UNITED STATES COURT OF APPEALS FOR THE D.C. CIRCUIT


NATL WHISTLEBLOWER

v.

NRC


99-1002b

D.C. Cir. 1999


*	*	*


O R D E R


It is ORDERED, by the Court, on its own motion, that the  majority
opinion and the judgment filed herein on November  12, 1999, be, and
the same hereby are, vacated.


A future order will schedule further briefing and rehearing  after a
member of the Court is randomly selected to replace  former Circuit
Judge Wald as the third member of the panel.


Per Curiam


FOR THE COURT:


Mark J. Langer, Clerk


BY:


Robert A. Bonner


Deputy Clerk


A concurring statement of Chief Judge Edwards is at- tached.


Edwards, Chief Judge, concurring: I concur in the Order  vacating the
opinion and judgment issued on November 12,  1999, because, in
retrospect, I fear that the original (now  vacated) majority opinion
fails to address some critical issues  in this case. These issues were
not the focus of the argu- ments during the first hearing before the
court, so it is  unsurprising that they were lost in our haste to
issue an  opinion before our colleague, Judge Wald, departed from the 
court. However, in my view, the issues are too important to  ignore
once uncovered; thus, I feel that this case must be  reheard.


The now vacated majority opinion is founded on the view  that
petitioners were prejudiced by the Commission's abroga- tion of a
substantive rule. After considering this matter  further, I find that
there is good reason to believe that we  were mistaken in assuming
that the Commission acted pursu- ant to a substantive, as opposed to a
procedural, rule.


On August 5, 1998, the Commission published a statement  of Policy on
Conduct of Adjudicatory Proceedings ("Policy")  in which it stated
that licensing boards should grant exten- sions of time "only when
warranted by unavoidable and  extreme circumstances." 63 Fed. Reg.
41,872, 41,874 (Aug. 5,  1998). The Commission subsequently invoked
this new rule  in an order referring a petition filed by the National
Whistle- blower Center ("Center") to the Atomic Safety and Licensing 
Board, stating that extensions of time should only be granted  if the
petitioner can demonstrate "unavoidable and extreme  circumstances."
Order Referring Petition for Intervention  and Request for Hearing to
Atomic Safety and Licensing  Board Panel, CLI 98-14, reprinted in
Joint Appendix ("J.A.")  23, 28 (Aug. 19, 1998).


There can be no doubt that the Commission's August 5,  1998, Policy
adopted a new standard to govern requests for  extensions of time in
proceedings of the sort here at issue. It  also seems clear that the
new standard was intended to  modify the standards previously
enunciated in 10 C.F.R.  s 2.711(a) and s 2.714(b)(1). And it is
undisputed that the  Center had notice of the new standard for
granting exten- sions of time. The Center additionally understood the
thrust  of the Policy, for they objected to the new standard on the 


ground that it was contrary to the "good cause" standard  contained in
10 C.F.R. s 2.711(a). See Memorandum and  Order, CLI 98-15 (Aug. 26,
1998) reprinted in J.A. 60 (char- acterizing the Center's objections
to the new standard as  articulated in the Commission's Aug. 19, 1998
referral order).


Given that the Commission adopted a new standard to be  applied in
cases of this sort and that the Center had notice of  the new standard
before the advent of the procedures here in  dispute, it matters a
great deal whether the standard is  viewed as a new "substantive" or
"procedural" rule. If, as  appears to be the case, the new standard is
a procedural rule,  then it is exempt from the requirements of notice
and com- ment under the Administrative Procedure Act, 5 U.S.C.  s
553(b)(A). See JEM Broad. Co. v. FEC, 22 F.3d 320 (D.C.  Cir. 1994).


It is no answer to say that the Commission was wrong to  construe "good
cause" as "unavoidable and extreme circum- stances." If this is a
procedural rule, and if it does not  transcend the bounds of due
process or violate some clear  statutory mandate, then the Commission
is entitled to define  "good cause" as it sees fit. See Vermont Yankee
Nuclear  Power Corp. v. NRDC, 435 U.S. 519 (1978). Given that 
latitude, it would be an oxymoron to say that "unavoidable  and
extreme circumstances" is outside the realm of accept- able
understandings of "good cause."


These issues were not properly aired during the first round  of briefs
and arguments before this court. We would be  remiss, I think, to
issue the mandate in this case without  considering the questions that
are now apparent. I do not  believe that the Commission has waived the
right to argue  the procedural/substantive issue, because the agency
could  not have reasonably anticipated the position reached in the 
first majority opinion. In short, the case must be reheard,  with a
proper focus on the issues at hand.