Natural Resources Defense Council v. Defense Nuclear Facilities Safety Board

No. 91-1199 (D.C. Cir. October 9, 1992)

The court denies a suggestion for rehearing en banc of its prior decision in Natural Resources Defense Council v. Defense Nuclear Facilities Safety Board, 22 ELR 21381, which held that the Board's regulation allowing it to close meetings, or portions of meetings, concerning its recommendations relating to public health and safety does not violate the Government in the Sunshine Act. Judges Williams and Wald concur in the denial of rehearing en banc, but continue to believe that the panel reached the wrong decision. Judge Williams declines to classify the dispute as one of exceptional importance warranting en banc treatment, and Judge Wald believes that an en banc hearing would be futile.

Counsel are listed at 22 ELR 21381.

Before: MIKVA, Chief Judge; WALD, EDWARDS, RUTH B. GINSBURG, SILBERMAN, BUCKLEY, WILLIAMS, D.H. GINSBURG, SENTELLE, HENDERSON and RANDOLPH, Circuit Judges.

[22 ELR 21496]

ORDER

Petitioner's Suggestion for Rehearing En Banc has been circulated to the full Court. No member of the Court requested the taking of a vote thereon. Upon consideration of the foregoing it is

ORDERED, by the Court en banc, that the suggestion is denied.

Per Curiam

FOR THE COURT:

RON GARVIN, CLERK

A statement of Circuit Judge Williams concurring in the denial of rehearing en banc is attached.

A statement of Circuit Judge Wald is also attached.

WILLIAMS, Circuit Judge, concurring in the denial of rehearing en banc. For the reasons stated in my dissent, I continue to believe the panel decision is quite wrong. But it is hard to classify the dispute as one of "exceptional importance" or where en banc treatment is truly "necessary" to maintain uniformity of circuit law. See Rule 35(a), Federal Rules of Appellate Procedure. The opinion claims adherence to United States Dep't of Justice v. Julian, 486 U.S. 1 (1988), which appears to preclude finding a "require[ment]" of non-disclosure simply by application of the expressio unius maxim to a mandate of disclosure; the panel does not suggest that later cases have undermined Julian. Thus the decision is evidently driven by some idiosyncratic feature of 42 U.S.C. § 2286d(a) (1988), admittedly still undetectable by me, rather than by a view that specific mandates of disclosure generally support an inference that related disclosures are forbidden. Believing the case will cast no shadow over circuit law on Exemption 3, I have not called for a vote on rehearing en banc.

WALD, Circuit Judge: I agree with Judge Williams on the merits of the issue. I am less sanguine about its "nonexceptional" nature; I can only hope his prediction of its "shadowless" character proves correct. I do not call for an en banc rehearing because I believe it would be futile to do so.