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State v. United States

United States Court of Appeals, Fifth Circuit

June 1, 2018

STATE OF TEXAS, Petitioner

         Petition for a Writ of Mandamus to the Nuclear Regulatory Commission

          Before HIGGINBOTHAM, HAYNES, and GRAVES, Circuit Judges.


         This is the latest of many disputes arising out of the government's struggle with nuclear waste disposal under the Nuclear Waste Policy Act of 1982 (the "Waste Act"), [1] a congressional effort to "establish a schedule for the siting, construction, and operation of repositories."[2] The state of Texas petitions for declaratory and injunctive relief, and the state of Nevada moves to dismiss. We will grant the motion to dismiss.


         Under the statutory framework of the Waste Act, new repositories were to provide centralized housing for spent nuclear fuel and high-level radioactive waste ("waste") produced by reactors scattered throughout the states. The Waste Act initially envisioned a system in which the Department of Energy would identify a handful of suitable repository sites from which it would recommend three to the president by January 1, 1985.[3] Although the Department of Energy eventually settled on the Yucca Mountain, Nevada, site and two others, Congress amended the Waste Act in 1987 to designate Yucca Mountain the sole candidate for a repository, [4] directing the Department of Energy to accept the waste from the states by January 31, 1998.[5] Yet by the mid-1990s, the Department of Energy made clear that it could not meet the 1998 deadline, and it came and went without the federal government accepting any waste.

         As directed, the Department of Energy focused on the Yucca Mountain site, conducting a series of preliminary tasks and assessments before in 2002 formally recommending the building of a repository there.[6] Congress approved, with another deadline: the Department of Energy had ninety days to submit an application for construction authorization to the Nuclear Regulatory Commission.[7] The Department of Energy did not submit this required application until 2008.[8] And when it did so, its submission triggered yet another deadline, requiring the Nuclear Regulatory Commission to complete application review by 2012.[9]

         This deadline, too, would go unmet, as just a couple of years later, the Department of Energy hesitated. In 2010, while the tribunal branch of the Nuclear Regulatory Commission, known as the Atomic Safety and Licensing Board (the "Licensing Board"), was reviewing the Yucca Mountain application, the Department of Energy attempted to withdraw the application, professing renewed doubt about the viability of the Yucca Mountain site. Both the Licensing Board and the Nuclear Regulatory Commission denied the request for withdrawal, [10] but then the Licensing Board decided to hold the licensing proceeding in abeyance due to a lack of funding.[11]

         Lawsuits followed. Various state and local government entities challenged the Department of Energy's attempt to withdraw the Yucca Mountain application, and in 2011, the D.C. Circuit, in its Aiken I decision, dismissed their complaint for lack of ripeness and finality.[12] In 2013, in response to the Licensing Board's decision to pause the licensing proceeding, the D.C. Circuit issued its Aiken II decision and granted a writ of mandamus to roughly the same group of entities, instructing the Nuclear Regulatory Commission to "promptly continue with the legally mandated licensing process."[13] The order requires the Nuclear Regulatory Commission to continue to spend its funds in line with the statutory requirement of the Waste Act "unless and until Congress authoritatively says otherwise or there are no appropriated funds remaining."[14]

         At the time of the Aiken II decision, the Nuclear Regulatory Commission had approximately $11 million in its coffers, a sum that it believed to be woefully inadequate to complete the entire licensing process.[15] So, in the wake of the decision, the Nuclear Regulatory Commission solicited the opinions of parties to the adjudicatory proceedings on how best to triage its remaining funds.[16] The path forward, the Nuclear Regulatory Commission decided, consisted mainly of completing a Safety Evaluation Report, a required step in the licensing process.[17] As it has sailed on that tack, the $11 million has withered into less than $700, 000 in unobligated funds.

         Meanwhile, in 2010, while the Nuclear Regulatory Commission was undertaking the licensing process, then-President Obama established a Blue Ribbon Commission to explore an alternative system of "consent-based siting" for waste storage. The Commission concluded that consent-based siting, not the Yucca Mountain repository, represented the most promising path forward, publishing a strategy document to that effect in 2013 and inviting public comment on the subject in 2015. More recently, in 2017, the Department of Energy published a draft report "lauding the consent-based siting process, " and initiated another related public comment period that expired in April 2017. Nothing came of its actions, and the Department of Energy now advises that the Trump Administration "does not intend to take further policy action on the consent-based siting activities in question."

