In re: State of Texas

Case: 17-60191 Document: 00514497513 Page: 1 Date Filed: 06/01/2018

IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

United States Court of Appeals

No. 17-60191

Fifth Circuit

FILED

June 1, 2018

STATE OF TEXAS, Lyle W. Cayce

Clerk

Petitioner

v.

UNITED STATES OF AMERICA; UNITED STATES DEPARTMENT OF

ENERGY; JAMES RICHARD “RICK” PERRY, IN HIS OFFICIAL

CAPACITY AS UNITED STATES SECRETARY OF ENERGY; UNITED

STATES NUCLEAR REGULATORY COMMISSION; KRISTINE L.

SVINICKI, IN HER OFFICIAL CAPACITY AS CHAIRMAN OF THE

UNITED STATES NUCLEAR REGULATORY COMMISSION; UNITED

STATES NUCLEAR REGULATORY COMMISSION ATOMIC SAFETY AND

LICENSING BOARD; THOMAS MOORE, PAUL RYERSON, AND

RICHARD WARDWELL, IN THEIR OFFICIAL CAPACITIES AS UNITED

STATES NUCLEAR REGULATORY COMMISSION ATOMIC SAFETY AND

LICENSING BOARD JUDGES; UNITED STATES DEPARTMENT OF THE

TREASURY; AND STEVEN T. MNUCHIN, IN HIS OFFICIAL CAPACITY

AS UNITED STATES SECRETARY OF THE TREASURY,

Respondents

Petition for a Writ of Mandamus to the

Nuclear Regulatory Commission

Before HIGGINBOTHAM, HAYNES, and GRAVES, Circuit Judges.

PATRICK E. HIGGINBOTHAM, Circuit Judge:

This is the latest of many disputes arising out of the government’s

struggle with nuclear waste disposal under the Nuclear Waste Policy Act of

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1982 (the “Waste Act”), 1 a congressional effort to “establish a schedule for the

siting, construction, and operation of repositories.” 2 The state of Texas

petitions for declaratory and injunctive relief, and the state of Nevada moves

to dismiss. We will grant the motion to dismiss.

I.

Under the statutory framework of the Waste Act, new repositories were

to provide centralized housing for spent nuclear fuel and high-level radioactive

waste (“waste”) produced by reactors scattered throughout the states. The

Waste Act initially envisioned a system in which the Department of Energy

would identify a handful of suitable repository sites from which it would

recommend three to the president by January 1, 1985. 3 Although the

Department of Energy eventually settled on the Yucca Mountain, Nevada, site

and two others, Congress amended the Waste Act in 1987 to designate Yucca

Mountain the sole candidate for a repository, 4 directing the Department of

Energy to accept the waste from the states by January 31, 1998. 5 Yet by the

mid-1990s, the Department of Energy made clear that it could not meet the

1998 deadline, and it came and went without the federal government accepting

any waste.

As directed, the Department of Energy focused on the Yucca Mountain

site, conducting a series of preliminary tasks and assessments before in 2002

formally recommending the building of a repository there. 6 Congress approved,

1 42 U.S.C. § 10101 et seq.

2 Id. § 10131(b)(1).

3 Id. § 10132(b)(1)(B) (“[T]he Secretary shall recommend to the President 3 of the

nominated sites not later than January 1, 1985 for characterization as candidate sites.”).

4 See Nuclear Waste Policy Amendments Act of 1987, Pub. L. No. 100-203, 101 Stat.

1330.

5 42 U.S.C. § 10222(a)(5)(B) (“[I]n return for the payment of fees established by this

section, the Secretary, beginning not later than January 31, 1998, will dispose of the high-

level radioactive waste or spent nuclear fuel involved as provided in this subchapter.”).

6 See In re Aiken County, 645 F.3d 428, 431 (D.C. Cir. 2011) (“Aiken I”).

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with another deadline: the Department of Energy had ninety days to submit

an application for construction authorization to the Nuclear Regulatory

Commission. 7 The Department of Energy did not submit this required

application until 2008. 8 And when it did so, its submission triggered yet

another deadline, requiring the Nuclear Regulatory Commission to complete

application review by 2012. 9

This deadline, too, would go unmet, as just a couple of years later, the

Department of Energy hesitated. In 2010, while the tribunal branch of the

Nuclear Regulatory Commission, known as the Atomic Safety and Licensing

Board (the “Licensing Board”), was reviewing the Yucca Mountain application,

the Department of Energy attempted to withdraw the application, professing

renewed doubt about the viability of the Yucca Mountain site. Both the

Licensing Board and the Nuclear Regulatory Commission denied the request

for withdrawal, 10 but then the Licensing Board decided to hold the licensing

proceeding in abeyance due to a lack of funding. 11

Lawsuits followed. Various state and local government entities

challenged the Department of Energy’s attempt to withdraw the Yucca

7 See id. at 432.

8 See id.

9 42 U.S.C. § 10134(d) (“The Commission shall consider an application for a

construction authorization for all or part of a repository in accordance with the laws

applicable to such applications, except that the Commission shall issue a final decision

approving or disapproving the issuance of a construction authorization not later than the

expiration of 3 years after the date of the submission of such application, except that the

