Florida Power & Light Co. v. Lorion

Justice Stevens,

dissenting.

Anyone may write a letter to the Nuclear Regulatory Commission requesting it to initiate enforcement proceedings. 1 Today the Court holds that Congress has required review in the court of appeals whenever the Commission denies such a request. This holding is inconsistent with the plain language *747 of the controlling statute and the Commission’s regulations. It also ignores the settled principle of administrative law that “individual decisions [of an administrative agency] not to take enforcement action in response to citizen requests are presumptively not reviewable under the Administrative Procedure Act, 5 U. S. C. §§ 701-706 .” Heckler v. Chaney, post, at 838 (Brennan, J., concurring).

1 — 1

There is no ambiguity in the language of the relevant statutes. Title 28 U. S. C. § 2342 provides:

“The court of appeals . . . has exclusive jurisdiction to enjoin, set aside, suspend (in whole or in part), or to determine the validity of—

“(4) all final orders of the [Nuclear Regulatory Commission] made reviewable by section 2239 of title 42 . . . .” 2

Thus, the question of statutory construction is whether the Commission’s refusal to initiate an enforcement proceeding is a “final orde[r] . . . made reviewable by section 2239 of title 42.”

The cross-referenced statute 3 contains two subsections, 42 U. S. C. §§ 2239 (a), (b). Subsection (b) confers jurisdiction on the court of appeals to review final orders “entered in any proceeding of the kind specified in subsection (a) of *748 this section.” Thus, the orders of the Nuclear Regulatory Commission that are reviewable in the court of appeals are only those entered in the specific kinds of proceedings identified in subsection (a). 4 That subsection requires that the Commission grant a hearing upon the request of any interested person in “any proceeding under this chapter, for the granting, suspending, revoking, or amending of any license or construction permit, . . . and . . . any proceeding for the issuance or modification of rules and regulations dealing with the activities of licensees.” Through the cross-reference in subsection (b), proceedings initiated for these purposes are also the proceedings in which the final order of the agency is reviewable in the court of appeals.

The Commission has adopted regulations concerning proceedings to modify, suspend, or revoke a license. These regulations provide that the “Director of Nuclear Reactor Regulation . . . may institute a proceeding to modify, suspend, or revoke a license or for such other action as may be proper by serving on the licensee an order to show cause.” 10 CFR § 2.202 (a) (1984). These proceedings, of course, are the proceedings described in § 2239(a) which are reviewable in the court of appeals under § 2239(b). The Director may initiate these proceedings on his own information or on the basis of materials submitted by any citizen in a request for enforcement which “set[s] forth the facts that constitute the basis for the request.” 10 CFR § 2.206 (a) (1984). 5 In the latter event, the regulations explain that the Director, at his *749 discretion, 6 either will or will not institute the requested proceeding. § 2.206(b). 7

In this case, respondent Lorion (hereafter respondent) sent a 10-paragraph letter to the Commission urging that safety problems might require a license suspension or a temporary shut-down of Florida Power & Light Co’s. Turkey Point Unit #4. App. 8. Three and a half weeks later, the Director of Nuclear Reactor Regulation provided respondent with a written opinion entitled “Director’s Decision Under 10 CFR 2.206.” 8 As the Commission’s regulation plainly states, the Director’s decision “shall either initiate the requested proceeding” or shall advise the requesting party “that no proceeding will be instituted in whole or in part, with respect to his request, and the reasons therefor.” In this case, the Director’s decision plainly was of the latter type; he decided not to initiate a proceeding for any of the purposes enumerated in § 2239(a) and § 2.202.

Because no proceeding of the kind described in § 2239(a) was initiated, the Commission was not required to grant respondent’s request for a hearing. 9 Likewise, under the *750 express language of § 2239(b), the Director’s denial of respondent’s request was not a “final order entered in any proceeding of the kind specified in subsection (a)” which would be reviewable in the court of appeals.

The Court rejects the plain and simple construction of the statutory language, observing that “subject-matter jurisdiction should [not] turn on such semantic quibbles.” Ante, at 745, n. 11. Proper deference to the powers of Congress, however, requires exactly that result. It is hardly an equivocation to argue that “[statutory construction must begin with the language employed by Congress and the assumption that the ordinary meaning of that language accurately expresses the legislative purpose.” Park ’N Fly, Inc. v. Dollar Park and Fly, Inc., 469 U. S. 189, 194 (1985). Even if the Court’s tortured effort to generate an ambiguity in the statute were supported by an implicit assumption that the court of appeals is the more efficient forum for review of informal agency decisionmaking, that assumption is debatable at best and does not justify judicial revision of the statutory text.