         While Texas was not involved, it had its wary eyes on these proceedings, and on March 14, 2017, petitioned this Court for relief, naming various federal entities as defendants, including the Department of Energy, Nuclear Regulatory Commission, Licensing Board, Department of Treasury, and various federal officials associated with these agencies (collectively, the "federal respondents"). Relying on 42 U.S.C. § 10139(a)(1), Texas argues that the federal respondents violated their obligations under the Waste Act in their pursuit of consent-based siting, failure to complete the Yucca Mountain licensing process by 2012, and failure to accept the waste by 1998.

         Seeking several different remedies, Texas characterizes "[t]he thrust" of its petition as a request for "equitable relief prohibiting [the Department of Energy] from conducting any other consent-based siting activity and ordering Respondents to finish the Yucca licensure proceedings, " supported by ancillary remedies, such as civil contempt and appointment of a special master. After Texas filed its petition, the Nuclear Energy Institute alongside various nuclear utilities companies (collectively, the "NEI") and the state of Nevada intervened, all of which oppose Texas's petition on jurisdictional and substantive grounds.

         After filing its petition, Texas moved for declaratory and injunctive relief; Nevada responded with its own motion to dismiss, which the federal respondents and the NEI supported in substance.


         As is plain, Texas flies here on creatively fashioned jurisdictional wings. In the ordinary course, civil actions-including petitions for mandamus, one of the remedies Texas seeks-must first be filed in federal district court, our court of first instance.[18]

         Texas brings its petition under 42 U.S.C. § 10139(a)(1), which states in part:

(a) Jurisdiction of United States courts of appeals
(1) Except for review in the Supreme Court of the United States, the United States courts of appeals shall have original and exclusive jurisdiction over any civil action-
(A)for review of any final decision or action of the Secretary, the President, or the Commission under this part;
(B)alleging the failure of the Secretary, the President, or the Commission to make any decision, or take any action, required under this part; . . . .[19]

         Texas asserts that we have this "original and exclusive jurisdiction, " a plausible argument if the statute ended there. It does not. It also includes a timeliness requirement: "A civil action for judicial review described under subsection (a)(1) of this section may be brought not later than the 180th day after the date of the decision or action or failure to act involved . . . ."[20]

         And of course, the actions and omissions that Texas challenges came and went years ago.[21] The only discrete actions that Texas points to that occurred within 180 days of its petition are the Department of Energy's decision to release a consent-based siting document and to solicit public comments on that document.

         Sensitive to this hurdle, Texas points us to the continuing violations doctrine. However, before determining whether the continuing violations doctrine should apply to Texas's claims, we must first confront a preliminary question: whether the Waste Act's 180-day deadline imposes a limit on our subject matter jurisdiction. If it does, we must dismiss without reaching the applicability of the continuing violations doctrine.[22]


         In recent years, the Supreme Court has increasingly turned its attention toward distinguishing statutory requirements implicating the subject matter jurisdiction of federal courts from ones that only function as "claim-processing" rules.[23] The former-so-called jurisdictional limitations-are "strong medicine for litigants, attorneys, and judges alike, "[24] for with a want of subject matter jurisdiction, the court is "deprive[d] . . . of all authority to hear a case"[25]: it must dismiss the case irrespective of equitable considerations, and it must do so even when timeliness arguments have been waived.[26] On the other hand, the latter-claim-processing rules-simply "promote the orderly process of litigation by requiring that the parties take certain procedural steps at certain specified times."[27] As they do not stake out limits on a federal court's subject matter jurisdiction, their application may be tempered by considerations such as equity and waiver.[28]

         Given the bite of jurisdictional rules, and their elusive and protean character, "Congress must do something special" to mark a procedural requirement as jurisdictional.[29] This has come to resemble a clear statement rule: Congress need not "incant magic words, " but "traditional tools of statutory construction must plainly show that Congress imbued a procedural bar with jurisdictional consequences."[30] The clear statement requirement here disciplines the dialogue with Congress, akin to the rule deployed in resolving claims of congressional abrogation of states' Eleventh Amendment immunity;[31]it is also reminiscent of the Court's demand for clarity that has ebbed and flowed with enforcement of congressionally created norms by judge-made private rights of action not provided by Congress.[32] The common thread is the exercise of weighty power belonging only to Congress.[33] And because it is weighty, we require that Congress speak clearly when it chooses to wield such power, mindful of the congressional authority's potential impact upon important constitutional values.

