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Johnston v. Nuclear Regulatory Commission of

decided: July 15, 1985.

JOSEPH W. JOHNSTON, PLAINTIFF-APPELLANT,
v.
NUCLEAR REGULATORY COMMISSION OF THE UNITED STATES OF AMERICA, ET AL., DEFENDANTS-APPELLEES AND COMMONWEALTH EDISON COMPANY, INTERVENOR DEFENDANT-APPELLEE



Appeal from the United States District Court for the Northern District of Illinois, Eastern Division. No. 83 C 3615 - Stanley J. Roszkowski, Judge.

Bauer, Coffey and Flaum, Circuit Judges.

Author: Coffey

COFFEY, Circuit Judge.

This appeal raises the question of whether the open meeting requirement of the "Government in the Sunshine Act," 5 U.S.C. § 552(b) ("Sunshine Act"), applies to meetings of the Nuclear Regulatory Commission's Atomic Safety Licensing Board. Under the unique facts of this case, resolution of this issue requires a determination of the validity of the Nuclear Regulatory Commission's regulations implementing the Sunshine Act, an issue which is exclusively within the jurisdiction of the United States Court of Appeals for the District of Columbia. We dismiss the case.

I.

Believing that increased openness would make government more fully accountable to the people, Congress enacted the Sunshine Act to open the deliberations of multi-member federal agencies to public view. Common Cause v. Nuclear Reg. Comm., 218 U.S. App. D.C. 262, 674 F.2d 921, 928 (D.C. Cir. 1982). Agencies covered by the Sunshine Act are defined as:

"Any agency, as defined in § 552(e) of this title, headed by a collegial body composed of two or more individual members, a majority of whom are appointed to such position by the President with the advice and consent of the Senate, and any subdivision thereof authorized to act on behalf of the agency."

§ 552 (b)(a)(1). When a quorum of individuals belonging to the collegial body heading the agency meet to conduct official agency business, the meeting must be open to the public unless one of the Act's exemptions is applicable. §§ 552b(a), (b), and (c). The agency must announce, at least a week in advance of the meeting, its subject matter, time, place, and whether the meeting will be open or closed. § 552b(e)(1). Most closed meetings must be transcribed or recorded. § 552b(f)(1). The subject agencies are required to promulgate regulations to implement the Sunshine Act's requirements. § 552b(g).

The Nuclear Regulatory Commission ("NRC" or "Commission") appoints Atomic Safety and Licensing Boards ("ASLB") to conduct public hearings and to make intermediate or final decisions in administrative proceedings relating to granting, suspending, revoking or amending licenses issued by the NRC. 10 C.F.R. Part 2, App. A. Each ASLB consists of "one member who is qualified in the conduct of administrative proceedings and two members who have such technical or other qualifications as the Commission deems appropriate to the issues to be decided." Id. The NRC regulations implementing the Sunshine Act define "Commission" as "the collegial body of five Commissioners or a quorum thereof as provided by § 201 of the Energy Reorganization Act of 1974, or any subdivision of that collegial body authorized to act on its behalf, and shall not mean any body not composed of members of that collegial body." 10 C.F.R. § 9.101(a). The regulations further define "meeting" as "the deliberations of at least a quorum of Commissioners where such deliberations determine or result in the joint conduct or disposition of official Commission business . . . ." 10 C.F.R. § 9.101(c). When the NRC proposed the regulations implementing the Sunshine Act, it specifically noted,

"the definition of Commission is taken from the definition of 'agency' in the Act, 5 U.S.C. 552b(a)(1). Subdivisions of the Commission not composed of Commission members such as the Atomic Safety and Licensing Board, or the Advisory Committee on Reactor Safety, are specifically excluded from the definition."

Rules Governing Public Attendance, 41 Fed. Reg. 55,881 (1976) (to be codified at 10 C.F.R. Part 9).

During 1983, the ASLB held evidentiary hearings concerning whether an operating license should be granted to the Byron Nuclear Plant, located in northern Illinois. On or about May 23, 1983, the ASLB announced that the hearing scheduled for May 26, 1983, in Rockford, Illinois would be closed to the public. The plaintiffs filed a complaint for injunctive relief in the district court alleging that the ASLB's announcement of the closed meeting would be violative of the Sunshine Act's open meeting requirement or, in the alternative, violated the Act's requirement that agencies subject to the Act give sufficient notice of their intent to close hearings.*fn1 Before the preliminary injunction motion to prevent closure of the May 26th hearing was heard, the ASLB's attorney informed the court that the meeting would be open to the public. However, the attorney insisted that the ASLB had the authority to close its evidentiary hearing and that the decision to close an evidentiary hearing could be made at the hearing itself.

On July 26, 1983, the ASLB issued an order stating that the "hearing [to be held on August 9, 1983] may be in camera." The plaintiffs filed another motion for preliminary injunction and the ASLB indicated to the court that it no longer intended to hear any evidence in camera that would be part of the record but did intend to examine in camera certain proposed testimony in order to make a preliminary ruling as to its competency and admissibility. The district court "generally continued" the plaintiffs' motion for a preliminary injunction and on August 9 and 10, 1983, the ASLB held in camera, ex parte meetings with the NRC staff and Office of Investigation to review information they had gathered regarding pending investigations and inspections at the Byron Plant. The ASLB, apparently concerned that premature public disclosure of the incomplete investigations and inspections might give rise to unwarranted concern in the surrounding community, held the meetings with the staff to determine whether or not an evidentiary presentation regarding pending inspections was appropriate and, if so, whether the presentation of the evidence should be open or closed to the public. After hearing the staff's information, the ASLB decided not to hold an evidentiary hearing. Because the staff's information was presented only at the in camera, ex parte meetings, it was not a part of the official record and could not be considered by the ASLB in making its ultimate licensing decision. 10 C.F.R. Part 2, App. A, V(e)(2).

On August 16, 1983, the plaintiffs filed an amended complaint for declaratory and injunctive relief. Noting that the ASLB had "publicly and in open court taken the position that the licensing hearings [regarding the Byron Nuclear Plant] can be closed to the public, sua sponte, at anytime and upon a minute's notice," the plaintiffs complained that "the question whether defendants have the right they assert to close licensing hearing . . . may escape judicial review unless a declaratory judgment determining that question is issued by this court." In addition to asking the court to declare that "the defendants may not lawfully close licensing hearings except in full compliance with the Sunshine Act and other provisions of the law for public hearings," the ...


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