Opinion

Ohio Citizens for Responsible Energy, Inc. v. Nuclear Regulatory Commission

  • 803 F.2d 258
  • 17 Envtl. L. Rep. (Envtl. Law Inst.) 20
Court
Court of Appeals for the Sixth Circuit
Filed
Oct 14, 1986
Status
Published
Author
Jones
On the bench
Jones, Milburn
Cited by
1 cases
Authority
More cited than 19.6%

The opinion

NATHANIEL R. JONES, Circuit Judge,

dissenting.

I respectfully dissent from the majority’s decision that this court lacks jurisdiction in this case. I believe that the order denying petitioner’s motion to reopen the record is appealable under the “collateral order” doctrine. Cohen v. Beneficial Industrial Loan Corp., 337 U.S. 541 , 69 S.Ct. 1221 , 93 L.Ed. 1528 (1949). The Supreme Court has declared that an order is final for the purposes of appeal when it meets the following criteria: 1) the order must be effectively unreviewable unless it is reviewed immediately; 2) it must conclusively determine the disputed question; and 3) it must involve a claim of right separable from, and collateral to, rights asserted in the action. Mitchell v. Forsyth, 472 U.S. 511 , 105 S.Ct. 2806 , 86 L.Ed.2d 411 (1985).

The claim of right decided by the denial to reopen the record is the right of the citizens group to participate in an adjudicatory proceeding before the licensing of the nuclear plant. This right to participate is effectively lost once a license has been granted. This right is conclusively denied by the decision not to reopen the record. Most significantly, it is a claim of right separate from the merits of licensing the plant. Even if the plant is not licensed, petitioner’s right to participate in the decisionmaking process will still have been infringed. Thus, it is incorrect to imply that the merits of the order are not “ripe” for adjudication until the license itself has been either granted or denied.

For these reasons I would find the order to be final and appealable.

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.

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