Commission may extend such deadline by not more than 12 months if, not less than 30 days

before such deadline, the Commission complies with the reporting requirements established

in subsection (e)(2) of this section.”).

10 In re U.S. Department of Energy, 71 N.R.C. 609 (2010); In re U.S. Department of

Energy, 74 N.R.C. 212 (2011).

11 In re U.S. Department of Energy, 74 N.R.C. 368 (2011) (“In light of current fiscal

constraints . . . , the Board suspends the proceeding on the Department of Energy's

application for authorization to construct a national high-level nuclear waste repository at

Yucca Mountain, Nevada.”).

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Mountain application, and in 2011, the D.C. Circuit, in its Aiken I decision,

dismissed their complaint for lack of ripeness and finality. 12 In 2013, in

response to the Licensing Board’s decision to pause the licensing proceeding,

the D.C. Circuit issued its Aiken II decision and granted a writ of mandamus

to roughly the same group of entities, instructing the Nuclear Regulatory

Commission to “promptly continue with the legally mandated licensing

process.” 13 The order requires the Nuclear Regulatory Commission to continue

to spend its funds in line with the statutory requirement of the Waste Act

“unless and until Congress authoritatively says otherwise or there are no

appropriated funds remaining.” 14

At the time of the Aiken II decision, the Nuclear Regulatory Commission

had approximately $11 million in its coffers, a sum that it believed to be

woefully inadequate to complete the entire licensing process. 15 So, in the wake

of the decision, the Nuclear Regulatory Commission solicited the opinions of

parties to the adjudicatory proceedings on how best to triage its remaining

funds. 16 The path forward, the Nuclear Regulatory Commission decided,

consisted mainly of completing a Safety Evaluation Report, a required step in

the licensing process. 17 As it has sailed on that tack, the $11 million has

withered into less than $700,000 in unobligated funds.

12 See Aiken I, 645 F.3d at 435–37.

13 See In re Aiken County, 725 F.3d 255, 267 (D.C. Cir. 2013) (“Aiken II”).

14 Id.

15 Id. at 258. Indeed, Chief Judge Garland dissented from the Aiken II court’s holding,

explaining that in light of the limited funding, “granting the writ in this case will [] direct

the Nuclear Regulatory Commission to do ‘a useless thing.’” Id. at 269 (Garland, C.J.,

dissenting).

16 In re U.S. Department of Energy, CLI-13-08, 2013 WL 7046350, at *1 (N.R.C. Nov.

18, 2013) (“We issued an order seeking comment from the participants in this adjudication

as to how the agency should continue with the licensing process.”).

17 Id. at *3. The Nuclear Regulatory Commission also focused on uploading licensing

support network documents onto a new recordkeeping system, and completing a

supplemental environmental impact statement. Id. at *5–6.

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Meanwhile, in 2010, while the Nuclear Regulatory Commission was

undertaking the licensing process, then-President Obama established a Blue

Ribbon Commission to explore an alternative system of “consent-based siting”

for waste storage. The Commission concluded that consent-based siting, not

the Yucca Mountain repository, represented the most promising path forward,

publishing a strategy document to that effect in 2013 and inviting public

comment on the subject in 2015. More recently, in 2017, the Department of

Energy published a draft report “lauding the consent-based siting process,” and

initiated another related public comment period that expired in April 2017.

Nothing came of its actions, and the Department of Energy now advises that

the Trump Administration “does not intend to take further policy action on the

consent-based siting activities in question.”

While Texas was not involved, it had its wary eyes on these proceedings,

and on March 14, 2017, petitioned this Court for relief, naming various federal

entities as defendants, including the Department of Energy, Nuclear

Regulatory Commission, Licensing Board, Department of Treasury, and

various federal officials associated with these agencies (collectively, the

“federal respondents”). Relying on 42 U.S.C. § 10139(a)(1), Texas argues that

the federal respondents violated their obligations under the Waste Act in their

pursuit of consent-based siting, failure to complete the Yucca Mountain

licensing process by 2012, and failure to accept the waste by 1998.

