Florida Power & Light Company v. Lorion

PETITIONER: Florida Power & Light Company
LOCATION: New Mexico State Police Headquarters

DOCKET NO.: 83-703
DECIDED BY: Burger Court (1981-1986)
LOWER COURT: United States Court of Appeals for the District of Columbia Circuit

CITATION: 470 US 729 (1985)
ARGUED: Oct 29, 1984
DECIDED: Mar 20, 1985

Charles A. Rothfeld - on behalf of the petitioners in 83-1031, pro hac
Harold F. Reis - on behalf of the petitioners in 83-703
Martin H. Hodder - on behalf of the respondents

Facts of the case


Media for Florida Power & Light Company v. Lorion

Audio Transcription for Oral Argument - October 29, 1984 in Florida Power & Light Company v. Lorion

Warren E. Burger:

The Court will hear arguments first this morning in Florida Power and Light Company against Lorion and the consolidated case.

Mr. Rothfeld, you may proceed whenever you are ready.

Charles A. Rothfeld:

Mr. Chief Justice, and may it please the Court, this case presents one narrow issue, whether the word 189 of the Atomic Energy Act to refer to all proceedings or only to certain types of formal agency proceedings.

This case began when the respondents sent a letter to the Nuclear Regulatory Commission asking the Commission to suspend the license of the Florida Power and Light Company's Turkey Point nuclear plant.

Under the Commission's procedures, such a so-called Section 2.206 request from the public must be evaluated by the Commission staff.

If the request is found to present a substantial health or safety concern, the Commission will issue an order to the operator of the plant asking it to show cause why its license should not be suspended, modified, or revoked.

Here, the Commission staff evaluated respondent's request, in the process compiling a 547-page record.

On the basis of this record, the director of the Commission's Office of Nuclear Reactor Regulation concluded that respondent's request did not raise a substantial health or safety concern, and be therefore issued an opinion declining to take action against the plant.

Respondent then challenged this decision in the Court of Appeals for the District of Columbia circuit, but that court decided that it lacked jurisdiction to hear the case.

The court based its decision on the language and the two-part structure of Section 189.

Section 189(a) provides for hearings in proceedings relating to the licensing of nuclear plants that are held before the Commission.

Section 189(b) then makes provision for review in Courts of Appeals of all orders entered during the course of proceedings of the kind described in Section 189(a).

Here, the Court of Appeals read the word 189(a) to refer only to formal agency action, and it therefore concluded that the types of orders made reviewable in the Court of Appeals under Section 18(b) are only orders entered during the course of such formal proceedings.

The court therefore concluded that challenges to the denial of Section 2.206 requests had to be reviewed under an abuse of discretion standard first in the District Court with the decision of those courts in turn made reviewable in Courts of Appeals.

This system of judicial review devised by the Court of Appeals in this case, which departs from the practice followed in several of the circuits, finds no support in the statutory language or legislative history, and advances no identifiable interest to the public.

If the Court of Appeals believed that the word "proceeding" generally applies only to formal agency action, it plainly was mistaken.

The Administrative Procedure Act, which is incorporated by reference into the Atomic Energy Act, and therefore should control in this case, defines the term "agency proceedings" to include a wide range of agency action, formal and informal.

Among other things, agency proceedings under the APA include all agency process respecting the grant, denial, or modification of a license.

John Paul Stevens:

Mr. Rothfeld, can I interrupt you just a second to be sure I have your position correct?

Do you take the position that there was or was not a proceeding within the meaning of the first sentence of 2239(a)?

Charles A. Rothfeld:

Justice Stevens, we believe that there was such a proceeding.

John Paul Stevens:

There was a proceeding?

Charles A. Rothfeld:


John Paul Stevens:

But it was not required.

There was no requirement that there be a hearing in that proceeding.

Charles A. Rothfeld:

We believe that the agency had discretion to dispense with the hearing if one was unnecessary, as it was in this case.

John Paul Stevens:

And so the word "shall" doesn't mean what it says?

Charles A. Rothfeld:

Well, this Court repeatedly has indicated that statutes that create hearing rights implicitly contain the understanding that administering agencies can dispense with the hearing if one is unnecessary, or when the person seeking the hearing fails to advance any issue that a hearing might help resolve.

John Paul Stevens:

In other words, the word "shall" does not mean what it says?

Charles A. Rothfeld:

I think, as this Court has indicated, "shall" should be read to contain the understanding that Congress didn't want agencies to conduct meaningless hearings, and I think that that... the types of cases that have raised this issue really make that clear.