 United States Court of Appeals
         FOR THE DISTRICT OF COLUMBIA CIRCUIT



                    Filed August 3, 2012

                        No. 11-1271

               IN RE: AIKEN COUNTY, ET AL.,
                        PETITIONERS


             On Petition for Writ of Mandamus


   Before: GARLAND and KAVANAUGH, Circuit Judges, and
RANDOLPH, Senior Circuit Judge.

                        ORDER

     It is ORDERED that the case be held in abeyance and
that the parties file, by no later than December 14, 2012,
updates on the status of Fiscal Year 2013 appropriations with
respect to the issues presented.

                                       FOR THE COURT:
                                       Mark J. Langer, Clerk
                          BY: /s/
                                       Jennifer M. Clark
                                       Deputy Clerk

* A statement by Circuit Judge KAVANAUGH, concurring, is
attached.

* A statement by Senior Circuit Judge RANDOLPH, dissenting,
is attached.
     KAVANAUGH, Circuit Judge, concurring: Petitioners seek
mandamus. They ask us to order the Nuclear Regulatory
Commission to comply with the statutory mandate requiring
the Commission to act on the Department of Energy’s long-
pending license application to store nuclear waste at Yucca
Mountain. The Commission resists on the ground that it does
not have sufficient appropriated funds to complete action on
the license application (even though it has appropriated funds
available to at least start). In these unusual circumstances, I
support the Court’s decision to hold the case temporarily in
abeyance. Under our precedents, mandamus is an equitable
remedy that takes account of practical considerations such as
timing, resources, and efficacy, among other things. The
parties’ submissions reveal that granting mandamus now
would entail significant expenditures of government
resources. But Congress’s upcoming appropriations decisions
could well affect whether those expenditures are necessary.
Indeed, this case may soon be mooted by Congress’s actions
in enacting Fiscal Year 2013 appropriations. For example,
Congress may decide to appropriate additional money to the
Nuclear Regulatory Commission for the Yucca Mountain
licensing process, in which case the Commission’s arguments
against mandamus would clearly be unavailing.
Alternatively, Congress may enact statutory text that makes
clear that the Nuclear Regulatory Commission may not use
any appropriated money (including previously appropriated
funds) for the Yucca Mountain licensing process, in which
case petitioners’ arguments for mandamus would clearly be
unavailing.

     Of course, it is possible that Congress will take neither of
those steps and add no clarity to the current dispute. In that
circumstance, I believe mandamus likely would have to be
granted. An executive or independent agency generally has
no authority to disregard a statute that mandates or prohibits
specific agency actions, at least so long as there is some
                                   2
appropriated funding available. 1 Here, the law mandates that
the Nuclear Regulatory Commission act on the license


     1
        That principle has exceptions rooted in the Constitution, but
no such exception applies here.
      For example, the Executive generally may decline to follow a
statutory mandate or prohibition if the President concludes the
statute is unconstitutional, unless a final Court decision in a
justiciable case rejects the constitutional objection. (In the event of
such a Court decision, the Court’s word controls, and the Executive
generally must adhere to the statute.            See, e.g., Nixon v.
Administrator of General Services, 433 U.S. 425 (1977).) In this
case, the Executive has interposed no such constitutional objection.
      Nor does this case involve a statute that impermissibly
purports to override the Executive’s traditional prosecutorial
discretion. Under Article II of the Constitution, the President and
executive and independent agencies possess significant
prosecutorial discretion not to enforce a statute against private
individuals – that is, prosecutorial discretion not to bring criminal
or civil charges and seek sanctions or penalties against private
individuals for violations of a statute. See, e.g., Heckler v. Chaney,
470 U.S. 821, 831-32 (1985); United States v. Nixon, 418 U.S. 683,
693 (1974); Seven-Sky v. Holder, 661 F.3d 1, 50 & n.43
(Kavanaugh, J., dissenting). That prosecutorial discretion is at its
zenith when the President independently concludes that the statute
is unconstitutional. Congress generally may not intrude upon that
exclusive Article II power – that is, a statute generally may not
require the Executive to bring charges or seek sanctions or
penalties against private individuals for violations of a statute. See
United States v. Nixon, 418 U.S. at 693 (“the Executive Branch has
exclusive authority and absolute discretion to decide whether to
prosecute a case”). That division of authority is a bedrock element
of the Constitution’s separation of powers that helps preserve
individual liberty. See U.S. CONST. art. II, § 1, cl. 1 (executive
power); U.S. CONST. art. II, § 2, cl. 1 (pardon power); U.S. CONST.
art. II, § 3 (Take Care Clause); see also U.S. CONST. art. I, § 9, cl. 3
(Bill of Attainder Clause). This case, however, does not involve an
                               3
application, and the agency still has a significant amount of
appropriated money available to at least begin that task. In
those circumstances, an agency appears to have no legal
authority to defy the law in the manner suggested by the
Nuclear Regulatory Commission in this case.