Seeking several different remedies, Texas characterizes “[t]he thrust” of

its petition as a request for “equitable relief prohibiting [the Department of

Energy] from conducting any other consent-based siting activity and ordering

Respondents to finish the Yucca licensure proceedings,” supported by ancillary

remedies, such as civil contempt and appointment of a special master. After

Texas filed its petition, the Nuclear Energy Institute alongside various nuclear

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utilities companies (collectively, the “NEI”) and the state of Nevada intervened,

all of which oppose Texas’s petition on jurisdictional and substantive grounds.

After filing its petition, Texas moved for declaratory and injunctive

relief; Nevada responded with its own motion to dismiss, which the federal

respondents and the NEI supported in substance.

II.

As is plain, Texas flies here on creatively fashioned jurisdictional wings.

In the ordinary course, civil actions—including petitions for mandamus, one of

the remedies Texas seeks—must first be filed in federal district court, our court

of first instance. 18

Texas brings its petition under 42 U.S.C. § 10139(a)(1), which states in

part:

(a) Jurisdiction of United States courts of appeals

(1) Except for review in the Supreme Court of the United

States, the United States courts of appeals shall have

original and exclusive jurisdiction over any civil action—

(A) for review of any final decision or action of the

Secretary, the President, or the Commission under this

part;

(B) alleging the failure of the Secretary, the President,

or the Commission to make any decision, or take any

action, required under this part; . . . . 19

Texas asserts that we have this “original and exclusive jurisdiction,” a

plausible argument if the statute ended there. It does not. It also includes a

18See 28 U.S.C. § 1361 (“The district courts shall have original jurisdiction of any

action in the nature of mandamus to compel an officer or employee of the United States or

any agency thereof to perform a duty owed to the plaintiff.”); see also id. § 2201 (“In a case of

actual controversy within its jurisdiction, . . . any court of the United States, upon the filing

of an appropriate pleading, may declare the rights and other legal relations of any interested

party seeking such declaration, whether or not further relief is or could be sought.” (emphasis

added)).

19 42 U.S.C. § 10139(a)(1)(A)–(B).

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timeliness requirement: “A civil action for judicial review described under

subsection (a)(1) of this section may be brought not later than the 180th day

after the date of the decision or action or failure to act involved . . . .” 20

And of course, the actions and omissions that Texas challenges came and

went years ago. 21 The only discrete actions that Texas points to that occurred

within 180 days of its petition are the Department of Energy’s decision to

release a consent-based siting document and to solicit public comments on that

document.

Sensitive to this hurdle, Texas points us to the continuing violations

doctrine. However, before determining whether the continuing violations

doctrine should apply to Texas’s claims, we must first confront a preliminary

question: whether the Waste Act’s 180-day deadline imposes a limit on our

subject matter jurisdiction. If it does, we must dismiss without reaching the

applicability of the continuing violations doctrine. 22

20 Id. § 10139(c).

21 Indeed, in 1998, the Waste Act’s statutory deadline for acceptance of waste passed;

in 2010, the Department of Energy attempted to withdraw its Yucca Mountain licensing

application from the consideration of the Licensing Board; in 2010, President Obama

established his Blue Ribbon Commission on consent-based siting; in 2011, the Nuclear

Regulatory Commission suspended the Yucca Mountain licensing proceeding; in 2012, the

Waste Act’s statutory deadline for completion of the Yucca Mountain licensing proceeding

passed; in 2013, the Nuclear Regulatory Commission sought the views of participants on how

to proceed with the licensing proceeding and settled on creating a Safety Evaluation Report;

in 2013, the Department of Energy released a strategy document relating to consent-based

siting; and in 2017, the Department of Energy released an additional consent-based siting

document and initiated a public comment period.

22 See Dolan v. United States, 560 U.S. 605, 610 (2010) (“The expiration of a

‘jurisdictional’ deadline prevents the court from permitting or taking the action to which the

statute attached the deadline. The prohibition is absolute. The parties cannot waive it, nor

can a court extend that deadline for equitable reasons.”); Colbert v. Brennan, 752 F.3d 412

(5th Cir. 2014) (“Because this is a jurisdictional issue, it cannot be waived or forfeited.

Additionally, no equitable exception can overcome this jurisdictional defect.” (citation

omitted)).

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III.

