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

> Court of Appeals for the Sixth Circuit · October 14, 1986 · 803 F.2d 258

URL: https://www.frixlaw.com/law-library/cases/8945424

## Case

- **Full name:** OHIO CITIZENS FOR RESPONSIBLE ENERGY, INC. v. NUCLEAR REGULATORY COMMISSION and United States of America, and Cleveland Electric Illuminating Company, Intervenors
- **Court:** Court of Appeals for the Sixth Circuit
- **Decided:** October 14, 1986
- **Citations:** 803 F.2d 258; 17 Envtl. L. Rep. (Envtl. Law Inst.) 20
- **Precedential status:** Published
- **Opinion:** Dissent by Jones
- **Judges:** Jones, Milburn
- **Cited by:** 1 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/8945424

## Opinion text

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.

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/8945424. Public record. Not legal advice.