    In short, in the upcoming appropriations laws, Congress
may make clear its intent on this matter. In applying the
appropriate equitable considerations our cases set forth for
mandamus cases, out of appropriate respect for the coordinate
branches of Government, and so as to not unnecessarily waste
government resources, it behooves us to wait for Congress. If
Congress provides no additional clarity on the matter,
however, we will be compelled to act on the petition for
mandamus.




exercise of prosecutorial discretion, and the Nuclear Regulatory
Commission has not claimed otherwise.
     RANDOLPH, Senior Circuit Judge, dissenting: Congress has
its responsibilities. We in the Judiciary have ours. Whether
mandamus should issue when an agency is wilfully defying an
earlier Congress’s command has never depended on the
possibility that a later Congress might do something to excuse
the violation.

     Here, the Nuclear Regulatory Commission has disregarded
a clear statutory mandate, citing a lack of funding, when in fact
it has sufficient funds to move forward. There is no reason to
delay issuing a writ of mandamus to correct this transparent
violation of the law.

     The Nuclear Waste Policy Act states that the Commission
“shall consider” the Yucca Mountain license application and
“shall issue a final decision approving or disapproving” the
application “not later than” three years after its submission. 42
U.S.C. § 10134(d). The Department of Energy filed the Yucca
Mountain application in June 2008, see Yucca Mountain; Notice
of Receipt and Availability of Application, 73 Fed. Reg. 34,348
(June 17, 2008), and Congress later provided substantial
appropriations for the licensing process, see U.S. NUCLEAR
R EGULATORY C OMMISSION , NUREG-1100, V OL . 26,
CONGRESSIONAL BUDGET JUSTIFICATION FOR FY 2011 94-95
(2010).1 Although the Commission had a duty to act on the
application and the means to fulfill that duty, former Chairman
Gregory Jaczko orchestrated a systematic campaign of
noncompliance. Jaczko unilaterally ordered Commission staff
to terminate the review process in October 2010; instructed staff
to remove key findings from reports evaluating the Yucca
Mountain site; and ignored the will of his fellow
Commissioners. See U.S. NUCLEAR REGULATORY COMMISSION,
OFFICE OF THE INSPECTOR GENERAL, OIG CASE NO. 11-05, NRC
CHAIRMAN’S UNILATERAL DECISION TO TERMINATE NRC’S

       1
       At least $10.4 million of these funds remain available. See
NRC Supp. Br. 4.
                                2

REVIEW OF DOE YUCCA MOUNTAIN REPOSITORY LICENSE
APPLICATION 7-10, 17, 44-46 (2011). These transgressions
prompted an investigation by the Commission’s Inspector
General, as well as a letter from all four of the Commission’s
other members expressing “grave concerns” about Jaczko’s
performance in office. See Matthew Daly, Nuclear Agency’s
Commissioners and Chief Trade War of Words, WASH. POST,
Dec. 10, 2011, at A18. After we heard oral argument in this
case, Jaczko resigned.

      We should ensure that the Commission’s next chapter
begins with adherence to the law. Today’s order is premised on
speculation about what Congress might do at some unknown
(and perhaps quite distant) point in the future. See Concurring
Op. at 1. For instance, Congress might moot the Commission’s
lack of funding argument by appropriating additional sums. Or
it might repeal the Commission’s statutory duty by prohibiting
further action on the Yucca Mountain application. Or it might
do nothing at all. Whatever might happen in the future, the fact
remains that Congress has already spoken. We should not wait
for further instructions. Congress enacted the Nuclear Waste
Policy Act, which requires the Commission to rule on the Yucca
Mountain application, and it appropriated funds for that purpose.
Our duty is to enforce these statutes, plain and simple. “Once
Congress . . . has decided the order of priorities in a given area,
it is for the Executive to administer the laws and for the courts
to enforce them when enforcement is sought.” TVA v. Hill, 437
U.S. 153, 194 (1978). Holding the case in abeyance indefinitely,
based on the mere possibility of future legislative action, shirks
this basic obligation and perpetuates the Commission’s unlawful
delay. For these reasons, I respectfully dissent.
