucca Mountain Rule,” 10 CFR Part 63, which 

implements an EPA rule establishing standards for reviewing the Yucca Mountain high level 

waste application. Given the suspension of proceedings related to Yucca Mountain, the case 

has been held in abeyance, subject to periodic status reports. 

CONTACT: Andrew P. Averbach, OGC 

 301-415-1956 

New Jersey v. NRC, No. 11-3228 (3d Cir.) 

In this lawsuit, New Jersey challenges NRC’s Decommissioning Planning Rule insofar as that 

rule assumes a 1% real rate of return on decommissioning funds. At New Jersey’s request the 

case has been held in abeyance to await the outcome of Shieldalloy v. NRC, No. 11-1449 

(D.C. Cir.). 

CONTACT: James E. Adler 

 301-415-1656 

Nye County et al. v. NRC, No. 12-1136 (D.C. Cir.) 

This is a companion case to In re Aiken County, No. 11-1271 (D.C. Cir.) the mandamus case. 

In this case, the same parties who filed the mandamus case challenge the Commission’s 

decision in CLI-11-07 (Sept. 9, 2011) directing the Atomic Safety and Licensing Board to close 

down the licensing board proceeding reviewing the application to construct the Yucca Mountain 

geologic repository. 

Petitioners filed an unopposed motion to hold the case in abeyance pending resolution of the 

mandamus case. The Court issued an order holding the case in abeyance and directing the 

parties to file status reports within 30 days after the decision in the Aiken County case advising 

the Court whether any portion of this case remains for judicial consideration. 

CONTACT: Charles E. Mullins 

 301-415-1618

Ohngo Gaudadeh Devia v. NRC, Nos. 05-1419, 05-1420, 06-1087 (D.C. Cir.) 

This is the caption for three consolidated lawsuits filed by OGD (dissident Goshutes) and the 

State of Utah challenging a series of Commission adjudicatory decisions authorizing issuance of 

a license for the proposed Private Fuel Storage spent fuel storage facility. The case is fully 

briefed, but the court of appeals decided to hold the case in abeyance, as not currently "ripe," 

because PFS has failed to obtain necessary approvals from Department of the Interior (DOI) 

sub-agencies. PFS went to federal district court to challenge the other agencies' decisions. 

PFS prevailed in 2010, obtaining a remand to DOI. Ever since, the parties have filed a series of 
- 6 - 

joint status reports in the D.C. Circuit agreeing that the case should remain in abeyance pending 

further developments at DOI. PFS has moved to terminate its license, and the parties are 

currently discussing how to resolve the litigation in light of PFS's request. 

CONTACT: Grace H. Kim, OGC 

 301-415-1607 

Pueblo of Laguna v. United States, No. 02-24 (Fed. Cl.); Jicarilla Apache Nation v. United 

States, No. 02-25 (Fed. Cl.) 

In both cases the plaintiffs (Indian tribes) seek an accounting of the federal government’s 

alleged mismanagement of the tribe’s trust funds and other properties. Plaintiffs also seek 

recovery for monetary loss and damages. The Court issued discovery and document 

preservation orders in both cases. 

The Laguna case is currently in active litigation. Phase 1 of the trial focuses on the tribe’s 

investment claims, i.e., whether funds were timely deposited, properly withdrawn, and prudently 

invested. The United States has proposed a global settlement agreement, which is under 

review by the plaintiff. The Jicarilla case was tried on the Tribe’s investment claims for the 1972 

to 1992 time period in the spring of 2012. The parties are awaiting a ruling. 

CONTACT: Charles E. Mullins 

 301-415-1618

Shieldalloy, Inc. v. NRC, No. 11-1449 (D.C. Cir.) 

This is the second time around for Shieldalloy’s attempt to force NRC to retain regulatory 

authority over a contaminated site in New Jersey (owned by Shieldalloy), notwithstanding 

NRC’s entering into an agreement with New Jersey transferring regulatory authority to the state. 

Last year the court or appeals held that NRC had not adequately explained why it was not 

retaining authority over the New Jersey site. On remand, the Commission issued a lengthy 

formal opinion justifying its position. Shieldalloy has gone back to the court to try to set aside 

the Commission decision. Oral argument was heard on October 9. There is as yet no decision. 

CONTACT: Grace H. Kim, OGC 

 301-415-1607 

Texas Instruments v. United States, No. 09-701C (Fed. Cl.) 

Over the last 20 years, the Corps of Engineers has removed a certain amount of radioactive 

contamination from the Shpack Superfund site in Norton and Attleboro, Massachusetts. This 

contamination was identified by the NRC in the early 1970s. After removal of the material, the 

Corps initiated procedures to file a claim against Texas Instruments (TI) under CERCLA, having 

concluded that the material most likely came from TI and was the result of TI’s work under 

certain AEC naval reactor contracts in the 1950s and 1960s. In response, TI filed the instant 
- 7 - 

lawsuit in the Court of Federal Claims, claiming that it was not the responsible party and that, 

alternatively, if it was the responsible party it was indemnified under the AEC contracts involved. 