In recent years, the Supreme Court has increasingly turned its attention

toward distinguishing statutory requirements implicating the subject matter

jurisdiction of federal courts from ones that only function as “claim-processing”

rules. 23 The former—so-called jurisdictional limitations—are “strong medicine

for litigants, attorneys, and judges alike,” 24 for with a want of subject matter

jurisdiction, the court is “deprive[d] . . . of all authority to hear a case” 25: it

must dismiss the case irrespective of equitable considerations, and it must do

so even when timeliness arguments have been waived. 26 On the other hand,

the latter—claim-processing rules—simply “promote the orderly process of

litigation by requiring that the parties take certain procedural steps at certain

specified times.” 27 As they do not stake out limits on a federal court’s subject

matter jurisdiction, their application may be tempered by considerations such

as equity and waiver. 28

Given the bite of jurisdictional rules, and their elusive and protean

character, “Congress must do something special” to mark a procedural

requirement as jurisdictional. 29 This has come to resemble a clear statement

rule: Congress need not “incant magic words,” but “traditional tools of

statutory construction must plainly show that Congress imbued a procedural

bar with jurisdictional consequences.” 30 The clear statement requirement here

disciplines the dialogue with Congress, akin to the rule deployed in resolving

23See, e.g., United States v. Kwai Fun Wong, 135 S. Ct. 1625, 1632 (2015); Sebelius v.

Auburn Reg’l Med. Ctr., 568 U.S. 145, 153 (2013); Henderson ex rel. Henderson v. Shinseki,

562 U.S. 428, 435 (2011); Kontrick v. Ryan, 540 U.S. 443, 454 (2004).

24 Herr v. U.S. Forest Serv., 803 F.3d 809, 814 (6th Cir. 2015).

25 Kwai Fun Wong, 135 S. Ct. at 1631.

26 See id.

27 Shinseki, 562 U.S. at 435.

28 See Bowles v. Russell, 551 U.S. 205, 216 (2007).

29 Kwai Fun Wong, 135 S. Ct. at 1632.

30 Id. (emphasis added) (quoting Auburn Regional, 568 U.S. at 153).

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claims of congressional abrogation of states’ Eleventh Amendment immunity; 31

it is also reminiscent of the Court’s demand for clarity that has ebbed and

flowed with enforcement of congressionally created norms by judge-made

private rights of action not provided by Congress. 32 The common thread is the

exercise of weighty power belonging only to Congress. 33 And because it is

weighty, we require that Congress speak clearly when it chooses to wield such

power, mindful of the congressional authority’s potential impact upon

important constitutional values.

Against this backdrop, we ask whether “traditional tools of statutory

construction” demonstrate with sufficient clarity that the Waste Act’s 180-day

deadline is jurisdictional. As Nevada reminds us, 42 U.S.C. § 10139 does

clearly speak of jurisdiction. It does so in subsection (a), the provision outlining

the subject matter bases for civil actions that it entrusts to courts of appeals’

“original and exclusive jurisdiction.” 34 Well enough, but the 180-day deadline

is located in a different subsection, mundanely labeled “[d]eadline for

commencing action.” 35 While the fact that 42 U.S.C. § 10139 does speak in

jurisdictional terms in one provision could plausibly support an inference that

the deadline, too, is meant to serve jurisdictional purposes, the Court “has

31 See Pennhurst State Sch. & Hosp. v. Halderman, 465 U.S. 89, 99 (1984) (“[A]lthough

Congress has power with respect to the rights protected by the Fourteenth Amendment to

abrogate the Eleventh Amendment immunity, we have required an unequivocal expression

of congressional intent to ‘overturn the constitutionally guaranteed immunity of the several

States.’” (citations omitted)).

32 See Cannon v. Univ. of Chi., 441 U.S. 677, 749 (1979) (Powell, J., dissenting) (“[W]e

should not condone the implication of any private action from a federal statute absent the

most compelling evidence that Congress in fact intended such an action to exist.”).

33 See, e.g., Alexander v. Sandoval, 532 U.S. 275, 286 (2001) (“Like substantive federal

law itself, private rights of action to enforce federal law must be created by Congress. The

judicial task is to interpret the statute Congress has passed to determine whether it displays

an intent to create not just a private right but also a private remedy.” (citation omitted)).

34 42 U.S.C. § 10139(a)(1).

35 Id. at § 10139(c).

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often explained that Congress’s separation of a filing deadline from a

jurisdictional grant indicates that the time bar is not jurisdictional.” 36 And that

is the situation in the Waste Act: 42 U.S.C. § 10139(c), the filing deadline, is

separated from 42 U.S.C. § 10139(a)(1), the jurisdictional grant.

