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.