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OHIO EDISON CO. v. ZECH

December 15, 1988

Ohio Edison Company, Plaintiff,
v.
Lando W. Zech, et al., Defendants



The opinion of the court was delivered by: RICHEY

 CHARLES R. RICHEY, UNITED STATES DISTRICT JUDGE.

 Plaintiff, a public utility in northern Ohio, claims that the Nuclear Regulatory Commission ("NRC") cannot impartially consider its application to amend and remove certain restrictive conditions imposed pursuant to the anti-trust laws on its license to own and operate the Perry nuclear power plant because of alleged threats by at least one Senator to overrule by legislation any amendments the NRC makes to plaintiff's license. Plaintiff asserts that these threats make it impossible for the NRC to evaluate its application impartially and, therefore, will result in a denial of due process. As such, plaintiff is asking the Court to issue an order suspending the restrictive conditions of its license or, in the alternative, to order the NRC to suspend the restrictive conditions.

 Now before the Court is defendants' motion to dismiss this suit for lack of jurisdiction pursuant to Fed. R. Civ. P. 12(b)(1) or, in the alternative, to transfer this case to the Court of Appeals. Defendants contend that this Court lacks jurisdiction because the Atomic Energy Act vests the Court of Appeals with exclusive jurisdiction to review final orders of the NRC and the relief requested by plaintiff might affect that jurisdiction. See Telecommunications Research & Action Center v. F.C.C., 242 U.S. App. D.C. 222, 750 F.2d 70 (D.C. Cir. 1984). Defendants also contend that this suit should be dismissed as it is premature because plaintiff has failed to exhaust its administrative remedies. Upon careful consideration of defendants' motion, the supporting and opposing legal memoranda, oral arguments by the parties, and the underlying law, the Court finds that it has no authority to determine whether plaintiff's suit is premature because the Court of Appeals has exclusive jurisdiction over requests for interlocutory review of NRC proceedings. The Court will, therefore, transfer this case to the Court of Appeals where jurisdiction properly lies.

 BACKGROUND

 In 1977, the NRC granted the construction permit for the Perry Nuclear Power Plant. At that time, the NRC held a hearing on the antitrust implications of licensing the Perry plant pursuant to its statutory authority. See 42 U.S.C. § 2135. Based on those hearings, the NRC imposed eleven conditions restricting the business activities of Perry's owners, one of which is plaintiff.

 Plaintiff contends that "the expectation regarding the competitive advantage of large nuclear power plants that would generate power at lower cost was a necessary precondition to the NRC's imposition of the Perry antitrust conditions." Complaint at para. 11. This expectation did not, however, come to fruition. As such, plaintiff applied to the NRC for a suspension of the restrictive conditions on its license on September 18, 1987.

 On March 29, 1988, while plaintiff's application was still pending before the NRC, but not decided which is still the case today, Ohio junior Senator Howard M. Metzenbaum, the Chairman of the Senate's Subcommittee on Energy and Natural Resources, proposed an amendment to the proposed Uranium Revitalization, Tailings and Enrichment Act. This amendment provided that "the Nuclear Regulatory Commission shall not suspend or modify the application of any antitrust provision contained in the Perry operating license No. NPF-58, as such provision applies to any license of the Perry Nuclear Powerplant, Unit 1." 134 Cong. Rec. S. 3257 (daily ed. March 29, 1988).

 I.

 THIS COURT DOES NOT HAVE JURISDICTION TO DETERMINE WHETHER THE NRC SHOULD SUSPEND THE RESTRICTIVE CONDITIONS ON PLAINTIFF'S LICENSE BECAUSE THE COURT OF APPEALS IS VESTED WITH EXCLUSIVE JURISDICTION TO MAKE THIS DETERMINATION.

 The law of this Circuit is that "where a statute commits review of agency action to the Court of Appeals, any suit seeking relief that might affect the Circuit Court's future jurisdiction is subject to the exclusive review of the Court of Appeals." Telecommunications Research & Action v. F.C.C. (" TRAC "), 242 U.S. App. D.C. 222, 750 F.2d 70, 72 (D.C. Cir. 1984).

 The first prong of the test set forth in TRAC requires this court to determine at the outset whether any "statute commits review of [NRC] action to the Court of Appeals." The NRC proceeding in which plaintiff wishes the Court to intervene was commenced under 42 U.S.C. § 2239. The Court of Appeals has exclusive jurisdiction to review final orders of such proceedings. See 28 U.S.C. § 2342(4). Accordingly, the first prong of the test required by TRAC has been satisfied.

 The other prong of the test set forth in TRAC requires the Court to determine whether the relief requested by plaintiff might have an effect on the Court of Appeal's future jurisdiction. TRAC, 750 F.2d at 75. This prong has also been satisfied because if this Court were to order, as requested by plaintiff, the removal of the restrictions here involved itself or to order the agency to remove them, such action would deprive the Court of Appeals of the opportunity to review a final order issued by ...


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