The Waste Act’s deadline provision does cross-reference the

jurisdictional grant. 37 But the jurisdictional grant is not explicitly

“condition[ed] . . . on the limitations period[].” 38 And while the deadline is

framed in mandatory terms, the Court has held that this is simply not enough

to mark out a procedural rule as jurisdictional. 39 Finally, we are aware of

nothing in the legislative history of the Waste Act that suggests that the

limitation is jurisdictional. 40 In the face of these facts, we are persuaded that

Congress has not sufficiently clearly indicated that the deadline imposed by 42

U.S.C. § 10139(c) is jurisdictional.

It is true that several courts in the past have generically described

“section 119” of the Waste Act, or 42 U.S.C. § 10139, as jurisdictional. 41 But

these courts have never held that the deadline provision is jurisdictional. The

D.C. Circuit’s description of the 42 U.S.C. § 10139 as jurisdictional came during

36 Kwai Fun Wong, 135 S. Ct. at 1633 (collecting cases).

37 42 U.S.C. § 10139(c) (“A civil action for judicial review described under subsection

(a)(1) of this section may be brought not later than the 180th day after the date of the decision

or action or failure to act involved . . . .”).

38 Kwai Fun Wong, 135 S. Ct. at 1633.

39 See id. at 1632 (holding that the mandatory—and emphatic—nature of a procedural

rule is “of no consequence” to question of whether the rule is jurisdictional).

40 See, e.g., H.R. Rep. No. 97-491(I), at 57 (1982) (“Section 119(c) provides that civil

actions for judicial review described under this section may be brought not later than the

180th day after the date of the action or decision or failure to act involved.”).

41 See Nuclear Energy Inst., Inc. v. EPA, 373 F.3d 1251, 1286–87 (D.C. Cir. 2004)

(“Statutes providing for judicial review, including section 119 of the NWPA, ‘are jurisdictional

in nature and must be construed with strict fidelity to their terms.’” (citation omitted)

(quoting Stone v. INS, 514 U.S. 386, 405 (1995))); see also PSEG Nuclear, LLC v. United

States, 465 F.3d 1343, 1349 (Fed. Cir. 2006) (“The NWPA contains only one jurisdictional

provision, section 119.”).

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its examination of the scope of 42 U.S.C. § 10139(a)(1)—the provision that,

again, expressly speaks of courts of appeals’ “original and exclusive

jurisdiction.” 42 And the Federal Circuit—despite once describing “section 119”

as jurisdictional—has since reserved judgment on whether the deadline

provision limits courts’ subject matter jurisdiction. 43 Neither court has

answered the question of whether the deadline listed in 42 U.S.C. § 10139(c)

imposes a limit on our subject matter jurisdiction or operates as a more

workaday claim-processing rule. 44 These decisions also preceded the Supreme

Court’s most recent guidance on the topic—and the Supreme Court “has [since]

been on a mission to rein in profligate uses of ‘jurisdiction,’” 45 in order to bring

discipline to our dialogue with Congress, the ultimate repository of power here.

Because we conclude that the deadline in 42 U.S.C. § 10139(c) is not

jurisdictional, we proceed to consider whether the continuing violations

doctrine may apply to Texas’s claims.

IV.

The continuing violations doctrine embodies a “muddled,” difficult body

of law that has long bedeviled courts and commentators alike. 46 The doctrine

42 See Nuclear Energy Inst., Inc., 373 F.3d at 1287 (focusing on the meaning of the

Waste Act’s “under this part” language).

43 See Neb. Pub. Power Dist. v. United States, 590 F.3d 1357, 1368 n.10 (Fed. Cir. 2010)

(“Setting aside whether the statute of limitations for a judicial review proceeding under

section 119(c) is jurisdictional in nature, there is no merit to the government’s argument.”).

44 See Kwai Fun Wong, 135 S. Ct. at 1632 (observing that most filing deadlines operate

as claim-processing rules).

45 Herr, 803 F.3d at 813.

46 See, e.g., Earle v. District of Columbia, 707 F.3d 299, 306 (D.C. Cir. 2012) (“Th[e

continuing violations] doctrine is ‘muddled,’ ‘intricate and somewhat confusing,’ . . . .”

(citations omitted)); Glass v. Petro-Tex Chemical Corp., 757 F.2d 1554, 1560 (5th Cir. 1985)

(“On at least three occasions, we have stated that the case law on the subject of continuing

violations is inconsistent and confusing.” (internal quotation and alterations omitted));

James R. MacAyeal, The Discovery Rule and the Continuing Violation Doctrine as Exceptions

to the Statute of Limitations for Civil Environmental Penalty Claims, 15 Va. Envtl. L.J. 589,

623 (1996) (“It is not clear whether the continuing violation doctrine is a rule of accrual or a

rule of tolling.”).