         Against this backdrop, we ask whether "traditional tools of statutory construction" demonstrate with sufficient clarity that the Waste Act's 180-day deadline is jurisdictional. As Nevada reminds us, 42 U.S.C. § 10139 does clearly speak of jurisdiction. It does so in subsection (a), the provision outlining the subject matter bases for civil actions that it entrusts to courts of appeals' "original and exclusive jurisdiction."[34] Well enough, but the 180-day deadline is located in a different subsection, mundanely labeled "[d]eadline for commencing action."[35] While the fact that 42 U.S.C. § 10139 does speak in jurisdictional terms in one provision could plausibly support an inference that the deadline, too, is meant to serve jurisdictional purposes, the Court "has often explained that Congress's separation of a filing deadline from a jurisdictional grant indicates that the time bar is not jurisdictional."[36] And that is the situation in the Waste Act: 42 U.S.C. § 10139(c), the filing deadline, is separated from 42 U.S.C. § 10139(a)(1), the jurisdictional grant.

         The Waste Act's deadline provision does cross-reference the jurisdictional grant.[37] But the jurisdictional grant is not explicitly "condition[ed] . . . on the limitations period[]."[38] And while the deadline is framed in mandatory terms, the Court has held that this is simply not enough to mark out a procedural rule as jurisdictional.[39] Finally, we are aware of nothing in the legislative history of the Waste Act that suggests that the limitation is jurisdictional.[40] In the face of these facts, we are persuaded that Congress has not sufficiently clearly indicated that the deadline imposed by 42 U.S.C. § 10139(c) is jurisdictional.

         It is true that several courts in the past have generically described "section 119" of the Waste Act, or 42 U.S.C. § 10139, as jurisdictional.[41] But these courts have never held that the deadline provision is jurisdictional. The D.C. Circuit's description of the 42 U.S.C. § 10139 as jurisdictional came during its examination of the scope of 42 U.S.C. § 10139(a)(1)-the provision that, again, expressly speaks of courts of appeals' "original and exclusive jurisdiction."[42] And the Federal Circuit-despite once describing "section 119" as jurisdictional-has since reserved judgment on whether the deadline provision limits courts' subject matter jurisdiction.[43] Neither court has answered the question of whether the deadline listed in 42 U.S.C. § 10139(c) imposes a limit on our subject matter jurisdiction or operates as a more workaday claim-processing rule.[44] These decisions also preceded the Supreme Court's most recent guidance on the topic-and the Supreme Court "has [since] been on a mission to rein in profligate uses of 'jurisdiction, '"[45] in order to bring discipline to our dialogue with Congress, the ultimate repository of power here.

         Because we conclude that the deadline in 42 U.S.C. § 10139(c) is not jurisdictional, we proceed to consider whether the continuing violations doctrine may apply to Texas's claims.


         The continuing violations doctrine embodies a "muddled, " difficult body of law that has long bedeviled courts and commentators alike.[46] The doctrine takes two different forms that may plausibly render Texas's claims under the Waste Act timely. First, the doctrine has been used as a tolling mechanism that forestalls the running of a statute of limitation in the appropriate circumstances. This reflects the way in which the vast majority of the cases in this Circuit have understood the doctrine.[47] However, courts have also used the continuing violations doctrine as an apparent shorthand for an exercise in statutory interpretation; in this incarnation, the continuing violations doctrine applies when a court determines that a statute or regulation is most naturally read as treating injuries as ongoing or continually accruing.[48] Applying either of these versions of the continuing violations doctrine, we conclude that most of Texas's claims are untimely.


         In its form most commonly deployed in our Circuit, "[t]he continuing violations doctrine is equitable in nature and extends the limitations period on otherwise time[-]barred claims."[49] We have dealt with this version most frequently in the employment discrimination context, though we have recognized its potential applicability in other areas of law as well.[50] The Supreme Court has stressed that the equitable version of the doctrine should be invoked "sparingly, " only when the situation calls for it.[51] We have heeded this instruction: as we have repeatedly held, "[g]enerally, in determining if equitable tolling is appropriate, we focus the inquiry 'on what event, in fairness and logic, should have alerted the average lay person to act to protect his rights.'"[52]

         This test aligns strikingly well with the sole exception that Congress drafted directly into the Waste Act's deadline provision, which provides that a party may avoid the strictures of the 180-day deadline if it can show that it was subjectively unaware of the complained-of actions and that its lack of knowledge was objectively reasonable in the circumstances.[53] But under the Waste Act's exception, this justifiable ignorance only earns the party an extra 180 days from when it does finally learn of the government's actions.[54] The fact that ...

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