*1 blood; Fisher. Of course live humans have This distinction between contents and handwriting. of course literate humans have apparently majority. duction is missed the propositions virtually These are true defi hypothetical Its first weapon of the murder interesting nition. But the data from blood theory claims that this “manna from heaven” handwriting samples type, DNA government —blood would allow the compel information, handwriting idiosyncrasies —are suspect verbally” by “to incriminate himself characteristically govern unknown to the revealing the location weapon. of murder admissibility ment in advance. The of these majority’s hypo, But in the weapon is government’s data stems not from the ad obviously poisoned testimony: the fruit of obvious, knowledge vance but from compulsion. revelation under A apt more (1) propositions: two the critical information suspect previous- instance would be if a had (DNA extracted from the witness and blood ly compulsion down the —without —written type, handwriting idiosyncrasies) is non-testi day planner, govern- location in his and the character, Fisher, monial see 425 U.S. at subpoenaed planner. produc- ment prosecutor’s day planner, production tion of the like the knowledge witness, link between the child, missing compulsory but non-testi- hand, on the one and the blood and the monial. The much more harmful contents other, handwriting, independent on the testimonial, obviously are but are not implicit the communications that are in the (so any compulsion the fruit of long unlawful giving Here, handwriting. witness’s blood or government’s independent as the use is similarly, the documents’ informational con subpoena).2 the context of the (the etc.) DNA, equivalent tent is non- only question On remand the should be character, Indepen testimonial and the Independent whether the complied Counsel dent Counsel is interested the documents’ with the limits set principle. above link to the witness insofar as it is shown Accordingly, I dissent on this issue. by the contents of the documents. Sensibly construed, production the act of
doctrine shields the witness from use of any (resulting subpoena information from his HARBOR GATEWAY response) beyond prosecutor what the COMMERCIAL receive if the PROPERTY OWNERS’ appeared documents in the ASSOCI- ATION, al., grand jury room or in his et office unsolicited unmarked, like manna from heaven. See 42; Alito, Amicus Br. at supra, DOJ at 59- UNITED STATES ENVIRONMENTAL prosecutor 60. The would in such a case not AGENCY, PROTECTION identify, verify be able to someone’s control Respondent over, or authenticate except the documents to the extent their own contents —or other No. 97-1737. sources —did so. He would thus make no Appeals, United States Court of use of aspect testimonial of the act of District of Columbia Circuit. Yet,
production. like DNA handwriting idiosyncrasies, the contents would themselves Argued Dec. 1998. unprotected, except to the extent Decided Feb. deciphering might depend on the context of subpoena conveyed by information —the suspect’s implicit matching of them with subpoena description. majority's him, hypothetical, Maj. 2. The weapon second see then that must of course be exclud- 584-585, Moreover, imprecise analysis, is too to bear hypothetical subpoena much ed. might posits government but if it that the being op- in fact relies well be invalid for "unreasonable or upon 17(c) implicit pressive,” the communication in the defen- Fed.R.Crim.P. defect unrelat- —a delivery weapon dant's of the murder to link it to ed to self-incrimination. *2 WALD,
Before: SILBERMAN and SENTELLE, Judges. Circuit Opinion by for the court filed Circuit Judge SENTELLE.
Dissenting opinion Judge filed Circuit WALD.
SENTELLE, Judge: Circuit challenge Petitioners the Environmental Agency’s Protection of the “Del Angeles, California, in Amo” site Los on the (“NPL”), arguing, National Priorities List alia, inter EPA’s 1996 list the Del Amo site because EPA was invalid violated the Omnibus Consolidated Rescis- by pro- sions and Act of 1996 posing a the site based on from California’s environmental rath- than a written er agree required we Act. Because petitioners that EPA did not obtain the gov- required written from the authorization ernor, proposal, we conclude that invalid, hence the and therefore petitioners’ arguments. reach do not other
I. Ange- “Del Amo” site is located Los
les, occupied by complex of and was rubber plants through 1940’s 1960’s. time, disposed During that residues were of end of pits located the southern deposited plant, and other wastes were evaporation adjacent ponds series argued M. Albert Cohen the cause pits ponds separated pits. The are petitioners. filed the briefs property the remainder 200-foot Semler, Attorney, H. Michael United right-of- Department of and Power Water Justice, Department argued States developer pur- way. a real estate respondent. cause With him on the brief land, chased the demolished the rubber Schiffer, Attorney was Lois J. Assistant Gen- plant, began constructing an industrial Hostetler, Attorney, eral. G. entered Eric complexes park and office on the land north appearance. an right-of-way. are current occupiers north of this land Semler, owners Attorney, and/or H. United Michael right-of-way, over two hundred acres of Justice, argued Department of States comprise park and now industrial of- respondent. cause for With him on the brief collectively Schiffer, complexes, known as Harbor Attorney fice Gen- Lois J. Assistant Hostetler, Gateway property does not Attorney, eral. entered Centers. Their Eric G. pit an area. appearance. include the Investigations possible upon environmental a written from the state envi- going hazards at the site have been on for ronmental Depart- some time. the California 25,1997, September On EPA listed the Del ment Toxic Substances Control learned of Fed.Reg. Amo Site on the NPL. 62 thereafter, pits ponds, and soon the EPA hydrogen defended its use of sulfide in *3 occupied