The parties conducted discovery to test TI’s claim that it was not responsible for the 

contamination. The NRC provided background materials and several current and former NRC 

employees were deposed as witnesses. The parties have now negotiated a settlement and 

have filed a proposed consent decree which, inter alia, requires TI to dismiss the Claims Court 

case with prejudice. 

CONTACT: Charles E. Mullins, OGC 

 301-415-1618 

United States v. Science Applications International Corp., No. 04-cv-1543 (D.D.C.) 

The government sued SAIC under the False Claims Act for damages and other relief arising out 

of SAIC’s contract to provide unbiased advice to the NRC. The NRC hired SAIC to support the 

agency’s rulemaking effort to develop standards applicable to the release of radioactive 

materials into the environment. SAIC at the same time was a hired consultant for entities with 

an interest in the outcome of the NRC rulemaking. After a jury trial where the United States was 

represented by Department of Justice and NRC lawyers, the government won a $6.5 million 

verdict and judgment. The district court rejected SAIC’s motion to set aside the verdict. 

The court of appeals reversed the district court judgment because of defects in the jury 

instructions on calculating damages and on when corporate employees’ “collective knowledge” 

could be imputed to the corporation. The court did, however, reject SAIC’s position that only 

express contract conditions are actionable under the False Claims Act, and upheld the 

government’s position that implied conditions (here, providing unbiased advice) are actionable 

as well. 

The case remains pending before the district court on remand. 

CONTACT: Robin A. Baum, OGC 

 301-415-2202 

CLOSED CASES 

Blue Ridge Environmental Defense League v. NRC, No. 09-1112, 10-1058 (D.C. Cir.) 

These lawsuits challenged NRC’s decision to reinstate previously-withdrawn construction 

permits at TVA’s Bellefonte site. Because a related adjudication was pending before NRC, the 

court of appeals, on our motion, held the initial lawsuit in abeyance. We moved to dismiss the 

second suit for lack of jurisdiction, but the court directed full briefing on the issue. NRC filed its 

brief, on both jurisdiction and the merits last March, and the court heard oral argument in 

 
- 8 - 

October. The Court denied both petitions for lack of jurisdiction on February 7, 2012. Blue 

Ridge Environmental Defense League declined to seek further review. 

CONTACT: Jeremy Suttenberg, OGC 

 Grace H. Kim, OGC 

 301-415-3605 

New York et al. v. NRC, Nos. 11-1045, 11-1051, 11-1056, 11-1057 (D.C. Cir.) 

This consolidated lawsuit challenged NRC's Waste Confidence Decision and Temporary 

Storage Rule. Petitioners argued that NRC lacked sufficient factual support for its finding that 

spent-fuel storage onsite for at least 60 years can be accomplished in a safe and 

environmentally acceptable manner, and that it should have prepared an environmental impact 

statement before reaching this conclusion. In addition, petitioners challenged the Rule's 

expression of confidence that a permanent repository will be available “when necessary.” On 

June 8, the court struck down NRC's waste confidence decision and rule. The Court found 

NRC's NEPA analysis inadequate for failing to analyze the consequences of not building a 

repository. The court also found NRC's examination of the risk of leaks and fires in spent fuel 

pools insufficient. NRC sought no further review, but some of the petitioners sought attorney's 

fees. At our request, the court placed the fee claim in the court's mediation program, and the 

parties reached an agreement to settle the fees claim. 

CONTACT: Robert M. Rader 

 301-415-1955 

Sustainable Energy & Economic Develop. Coalition v. NRC. No. 11-1457 (D.C. Cir.) 

This lawsuit challenged an NRC adjudicatory decision in the ongoing Comanche Peak COL 

proceeding. The Board rejected a contention on mitigative strategies, and the Commission 

upheld the Board ruling. Petitioners disagreed with the contention-admissibility ruling. We filed 

a motion to dismiss the lawsuit as premature, given that the COL decision was not scheduled to 

be reached for several years and that petitioners themselves were still before the Board and the 

Commission, raising Fukushima-driven claims for reopening. Petitioners moved to withdraw 

their lawsuit, and the motion for voluntary dismissal was granted. 

CONTACT: James E. Adler, OGC 

 301-415-1656 

Vermont Department of Public Service v. NRC, Nos. 11-1168, 11-1177 (D.C. Cir.) 

These consolidated cases (one brought by Vermont and the other by the New England 

Coalition) claimed that NRC unlawfully renewed Vermont Yankee’s operating license without 

requiring Vermont Yankee to have in place a state water-quality certification under section 401 

of the Clean Water Act. In response, we argued that the petitioners failed to exhaust their NRC 

remedies before bringing the lawsuit, because they never properly raised the issue before the 

Board and never appealed at all to the Commission. We also argued that the petitioners 
- 9 - 

suffered no harm from the agency’s actions because Vermont’s section 402 NPDES permit was 

sufficient to prevent any harms to water quality that might occur from relicensing Vermont 

Yankee. Following oral argument, the court of appeals unanimously agreed with our 

exhaustion argument and upheld the agency’s decision to relicense Vermont Yankee without a 

fresh section 401 certificate. 

CONTACT: Sean D. Croston, OGC 

 301-415-2585