Congress’ failure to provide an avenue for direct appeal to the court of appeals of informal agency decisions like the one involved in this case may well implement its judgment that agency actions “committed to agency discretion by law” are not reviewable by the federal courts. 5 U. S. C. § 701 (a)(2). In this case, the Director decided not to initiate an enforcement proceeding under § 2239(a) and §2.202. “This Court has recognized on several occasions over many years that an agency’s decision not to prosecute or enforce, whether through civil or criminal process, is a decision generally com *751 mitted to an agency’s absolute discretion. . . . This recognition of the existence of discretion is attributable in no small part to the general unsuitability for judicial review of agency decisions to refuse enforcement.” Heckler v. Chaney, post, at 831. 10

The reviewability of such decisions does not, in my opinion, depend on the kind of public record that the agency chooses to make before it decides not to initiate an enforcement proceeding. In this case, without adversary presentations, the agency elected to compile a 547-page record from available materials before it denied respondent’s request that it commence a procéeding to suspend Florida Power & Light’s license. The agency is to be commended for giving the public access to the reasoning that led to its decision. The lengthy record, however, does not make the agency’s inaction here any more reviewable than if respondent’s request had been rejected in a one-paragraph letter sent by return mail.

There are, of course, cases in which an agency’s refusal to initiate an enforcement proceeding constitutes such a clear abdication of the agency’s statutory responsibilities that a court may order it to take action. See, e. g., Dunlop v. Bachowski, 421 U. S. 560, 566-576 (1975). Cases of that kind, however, represent the exception rather than the rule, 11 for “[t]he decision to initiate administrative proceedings against an individual or corporation is very much like the prosecutor’s decision to initiate or move forward with a criminal prosecution” which has traditionally been unreviewable. Butz v. Economou, 438 U. S. 478, 515 (1978).

*752 As the Court recognizes, ante, at 735, n. 8, 745-746, n. 11, in this case it is not necessary to decide whether the Director’s denial of an informal enforcement request is an exercise of unreviewable agency discretion. The only question raised is whether review of such actions, if any, shall be had in the court of appeals. The view that “Congress has not intended courts to review such mundane matters,” Heckler v. Chaney, post, at 839 (Brennan, J., concurring), nevertheless, supports an interpretation of § 2239(b) that would deny court of appeals review. Only this construction does justice to the plain meaning of the relevant jurisdictional statutes, to the Commission’s regulations, and to settled principles of administrative law.

Accordingly, I respectfully dissent.

The Commission has adopted regulations specifying how such letters should be processed. See 10 CFR § 2.206 (1984).

Although the statute actually refers to the Atomic Energy Commission, § 201(f) of the Energy Reorganization Act of 1974, 88 Stat. 1242 , 42 U. S. C. § 5841 (f), transferred the relevant licensing and regulatory authority of that Commission to the Nuclear Regulatory Commission. Section 301(g) of the same Act provides that the new Commission is successor to the old for purposes of applying statutes governing judicial review. 88 Stat. 1248 , 42 U. S. C. § 5871 (g).

Title 42 U. S. C. § 2239 was enacted as § 189 of the Atomic Energy Act, 68 Stat. 955 .

The relevant portion of § 2239(a) reads as follows:

“(1) In 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.”

“Any person may file a request for the Director of Nuclear Reactor Regulation . . to institute a proceeding pursuant to §2.202 to modify, suspend or revoke a license, or for such other action as may be proper.”

Section 2.206(c)(2) provides that “[n]o petition or other request for Commission review of a Director’s decision under this section will be entertained by the Commission.” The regulations, however, do allow that in the exceptional case “the Commission may on its own motion review that decision ... to determine if the Director has abused his discretion.”

Section 2.206(b) provides:

“Within a reasonable time after a request pursuant to paragraph (a) of this section has been received, the Director of Nuclear Reactor Regulation . . . shall either institute the requested proceeding in accordance with this subpart or shall advise the person who made the request in writing that no proceeding will be instituted in whole or in part, with respect to his request, and the reasons therefor.” (Emphasis added.)

In re Florida Power & Light Co. (Turkey Point Plant, Unit 4), 14 N. R. C. 1078 (1981).

See Illinois v. NRC, 591 F. 2d 12, 14 (CA7 1979); cf. Porter County Chapter of the Izaak Walton League of America, Inc. v. NRC, 196 U. S. App. D. C. 456, 462, 606 F. 2d 1363 , 1369 (1979). In the Court of Appeals, the Commission defended its refusal to grant respondent a hearing on her *750 § 2.206 request by succinctly stating that “ ‘[a] request for an enforcement proceeding is just that — a request. Unless and until granted, it is not a “proceeding” where the requester has any right to present evidence.’” See Brief for Respondent 26-27 (quoting Brief for the Nuclear Regulatory Commission in No. 82-1132 (CADC), pp. 24-25).

See also Southern R. Co. v. Seaboard Allied Milling Corp., 442 U. S. 444, 455 (1979); NLRB v. Sears, Roebuck & Co., 421 U. S. 132, 138 (1975); Moog Industries, Inc. v. FTC, 355 U.S. 411, 413 (1958); cf. United States v. Batchelder, 442 U. S. 114, 124 (1979).

As the Bachowski case holds, judicial review in such cases may be authorized by 28 U. S. C. § 1337 , conferring jurisdiction on the district court. 421 U. S., at 566. The Court, however, identifies no prior case in which it has held that an agency decision not to initiate enforcement proceedings is subject to direct review in a court of appeals.