by pits ponds area the and was site, scoring noting ranking the that the Superfund In listed on the state’s list. entirely consistent with the method described proposed Facility” EPA that the “Del Amo Ranking System. in the Hazard EPA de- List, placed on the National Priorities change clined to the site name from “Del present list of releases determines the EPA Pits,” noting Amo” to “Del Amo that it did greatest danger public to health or the envi- explicitly not have sufficient data to define Comprehensive ronment. See Environmen- the limits of the site at that time. EPA also Response, Compensation tal Liability acting defended its directly without a letter § § 42 Act 9605. EPA U.S.C. Governor, since did have a letter did not list the area based on initial this 1991 “on behalf of the Wilson administration” proposal. proposed change to from California’s environmental See Facility” the name of the “Del Amo to the Support Document the Revised National for accurately “Del Amo Pits” to more reflect September Priorities List Final Rule — site, Fed.Reg. 27,507, 27,511, the 58 but no challenge listing final taken. action was grounds several of the raised in the com- proposed to add the area to ments, including hydrogen EPA’s use of sul- the National Priorities List as the “Del Amo” site, scoring fide in use the name proposal specify site. The did not whether “Del Amo” rather than the more limited “Del the site pit pond would include the area Pits,” Amo and the failure to obtain a written only, or right-of-way areas north of the request from California’s before well, and listing process noted that “the itself proposing of the site. We find the is not intended to define or reflect the bound- argument dispositive, third and do not ad- any Fed.Reg. 30,575, aries” of release. 61 dress the first two. listing proposal The was based on the site’s score under EPA’s “Hazard Rank- II.
ing System,” a model which is utilized for ranking possible listing sites for on the NPL. The Omnibus Consolidated Rescissions and pt. app. 40 C.F.R. A. The Hazard Appropriations Act of Pub.L. No. 104- Ranking System regulations allow EPA to (“Ap- Stat. 1321-297 to 299 up separate exposure path- evaluate to four Act”), propriations regard- included a section ways (groundwater, soil, for each site surface ing funding carry to Comprehensive out the air). water, § Id. at 2.1. The Del Amo site’s Response, Compensation Environmental score was based on the threat chemicals in- (CERCLA). Liability Act of 1980 That sec- cluding hydrogen posed benzene and sulfide provided tion that groundwater migration pathway. none of the funds made available under objected hydrogen Comments to the use of heading may be used the Environ- scoring, arguing sulfide it had Agency propose Protection to never been considered a threat or to list additional facilities on groundwater. objected Comments also to the National List ... Priorities unless the EPA’s use of the “Del Amo” name rather Administrator receives written Pits,” specific than the more “Del Amo since propose facility or to list a EPA had indicated in 1993 the latter from the Governor of the State in which accurately Finally, name reflected the site. located, facility legislation or unless argued proposal comments that the was in- to reauthorize CERCLA is enacted. valid because the EPA had not received a 110 Stat. 1321-298. written pro- the Governor to pose Appropria- provisions the site as the Appropriations then-in-force Act required, tions Act but had instead acted force at the time EPA fied, propose listing rendering of the Del Amo Accord- subsequent listing site. invalid. 553(b). EPA, ingly, May § in a letter of See 5 U.S.C. contacted the director of the Califor- argued EPA has listing' that the can Department nia of Toxic Substance's Control However, stand if the was invalid. (DTSC) explained Appropria- what the EPA claims that the letter from Di- required regard tions Act rector requirements Blais satisfied the posal to the Del list Amo site. The letter Act, Appropriations so that the explained from EPA that the entirely proper. argues finding very specific language Act “contained exchange of letters between EPA and Blais requires EPA to obtain a letter from the inadequate would elevate form over requesting or that the substance, frustrate the intention of the delegating Governor submit a letter au- Furthermore, affected state. EPA urges thority request placement of sites on the *4 that overturning proposal ground on this appropriate NPL to the State official.” expensive could result in an and time-con- EPA included with letter to DTSC exam- its suming reproposal. ples States, including of letters from other arguments, contrast to its current governor requesting both letter from a leading EPA’s up actions site, governor of a and a letter from a demonstrate that it did understand the Act authorizing agency the state environmental requiring at type least some of letter from governor’s to act on the behalf. EPA’s let- May Governor himself. EPA’s 24 letter ter further noted that the deadline for the explained to DTSC that EPA needed a letter regarding 28, letter May Del Amo was requesting California’s Governor that 30, response, May 1996, in a letter dated proposed the Del Amo listing, site be or deputy DTSC director Paul D. Blais wrote alternatively, a letter from the dele- “[DTSC],
that
on behalf of the
Ad-
Wilson
gating
authority
his
to make such a
ministration,
your agency’s pro-
concurs with
to another state official. We
not
need
decide
posal to
Superfund
list the Del Amo
site on
delegation”
whether the alternative “letter of
Priority
the National
List.” EPA re-
[sic]
proposed
EPA
Ap-
would have satisfied the
sponded by
May
letter dated
ac-
Act,
propriations
as no such letter was sent.
knowledging receipt
of the
director’s
May
The letter
Deputy
Director
letter,
“confirming
and also
our understand-
Blais,
clearly
was rather
of neither of the
ing
you,
Deputy
that
as the
Director for the
types
Nonetheless,
requested.
