*1 301 Waterhouse, 1, at n. 109 knowledge, speculation. 490 U.S. 233 but rather is mere McGill, 846; F.3d 203 at see also 1775. Fed. S.Ct. 56(e). R.Civ.P. Dr. Dr. Forman’s claim that Crew Accordingly, because Dr. Forman has him of his against retaliated result prima established a facie case of retalia fails, however, complaint because EEO tion, and the Smithsonian has failed to sufficient facts allege Dr. Forman does meet its production burden of to set forth Although Dr. causation. Crew show legitimate, nonretaliatory reason for complaint, knew of the EEO his decision Hoffman’s failure to act on Dr. Forman’s Dr. promote not to Forman in 1995 oc complaint, grant we reverse the of sum years curred three after Dr. Forman filed mary judgment on Forman’s 1995 retalia complaint, challenged his EEO his claim; tion we otherwise affirm. Dr. non-promotion 1991 under a different contention, Forman’s other that the administration, Smithsonian and after district court abused its discretion in de changes had been made Museum’s nying discovery him further unpersua is curatorial staff. Because of the time scope sive view of the wide of discre lapse, rely solely Dr. Forman cannot See, tion accorded to the district court. timing of Dr. decision not to Crew’s e.g., United States v. Corp., 253 Microsoft promote him to show causation. See Hob cu-riam), (D.C.Cir.2001) 34, 100-01 (per (D.C.Cir. Reno, 255, rook v. — rt. denied on grounds, ce 1999); 80, Baldrige, Mitchell v. — -, U.S. S.Ct. L.Ed.2d (D.C.Cir.1985). Acting Assistant Pro - (2001); Canada, Carey Inc. v. Co vost evaluation Dr. Freudenheim’s Co., lumbia Cas. promotion
Crew’s denial of also cannot
support a causal connection between Dr. promote failure to Dr. Forman
Crew’s protected activity.
Dr. After Forman’s
discussing promotion the 1995 decision Forman,
with Dr. Freudenheim indicated thought that he that “it like [Dr. looks personal capacity, Jim J. TOZZI his (ei being prejudicially handled Forman] and as President of Multinational sued, ther previously because he or be Services, Inc., al., Appel- et Business part vague cause he’s not of some team lants, concept), suspect and I that [the Smithso will if goes nian] not win this one it into DEPARTMENT HEALTH U.S. OF noted, legal processes.” formal As Freu SERVICES, AND et HUMAN statement, qualified denheim later this ex al., Appellees. plaining solely that it was based on infor No. 00-5364. provided mation Dr. Forman had pertinent he did not have “all of the infor of Appeals, United States Court disposal mation at at the time [his] [he] District of Columbia Circuit. expressed Dr. For- Although [his] view.” Argued Sept. 2001. man summary judgment is entitled on Decided Nov. credited, have Freudenheim’s initial letter Reeves, see U.S.
2097, it is insufficient to establish causa personal it
tion because is not based on *3 argued
Charles J. Fromm the cause and appellants. filed the briefs for Quill Terry F. was on the brief for amici curiae Public Health Scientists in appellants. Blumberg, Peter D. Assistant At- U.S. torney, argued appellee. the cause for With him on the brief were Kenneth L. Wainstein, Attorney, Craig U.S. and R. Lawrence, Attorney. Assistant U.S. TATEL, Before: Judge, Circuit WILLIAMS*, SILBERMAN and Senior Circuit Judges.
Opinion by for the Court filed Circuit Judge TATEL. opinion
Concurring filed Senior Judge Circuit SILBERMAN. TATEL, Judge: Circuit Acting pursuant provision Health Act that requires Public Service of Health and Human Ser- publish vices to a list of substances “reasonably anticipated “known” or to be” Secretary upgrad- human carcinogens, the ed the chemical dioxin from the “reason- category. ably anticipated” to the “known” products A manufacturer of release incinerated, oth- together dioxin when with allegedly upgrade, ers affected ar- gues Secretary, violation regulations, HHS acted without sufficient is a epidemiological evidence dioxin * Judge regular argument. oral Circuit Williams was in active service at the time of Senior (or delist) Secretary may list Before the carcinogen. Although we
known human substance, that the reject Secretary’s arguments undergoes a the substance and that the standing lacks manufacturer process. HHS multi-step review unreviewable, agree decision is upgrade (1998), app. Carcinogens Eighth Report on that, the def- given court with the district Acting on recommendations C. interpretation of agency’s an erence owed community, begins by the NTP scientific Secretary acted regulations, its own Register a list of publishing in the Federal arbitrarily capriciously. nor neither agency that the believes merit substances time, At the same consideration. about I. committee, on Carcino- NTP Public Congress amended the *4 Committee, reviews the sci- gens Review the Secre require Act to Health Service prepares a back- entific literature and Welfare, Health, Education and tary of discussing the literature ground document Services, pub and Human to now Health listing. recommending and substances for suspected and carcino a list of known lish recommendations, together with the These and Re Biomedical Research gens. See any public com- background document Amendments, No. Training Pub.L. search response in to the Federal ments received 95-622, § Tit. II 92 Stat. 3435- notice, re- Register peer are sent to two 241). (1978) § (amending 42 U.S.C. Interagency view committees: the NTP’s “Report Carcinogens”, on the list Entitled (a Group composed of Department’s Working prepared biennially committee (“NTP”). Toxicology Program agencies) National scientists from several federal Although regulate HHS does not sub Board of and a subcommittee NTP’s upon their stances