IN THE UNITED STATES COURT OF APPEALS FOR THE DISTRICT OF COLUMBIA CIRCUIT

Transcription

1 USCA Case # Document # Filed: 02/14/2013 Page 1 of 7 IN THE UNITED STATES COURT OF APPEALS FOR THE DISTRICT OF COLUMBIA CIRCUIT NATIONAL ASSOCIATION OF REGULATORY ) UTILITY COMMISSIONERS, ) ) Petitioner, ) ) No v. ) (consolidated with ) No ) UNITED STATES DEPARTMENT OF ENERGY, ) ) Respondent. ) RESPONDENT S RESPONSE TO PETITIONERS MOTION TO REOPEN Respondent, the Department of Energy, respectfully responds to the petitioners January 31, 2013 motion to reopen this case and review the Secretary of Energy s new fee adequacy assessment. In their motion, petitioners request, inter alia, that the Court reopen this case and review the Secretary of Energy s January 16, 2013 Determination of the Adequacy of the Nuclear Waste Fund Fee and the U.S. Department of Energy Nuclear Waste Fund Fee Adequacy Assessment Report (2013 Fee Adequacy Assessment). While the Department of Energy (Department) is confident that the 2013 Fee Adequacy Assessment complies with the Nuclear Waste Policy Act (NWPA) and this Court s June 1, 2012 decision, it has no objection to petitioners

2 USCA Case # Document # Filed: 02/14/2013 Page 2 of 7 request for judicial review. As described below, the Department believes that petitioners motion is most appropriately viewed as a new petition for review pursuant to the NWPA s judicial review provision, 42 U.S.C , and concurs in petitioners request that the Court establish a schedule for further briefing. 1 The Department respectfully requests, however, that such a schedule be reasonable and that it begin with the submission of a certified index to the administrative record for the 2013 determination. DISCUSSION In its June 1, 2012 decision, the Court determined that the Secretary s 2010 fee adequacy assessment was legally inadequate, remanded the matter to the agency, and ordered the Secretary to respond to the remand within six months of the issuance of the mandate, during which time th[e] panel will retain jurisdiction. National Ass n of Regulatory Utility Commn rs v. Department of Energy, 680 F.3d 819, 826 (D.C. Cir. 2012) (the NARUC Order). Pursuant to the NARUC Order, on January 18, 2013, the Department notified the Court that it had 1 Petitioners recognize that a motion to reopen may not be appropriate and request that, [s]hould the Court determine that a different mechanism should have been used, such as filing a new petition for review... this Motion be treated as such. Pets. Motion to Reopen at n.1. 2

3 USCA Case # Document # Filed: 02/14/2013 Page 3 of 7 completed a new fee adequacy assessment and attached a copy of that report for the Court s convenience. The 2013 Fee Adequacy Assessment constitutes the type of final decision or action that petitioners normally would need to challenge in a petition for review submitted within 180 days of the decision under the judicial review provision of the NWPA. See 42 U.S.C The Department recognizes that, in the NARUC Order, the Court expressed concern about a Departmental disposition to delay and, [i]n light of that concern retained jurisdiction over petitioners challenge to the 2010 determination, ordered the Secretary to respond to the remand within six months. NARUC, 680 F.3d at 826. Ordinarily, remand of more than the record would divest the Court of jurisdiction under Circuit Rule 41(b) and section XIII.3 of this Court s Handbook of Practice and Internal Procedures. While the Court here retained jurisdiction to ensure a response to the NARUC Order within six months after issuance of the mandate, the Department respectfully submits that it has now complied with the NARUC Order by responding to the remand within the prescribed period. Petitioners ask the Court to reopen the case and set a schedule for... expedited review. Pets. Motion to Reopen at 4. Their motion, however, 3

4 USCA Case # Document # Filed: 02/14/2013 Page 4 of 7 neglects to give a reason why review of the new determination in other than the ordinary course is necessary. In this circumstance, the Department believes it most appropriate to apply the judicial review provision of 42 U.S.C , treating petitioners motion as a timely petition for review of the 2013 Fee Adequacy Assessment. Nevertheless, if the Court determines that the proper vehicle for this challenge to the 2013 Fee Adequacy Assessment is to reopen petitioners prior challenge to the 2010 assessment, the Department respectfully requests that the Court establish a briefing schedule that begins with the filing of a certified index to the administrative record, as described below. While petitioners motion is captioned a Motion to Reopen, it purports to request broader relief 2 and makes several characterizations of the 2013 Fee Adequacy Assessment and its legal sufficiency 3 with which the Department does not agree. The Department respectfully requests that the motion be treated only as a new petition for review, or in the alternative a motion to reopen, and that the parties be afforded sufficient opportunity to brief these merits- and relief-related 2 See Pets. Motion to Reopen at 1 ( Petitioners respectfully move the Court to [1] reopen this consolidated case to review and [2] reject Respondent[ s] compliance with the Court s remand, and [3] to direct the Secretary of Energy... to suspend further collection of the Nuclear Waste Fund fee. ) 3 See id. at

5 USCA Case # Document # Filed: 02/14/2013 Page 5 of 7 issues in full. To that end, and to ensure adequate consideration of these issues, the Department respectfully requests that any schedule issued by the Court begin, prior to briefing, with the filing of the certified index to the administrative record of the 2013 Fee Adequacy Assessment. Although an administrative record was filed in support of the petitioners challenge to the Secretary s 2010 fee determination, any review of the 2013 Fee Adequacy Assessment will require reference to the record created during the development of that new determination. Accordingly, any schedule for further proceedings should allow appropriate time for the compilation of the record and the submission of the certified index thereto, followed by an opportunity for petitioners to review the record and prepare their initial brief and then for respondent to prepare its brief. CONCLUSION For the foregoing reasons, the Department does not object to the treatment of petitioners motion as a new petition for review pursuant to 42 U.S.C or to the request that the Court set a briefing schedule for the resolution of petitioners challenge to the 2013 Fee Adequacy Assessment. Respectfully submitted, STUART F. DELERY Principal Deputy Assistant Attorney General 5

6 USCA Case # Document # Filed: 02/14/2013 Page 6 of 7 /s/ Jeanne E. Davidson JEANNE E. DAVIDSON Director /s/ Harold D. Lester, Jr. OF COUNSEL: HAROLD D. LESTER, JR. Assistant Director JANE K. TAYLOR Commercial Litigation Branch Office of General Counsel Civil Division U.S. Department of Energy Department of Justice 1000 Independence Avenue, S.W. P.O. Box 480, Ben Franklin Station Washington, D.C Washington, D.C Tele: (202) ALLISON KIDD-MILLER Fax: (202) Senior Trial Counsel Commercial Litigation Branch Civil Division U.S. Department of Justice P.O. Box 480, Ben Franklin Station Washington, D.C Dated: February 14, 2013 Attorneys for Respondent 6

7 USCA Case # Document # Filed: 02/14/2013 Page 7 of 7 CERTIFICATE OF SERVICE Pursuant to Fed. R. App. P. 25(c), D.C. Circuit Rule 25(c), and this Court s Administrative Order of May 15, 2009, I hereby certify that, on this 14th day of February, 2013, I caused the foregoing RESPONDENT S RESPONSE TO PETITIONERS MOTION TO REOPEN to be filed upon the Court through the use of the D.C. Circuit CM/ECF electronic filing system and, thus, also served counsel of record. /s/ Harold D. Lester, Jr. HAROLD D. LESTER, JR. Assistant Director Commercial Litigation Branch Civil Division U.S. Department of Justice P.O. Box 480, Ben Franklin Station Washington, D.C Tele: (202) Fax: (202)