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takes two different forms that may plausibly render Texas’s claims under the

Waste Act timely. First, the doctrine has been used as a tolling mechanism

that forestalls the running of a statute of limitation in the appropriate

circumstances. This reflects the way in which the vast majority of the cases in

this Circuit have understood the doctrine. 47 However, courts have also used

the continuing violations doctrine as an apparent shorthand for an exercise in

statutory interpretation; in this incarnation, the continuing violations doctrine

applies when a court determines that a statute or regulation is most naturally

read as treating injuries as ongoing or continually accruing. 48 Applying either

of these versions of the continuing violations doctrine, we conclude that most

of Texas’s claims are untimely.

A.

In its form most commonly deployed in our Circuit, “[t]he continuing

violations doctrine is equitable in nature and extends the limitations period on

otherwise time[-]barred claims.” 49 We have dealt with this version most

frequently in the employment discrimination context, though we have

recognized its potential applicability in other areas of law as well. 50 The

47 See, e.g., Doe v. United States, 853 F.3d 792, 801 (5th Cir. 2017) (considering

application of continuing violations doctrine as inquiry into whether “equitable tolling is

appropriate”).

48 See Interamericas Invs., Ltd. v. Bd. of Gov’rs, 111 F.3d 376, 382 (5th Cir. 1997)

(“Here, the BHCA [Bank Holding Company Act] has more than per diem penalties; as

emphasized above, it refers to ‘continuing violations[.’] Furthermore, the BHCA uses the

present tense in describing the offenses, making reasonable reading it as contemplating

continuing violations.”).

49 Pegram v. Honeywell, Inc., 361 F.3d 272, 279 (5th Cir. 2004); see also Noack v. YMCA

of Greater Hous. Area, 418 Fed. App’x 347, 351 (5th Cir. 2011) (per curiam) (“The continuing-

violation exception is an equitable doctrine that extends the limitations period on otherwise

time-barred claims . . . .”).

50 Compare Heath v. Bd. of Sup’rs, 850 F.3d 731, 737 (5th Cir. 2017) (describing the

continuing violations doctrine as applying “when a plaintiff alleges a hostile work

environment claim”), with Doe, 853 F.3d at 801–802 (applying the continuing violations

doctrine to lawsuit against the United States under 28 U.S.C. § 2401(a)).

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Supreme Court has stressed that the equitable version of the doctrine should

be invoked “sparingly,” only when the situation calls for it. 51 We have heeded

this instruction: as we have repeatedly held, “[g]enerally, in determining if

equitable tolling is appropriate, we focus the inquiry ‘on what event, in fairness

and logic, should have alerted the average lay person to act to protect his

rights.’” 52

This test aligns strikingly well with the sole exception that Congress

drafted directly into the Waste Act’s deadline provision, which provides that a

party may avoid the strictures of the 180-day deadline if it can show that it

was subjectively unaware of the complained-of actions and that its lack of

knowledge was objectively reasonable in the circumstances. 53 But under the

Waste Act’s exception, this justifiable ignorance only earns the party an extra

180 days from when it does finally learn of the government’s actions. 54 The fact

that Congress already considered the situation in which we apply equitable

tolling and crafted its own safety valve provides reason to tread cautiously.

In any event, Texas points to federal actions that, “in fairness and logic,”

should have alerted it to act years ago. The fact that the government failed to

collect waste by the statutory deadline in 1998 has no doubt been obvious for

some time, since Texas itself is the current, unhappy possessor of that waste;

the Nuclear Regulatory Commission’s failure to complete the Yucca Mountain

licensing proceeding by 2012 has already spawned two very public lawsuits, as

51 See Nat’l R.R. Passenger Corp. v. Morgan, 536 U.S. 101, 113 (2002) (“Courts may

evaluate whether it would be proper to apply such [equitable tolling] doctrines, although they

are to be applied sparingly.” (emphasis added)); Doe, 853 F.3d at 802; Cherosky v. Henderson,

330 F.3d 1243, 1248 (9th Cir. 2003) (“The Supreme Court has made clear, however, that the

application of the continuing violations doctrine should be the exception, rather than the rule.

We are not free to depart from this directive.”).

52 Doe, 853 F.3d at 802 (quoting Messer v. Meno, 130 F.3d 130, 135 (5th Cir. 1997)).

53 42 U.S.C. § 10139(c).

54 Id.

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outlined above; and the Department of Energy’s consent-based siting activities

have resulted in public documents and public comment periods. In the face of

such paradigmatically public acts, and bearing in mind the Court’s instruction

that the doctrine must be used “sparingly,” this lawsuit simply does not

present a situation in which our equitable tolling version of the continuing

violations doctrine should apply.

B.