based inclusion (a advisory chartered Scientific Counselors Report, listing a in some instances committee). pub- The subcommittee holds —or upgrade may trigger obligations under — hearings lic and receives written com- example, For agency regulations. Then, ments. the subcommittee and Hazard Communication Standard OSHA’s Group make formal recommenda- Working to label as a car requires manufacturers Committee, tions to the NTP Executive in cinogen every substance listed the Re in a which turn makes recommendation 1910.1200(d)(4)(i). § port. See 29. C.F.R. independently NTP Director. After 1910.1450(e)(viii) § (requiring also id. Executive rec- evaluating the Committee’s OSHA-regulated adopt spe laboratories to ommendation, a final the Director submits procedures cial for substances listed in the If Report Secretary. draft of the to the carcinogens); known human as Secretary approves Report, a no- § (defining 47.11 some hazardous C.F.R. published Register in the Federal tice is part by in to the Re chemicals reference (or delisted) identifying newly all listed port requiring Department of Labor- substances, them either classifying identify haz regulated operators mine “reasonably anticipated to be” “known” or produced brought chemicals ardous carcinogens, announcing human property). listing trig mine A can also Report. signif- latest availability of the Of regulations. ger obligations under state case, Secretary may to this icance Synthetic Organic See Chem. Ass’n Mfrs. category one to the move substances from Sec’y, Dep’t Health and Human going through without the same for- (W.D.La. other Servs., F.Supp. 1989) process. Eighth Report mal review (listing triggered regulatory state multi-step process). review provisions). (describing 1982 ver- criteria and the between these “criteria” for Secretary has issued quote are central to this or “rea- sion as “known” classifying substances carcino- in full: version to be” human new sonably anticipated in issued originally As gens. Carcinogen: to be Human Known provided: criteria of carcino- There is sufficient evidence Carcinogens: to be Known which humans genicity studies carcino- evidence There is sufficient relationship be- indicates a causal humans which from studies genicity sub- exposure agent, tween relationship be- causal indicates cancer. mixture and human stance or cancer. human agent and tween the be a Hu- Reasonably Anticipated to Hu- to be a Reasonably Anticipated Carcinogen: man Carcinogen: man carcino- limited There is evidence of car- limited evidence A. There is humans, genicity from studies humans, from studies cinogenicity interpreta- which indicates causal interpreta- that casual indicates credible, that alternative tion is but credible, the alterna- but that tion is chance, bias or explanations, such as chance, bias such as explanations, tive *5 adequately not be confounding, could adequately could not confounding, or excluded; or excluded, or be of carcino- There is sufficient evidence of evidence is sufficient B. There experimental in genicity from studies experi- in from studies carcinogenicity is that there animals which indicates that indicates animals mental malignant of an increased incidence ma- of an increased incidence is there malig- benign combined and/or (a) species multiple in tumors: lignant (a) species or multiple nant tumors: in (b) strains, multiple experi- in or or (b) sites, mul- or multiple tissue at different (preferably with ments (c) or to tiple exposure, routes of using dif- or of administration routes to inci- degree regard unusual with (c) levels), an unusu- or to dose ferent tumor, at dence, age or type or of site incidence, to regard with degree al - onset; or tumor, age onset. type or of or site may provided be evidence Additional evidence sufficient There is less than dose-response ef- concerning by data labo- in humans or carcinogenicity of muta- fects, however, as information animals; agent as well ratory or chemical structure. genicity structurally- belongs to a well defined whose class of substances related Report. Eighth An- previous in a are listed members crite- that under these agree The parties Report on Carcino- nual or Biennial con- were epidemiological studies only ria be human to gens as either known placing a substance when sidered anticipated reasonably carcinogen, or com- in scientific Many category. first there is carcinogen or to be human however, of urge revision munity, began information relevant convincing consid- provide for broader the criteria mechanisms through acts agent is, evidence—that eration of “mechanistic” cancer likely cause indicating it would process- the actual biochemical evidence of in humans. In cancer. a substance causes byes which carcinogenicity regarding Conclusions Secretary published revised response, the animals experimental or in humans Because the differences criteria (>90%) major source judgment, with Food are based on scientific ... exposure human Other [dioxin] to all relevant in- given consideration exposure include inhalation pathways in- Relevant information formation. medical, municipal, [dioxin] not limited to dose re- cludes but is incinerators and other chemical industrial waste sponse, exposure, route of structure, metabolism, processes incineration and combustion pharmacokinet- water ics, ingestion drinking ... populations, genetic sensitive sub (0.01% intake). effects, daily relating or data mechanism of action or factors people Id. Most have some level of dioxin may given substance. unique be in their tissues. Id. example, may there be substances For Secretary originally The listed dioxin for which there is evidence of carcino- “reasonably