Professional Documents
Culture Documents
2d 1018
6 ERC 1158, 4 Envtl. L. Rep. 20,091,
4 Envtl. L. Rep. 20,224
'5. Intervenors request financial assistance for legal fees, technical experts, and
witnesses in the amount of $30,000.00 under such conditions and reasonable
regulations established by the Commission to assure that the said monetary
grant is properly and appropriately spent so as to insure full and complete
hearings in the above captioned matter in the most expeditious way.'
This pleading did not allege that the petitioners were indigent.1 The
Commission denied petitioners' motion, stating:
It is so ORDERED.
All parties contend that the case is properly before us. The parties shared
contention does not, however, relieve us of the obligation of making an
independent determination of our jurisdiction. The starting point is the
Administrative Orders Review Act 28 U.S.C. 2342, which 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
Atomic Energy Commission made reviewable by section 2239 of title 42.
10
(b) Any final order entered in any proceeding of the kind specified in
subsection (a) of this section shall be subject to judicial review in the manner
prescribed in the Act of December 29, 1950, as amended, and to the provisions
of section 10 of the Administrative Procedure Act, as amended.
11
The present equivalent of the Act of December 29, 1950, as amended, is the
Administrative Orders Review Act, 28 U.S.C. 2341-51. Thus if the order
denying petitioners' motion for $30,000 is a final order entered in a 2239
licensing proceeding, it is reviewable here, and not elsewhere. If it is not such
an order, it is not reviewable here in the first instance, but may be reviewable,
pursuant to the Administrative Procedure Act and under some other
jurisdictional statute, in a district court. See, e.g., Izaak Walton League of
America v. Schlesinger, 337 F.Supp. 287 (D.D.C.1971); Crowther v. Seaborg,
312 F.Supp. 1205 (D.Colo.1970). The jurisdictional question has two aspects:
(1) is the order one entered in a proceeding of the king specified in 2239(a), and
(2) assuming it is of that kind, is it final.
12
The parties rely on the decision of the Second Circuit in Greene County
Planning Board v. Federal Power Commission, 455 F.2d 412, 425-427 (2d
Cir.), cert. denied, 409 U.S. 849, 93 S.Ct. 56, 34 L.Ed.2d 80 (1972). In that
case the court concluded it had jurisdiction to review an order of the Federal
Power Commission which refused to pay expenses and fees of intervening
parties asserting interests similar to those of the petitioners before us. That case
is not in point, however, because the statutory framework in which orders of the
Federal Power Commission are reviewed is quite different. Section 313(b) of
the Federal Power Act, 16 U.S.C. 825l(b) provides that 'any party to a
proceeding . . . aggrieved by an order issued by the Commission in such
proceeding may obtain a review of such order in the United States Court of
Appeals . . ..' The jurisdictional grant to the court of appeals is not limited to
final orders. Instead the finality requirement has been superimposed by the
courts where the same issues could be reviewed upon final hearing. See, e.g.,
Federal Power Commission v. Metropolitan Edison Co., 304 U.S. 375, 383385, 58 S.Ct. 963, 82 L.Ed. 1408 (1938). Thus the Second Circuit was acting
within its statutory jurisdiction in holding the orders to be reviewable whether
or not technically final.2 Here we must first cross the jurisdictional threshold
14
15
16
But the practical difficulties cannot serve to enlarge the exclusive jurisdictional
grant of 28 U.S.C. 2342(4) or to contract whatever jurisdiction may exist in the
district courts. Nor are we dealing with the considerably more flexible standard
of ripeness for pre-enforcement judicial review of agency action under 10 of the
Administrative Procedure Act. See, e.g., Abbott Laboratories v. Gardner, 387
U.S. 136, 87 S.Ct. 1507, 18 L.Ed.2d 681 (1967); Toilet Goods Association, Inc.
v. Gardner, 387 U.S. 158, 87 S.Ct. 1520, 18 L.Ed.2d 697 (1967); Gardner v.
Toilet Goods Association, Inc., 387 U.S. 167, 87 S.Ct. 1526, 18 L.Ed.2d 704
(1967). In these cases the district court's jurisdiction did not depend upon the
type of order entered by the agency. The concern was the propriety of
injunctive or declaratory relief at that stage, not finality. We have no doubt that
the order denying petitioners' motion for $30,000.00 was intended by the
agency to be its final action upon that request, and that his final agency action
had an immediate substantial impact upon petitioners. Putting these matters
beyond doubt, however, does not resolve the doubt as to whether this court has
jurisdiction under 28 U.S.C. 2342(4).
17
18
19
But although we agree that judicial review at this time might not disrupt the
orderly processes of adjudication, we cannot say that in the context of the
licensing proceeding rights and obligations have been determined or legal
consequences will flow from the agency's action. Although the ruling was
intended as a final agency interpretation of the law on payment of intervenors
expenses, the intervenors have been allowed to intervene and participate, they
have not pleaded an inadequacy of financial resources to participate
effectively,3 and their claim to be reimbursed for their expenses can be
reviewed by this court on a petition to review the Commission's action on the
license application.
20
21
delay was causing irreparable injury. The court recognized the distinction
between ripeness for judicial review under the Administrative Orders Review
Act and finality of determination under the Administrative Orders Review Act,
for it held that the district court and not this court properly considered the case
in the first instance.
22
23
Neither petitioners nor the other parties have suggested that we need consider
any materials other than the pleading field with the agency and the agency
order. See 28 U.S.C. 2347
Lynchburg Gas Co. v. Federal Power Commission, 284 F.2d 756 (3d Cir.
1966), in which we held an order denying intervention to be nonfinal in the
particular circumstances, is like Greene County Planning Board v. Federal
Power Commission, supra, an application of a judge-made nonjurisdictional
rule of finality. It does not control against the petitioners any more than Greene
County controls in their favor