We have occasionally applied a slightly different version of the

continuing violations doctrine, which more closely resembles a classic exercise

in statutory interpretation. 55 We have invoked this second version of the

doctrine in interrogating whether the text of a particular statute, understood

in the appropriate context, “contemplates a continuing violation theory” of

claim accrual. 56

At least two of our previous cases have applied this approach in an

administrative setting. In Interamericas Investments, we considered whether

the Bank Holding Company Act allows for a continuing violations theory, such

that “a new claim accrues each day the violation [of the statute] is extant” and

that the statute of limitations is appropriately calculated from the latest

violation. 57 We concluded that it does, and our path to that conclusion

depended on the text of the statute as well as the relevant agency’s

interpretation, which we held to be entitled to deference. 58 In Newell Recycling

55 See Earle, 707 F.3d at 307 (alluding to “a second application of the continuing

violation doctrine if the text of the pertinent law imposes a continuing obligation to act or

refrain from acting”).

56 Interamericas Invs., Ltd., 111 F.3d at 382.

57 See id.

58 See id. (“[T]he BHCA is entrusted to the Board; therefore, that interpretation is due

the deference demanded by [Chevron]. To hold other than that a continuing violation is

allowed in this instance would be contrary not only to our precedent, but also to the plain

language of the BHCA and the Board’s interpretation of it.” (citation omitted)).

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Co. v. EPA, we cited to Interamericas Investments in briefly analyzing the

EPA’s interpretation of “improper disposal” under the relevant regulatory

scheme. We affirmed the EPA’s continuing violations theory of accrual on the

basis of that interpretation. 59

One clear distinction between those two cases and the one before us now

is that we have no administrative interpretation holding that a continuing

violations theory of accrual is appropriate under the Waste Act. Thus, our

examination must begin and end with the statutory text—and this text

suggests that Texas’s continuing violations theory of accrual is not available.

The Waste Act provides that civil actions “alleging the failure of the

[government] to make any decision, or take any action, required under this part”

are subject to the 180-day statute of limitations. 60 The statute then explicitly

provides that a civil action “may be brought not later than the 180th day after

the date of the . . . failure to act involved,” repeatedly including the phrase

“failure to act” when describing the deadline. 61 By its plain language, the

Waste Act treats failures to act as subject to its deadline. And by its plain

language, the Waste Act speaks of failures to act as discrete events, not as

ongoing, durational conditions. 62

But under Texas’s continuing violations theory, this language would be

rendered practically meaningless. Almost all “failure[s] to act” would be

ongoing by definition, and would be immunized from the 180-day deadline that

59 See Newell Recycling Co. v. EPA, 231 F.3d 204, 206–207 (5th Cir. 2000).

60 42 U.S.C. § 10139(a)(1)(B) (emphasis added).

61 Id. § 10139(c) (emphasis added).

62 Compare id. (“A civil action for judicial review described under subsection (a)(1) of

this section may be brought not later than the 180th day after the date of the . . . failure to

act involved . . . .” (emphasis added)), with 12 U.S.C. § 1847(b)(1) (“Any company which

violates, and any individual who participates in a violation of, any provision of this chapter,

. . . shall forfeit and pay a civil penalty of not more than $25,000 for each day during which

such violation continues.” (emphasis added)).

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Congress provided. Because the statute expressly sets dates for the

government’s actions that Texas complains have yet to occur, the more natural

reading of the statute is that 180-day timer runs from those dates—1998 for

the Department of Energy’s receipt of waste from the states, and 2012 for

Nuclear Regulatory Commission’s completion of the Yucca Mountain licensing

procedure. 63

Texas’s proposed application of the continuing violations doctrine would

also invite litigants to short-circuit the Waste Act’s timeliness requirement by

framing claims in “failure to act” terms, just as Texas has done in this case. As

the Nuclear Regulatory Commission points out, after the Aiken II decision, it

has been mostly devoting what public funds it has left to producing a Safety

Evaluation Report, a necessary precursor to eventually resolving the licensing

application and thus a part of the overall licensing process. But Texas frames

this decision as a continuing failure to act, rather than a decision to act in a

particular way that it does not like. 64

The scale of the statute of limitations also bespeaks a congressional

purpose to limit civil actions to the ones occurring in the immediate aftermath

of a particular Waste Act–related decision by the government. Congress has

63 See 42 U.S.C. § 10134(d) (“[T]he Commission shall issue a final decision approving

or disapproving the issuance of a construction authorization not later than the expiration of

3 years after the date of the submission of such application, except that the Commission may

extend such deadline by not more than 12 months [i.e., by June 2012] . . . .”); 42 U.S.C. §

10222(a)(5)(B) (“[I]n return for the payment of fees established by this section, the Secretary,

beginning not later than January 31, 1998, will dispose of the high-level radioactive waste or

spent nuclear fuel involved as provided in this subchapter.”); see also Public Citizen v. NRC,

845 F.2d 1105, 1108 (D.C. Cir. 1988) (“We have some doubts about the argument [that agency

failures to act extend the Waste Act’s deadline for claims indefinitely] even as a general

matter.”).