EPA had
Mitigation Program,
authority
Site
have the
proceeded
to act on the basis of that
that EPA list sites on the NPL.”
letter,
responding
albeit after the exercise of
argue
that
exchange
authority
to “confirm” that Blais had
to re-
letters
quest listing.
between the
Di-
The fact that Blais’s letter was
satisfy
rector
requirements
Blais did not
very
normally
least not what EPA
Appropriations
of the
sought
Act. Petitioners con-
is further reflected in the
notice
tend,
agree,
and we
that if the
proposed rulemaking
Act was not
for Del Amo. 61 Fed.
satisfied,
(June
1996).
30,575
null
Reg.
and void.
That notice
Cf.
National Treasury Employees
v. De-
Union
included a section entitled “Governor’s Con-
vine,
(D.C.Cir.1984)
currence,”
733 F.2d
119-20
which noted that EPA had re-
(holding
Congress
ap-
that where
appropriate gover-
enacted an
ceived “letters from the
propriations
specifying
rider
regarding
proposed,
funds
nors”
each site
with the
rules,
exception
be used to effectuate new
facility.
of the Del Amo
The notice
Management’s implemen-
Office of Personnel
went on to state that EPA received a letter
recently promulgated
tation of
rules was
for the Del Amo site “from the State environ-
hibited
prior
and the rules were rendered null and
agreement
with
verbal
void).
agree
petitioners
We further
with
Governor
California.” Id. at
proposal,
that absent a valid
Administra-
The fact that EPA
and ob-
requirements
tive Procedure Act’s
governor’s
regarding
notice
tained a
letter
the oth-
proposed rulemaking
proposed
would not
satis-
suggests
er sites whose
may
depart
from the usual canon
not have viewed
reason
agency officials
clearly
language in
Congress
from Blais as so
uses different
received
statute,
Act as their
satisfying
Appropriations
so
different sections of a
does
suggests.
litigation position
intentionally. See Russello v. United
Conclusion verbal.) concurrence had been Under such We conclude that the circumstances I conclude that would the re- the “Del Amo” site on the NPL failed to quest is “from the Governor.” The statute comply with the Omnibus Consolidated Re- per- nowhere that the request commands scissions Act of 1996. sonally signed him. void, Accordingly, was null and subsequent and the of the site was purpose statutory requirement of this necessarily invalid. surely years has been met. No one in the 15 controversy pointed of this has harm WALD, Judge, dissenting: Circuit any party statutory goal or the that has My colleagues compliance.1 this form And invalidate the ensued from 15-year Del significant going square Amo site —the result of a inves- costs back to Moreover, (10th Cir.1992) assuming 1. even there were some 975 F.2d here, technical error section 706 of the Adminis (agency’s grant ap- failure an administrative provides trative Procedure Act that a court in peal prejudicial when district court could reviewing agency action must take "due account legal resolve the same issues and remand to prejudicial Applied ... of the rule of error.” futility”). would be "an exercise in case, prejudicial presum the rule of error suspect, have no reason to based the letter on ably petitioners they means that must show that representation from DTSC and the EPA’s in the prejudiced by procure the EPA's failure to Register agree- Federal of the Governor's oral letter written the hand Governor of ment, would acted that the Governor have in See, e.g., California. Doolin Sav. Bank Office contrary way signed if the demand for a (D.C.Cir. Supervision, 139 F.3d of Thrift pressed. had been 1998); All Indian Pueblo Council v. United
one, way ig- in no would excuse while suggest requirement, at least noring the it has consideration as to whether careful been fact violated. preferable Surely it have been far obtaining EPA to have insisted by the Gover- direct communication written of the other states. nor as it did the ease circumstances, we have the But these and I think the statute equivalent, functional meaning given reasonably can bear here.2 CORPORA- KiSKA CONSTRUCTION Kajima Engineering TION-U.S.A. Construction, Inc., Appellees, METROPOLITAN AREA WASHINGTON AUTHORITY, Appellant. TRANSIT
No. 98-7091. Appeals, United States Court District of Columbia Circuit.
Argued Jan. 19, 1999. Decided Feb. *7 subordinate,” necessarily word to indicate "it is from a but rather "From” is "used as function view, moving original manager.” majority's the source or thing.” force some- "it is In the Dictionary however, Webster's Third Int’l be "the the correct answer (1976). person every day parlance, manager personally unless had subordinate” asks, "Who is this from?” and the memo memo comport with dictated the memo. This does not signed by a subordinate "on was written and understanding. common manager, behalf of” the the correct answer is not