64 The D.C. Circuit, examining the Waste Act’s timeliness requirement several

decades ago, explained that “[a]lmost any objection to an agency action can be dressed up as

an agency’s failure to act,” and that to allow petitioners to simply frame their claims as such

and apply a different statute of limitations on that basis would be to “make a nullity of

statutory deadlines.” See id.

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pegged the appropriate period as approximately half of a year; yet under

Texas’s approach, decisions made roughly twenty years ago would be open to

challenge today. It is beyond our compass to graft either version of the

continuing violations doctrine onto the Waste Act’s deadline provision. Texas

generally points to actions and omissions that passed far more than 180 days

ago; we must conclude that the bulk of its arguments are untimely, an outcome

that aligns comfortably with the congressional view that to do otherwise would

take the third branch into the middle of a most sensitive and delicate

accommodation of the competing interests of the several states, here a

quintessential political endeavor laced with strictures of science not subject to

decision by votes.

V.

Texas does complain of two actions that occurred within the Waste Act’s

180-day limitation period: it points out that the Department of Energy

disseminated a January 2017 policy document and subsequently engaged in a

several-months-long formal comment period concerning consent-based siting

for waste disposal. But of course, the Waste Act also specifically limits our

review to “final decision[s] or action[s]” undertaken by the government.” 65

In Aiken I, the D.C. Circuit specifically rejected the argument that a

Department of Energy policy announcement, “which has no legal

consequence,” could constitute a “final decision or action” subject to challenge,

6542 U.S.C. § 10139(a)(1)(A) (emphasis added); see also Nuclear Energy Inst., Inc., 373

F.3d at 1287 (“We have no quarrel with the commonsensical proposition that section 119 [of

the NWPA] brings within judicial purview only those final agency actions embraced by the

express language of the NWPA.”). At one point, Texas attempts to cast these, too, as examples

of agency inaction, but Texas’s concern is with discrete actions that it thinks are statutorily

barred. See Pub. Citizen, 845 F.2d at 1107–08 (rejecting the argument that “the mere

issuance of a policy statement could not start the time clock running” because it represents

an “ongoing failure,” not a discrete action).

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as required by the Waste Act. 66 That is what the January 2017 policy document

appears to be: a policy document with “no legal consequence,” and which Texas

has no basis to challenge under the Waste Act.

Relatedly, Texas v. U.S. Department of Energy explained that we

“interpret ‘finality,’ as that concept is used in the Administrative Procedure

Act, in a ‘pragmatic way,’ and that approach is appropriate here[, in the Waste

Act context,] as well.” 67 Certainly under the Administrative Procedure Act, the

draft policy document and accompanying solicitation of public comments would

not constitute final agency actions. Indeed, in that context, the Supreme Court

has instructed us that finality has two components: “First, the action must

mark the ‘consummation’ of the agency’s decisionmaking process—it must not

be of a merely tentative or interlocutory nature. And second, the action must

be one by which ‘rights or obligations have been determined,’ or from which

‘legal consequences will flow.’” 68 The dissemination of a draft policy

contemplating consent-based siting and the solicitation of comments on that

policy satisfy neither of the Administrative Procedure Act’s two finality prongs.

For that reason, we lack jurisdiction to consider the Department of Energy’s

2017 consent-based siting activities—the sole activities falling within the

Waste Act’s permissible timeliness range—as they are not sufficiently final

under the statute.

VI.

We hold that Texas’s claims do not satisfy the statutory requirements of

timeliness or finality, and we therefore must dismiss them.

66 645 F.3d at 437.

67 764 F.2d 278, 282 (5th Cir. 1985) (citation omitted) (quoting Pennzoil Co. v. FERC,

645 F.2d 394, 399 (5th Cir. 1981)).

68 Bennett v. Spear, 520 U.S. 154, 177–78 (1997) (citations omitted) (quoting Chi. & S.

Air Lines, Inc. v. Waterman S.S. Corp., 333 U.S. 103, 113 (1948), and Port of Bos. Marine

Terminal Ass’n v. Rederiaktiebolaget Transatlantic, 400 U.S. 62, 71 (1970)).

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