anticipated” category. laboratory animals but genicity In Report supra. See Ninth howev- indicating data compelling there are er, Agency the International for Research mecha- agent through acts (“PARC”), on Cancer a division of the operate in humans nisms which do not Organization Health that has its World reasonably and would therefore scheme, up- carcinogen own classification anticipated to cause cancer humans. graded highest category dioxin to its based Report. Eighth epidemiological on “limited” evidence and “strong” evidence dioxin acts precise question before us is whether “through a relevant mechanism of carcino- final, paragraph unindented modifies (as pro- genicity.” response, Id. the NTP categories both inter- it) posed upgrading dioxin to the “known” prets “reasonably anticipat- *6 claim). (as approval by Report After category. category appellants ed” Committee, Carcinogens Review Secretary’s This case involves the deci- proposed listing was forwarded to the upgrade sion to dioxin from the “reason- Group Working and the subcommittee of ably anticipated” category. to the “known” the Board of Scientific Counselors. The colorless, needle-shaped A chemical not Group Working approved upgrade, and commercially produced, dioxin is released comment, public after notice and so did by-product paper pulp as a and bleach- background Board. The draft document ing. See HHS Ninth on Carcino- epidemiological relied on both and mechan- (2001). gens, Addendum Dioxin is also istic evidence: emitted during incineration of chlorine- is known to be a human car- [Dioxin] materials, containing polyvinyl such as cinogen types based on of evi- several (“PVC”) plastic. chloride Incineration of dence: waste, hospital usually contains PVC plastic, produces large quantities of dioxin. Human have found an associ- studies Id. exposure ation between dioxin and to all mortality respect cancer with stable, Chemically persists in dioxin combined, non-Hodgkin’s cancers long periods for environment of time. Be- cancer; lymphoma, lung water, it cause dioxin settles into soil and up experimental ends in animal animals have fatty tissue and eventu- Studies ally products. benign induces dairy According [dioxin] meat and shown multiple Report, exposure malignant neoplasms the Ninth human oc- multiple species; ways: curs in several issue sites [sic] dence that compelling body of evidence indi- it causes cancer in humans. A similarity Finding Secretary’s a basic in the mech- interpretation cates reasonable,” induction of animal and “eminently anism of the criteria and toxico- human tissue biochemical court granted summary judgment district at com- logical responses [dioxin] Department. for the See Tozzi v. United Servs., and tissue levels. parable Dep’t doses States Health and Human (D.D.C. 2000). Sept. No. 99-1170 Toz- (Sept. Background Draft RC Document zi, Brevet, culinary plaintiffs and the now 1997). appeal. Our review is de novo. Russell v. approval, Following the Board’s Jim (D.C.Cir.2001) Principi, 257 F.3d Tozzi, and an “regulatory consultant” case, appellant in this sent a letter to the II. stating Director
NTP in the known cate- may not list substances begin We with two threshold issues. ep- gory without “sufficient” evidence Department The argues that none of the idemiological studies. Tozzi also com- appellants standing has to challenge the plained that much was crammed into “[t]oo that, dioxin upgrade any list- too and that the NTP failed to little time” ing decisions are unreviewable. We con- provide “key” certain documents to the sider each argument turn. Tozzi’s public. Responding to letter and conceding that “review had been inade- Standing NTP Director announced a quate,” the To standing, have Article III “includpng] “re-review” of dioxin another plaintiff must demonstrate an “actual or open, public NTP review Board “injury-in-fact” “fairly immediate” that is time, At the same Subcommittee.” challenged traceable” to the conduct and Director his belief that “the emphasized “likely” to be “redressed a favorable appropriately applied.” [had been] criteria Lujan Wildlife, decision.” v. Defenders of After the additional round of notice and 555, 560-61, 504 U.S. comment, the Board of Scientific Counsel- (1992) (internal quotations L.Ed.2d but against upgrade, ors voted both omitted). plaintiffs allegations marks the NTP Executive and the Committee *7 “speculative ulti purely must be —the approved Concurring NTP Director it. injuries implausible mate label for too to Director, Secretary with the listed di- standing.” Mgmt. Advanced oxin the Ninth as a known car- Tech., FAA, 633, Inc. v. 637 cinogen. (D.C.Cir.2000) (internal marks quotation Tozzi, Industries, together with Brevet a omitted). standard, Applying this the dis disposable plastic manufacturer of connec standing. trict court found that Brevet had during open surgery, tors used heart Empire Department argues State Restaurant & Tavern Asso The first that ciation, actual or Gilhooleys, and Greenbaum & a Brevet has failed to show imme restaurant, injury. disagree. According New York then filed suit in the diate to We presi States District for the Dis an affidavit Brevet’s United Court submitted dent, percent pursuant ninety-five trict of Columbia to the Adminis over of the com Act, 702-706, pany’s depend trative Procedure 5 sales on the continued use U.S.C. claiming plastic by that acted arbi of the medical establish PVC ¶ president Aff. trarily capriciously by upgrading and diox ment. Brewer 10. The epidemiological companies, in without sufficient evi also states that healthcare “speculative,” thus think it not at all groups, have We pressured by environmental 637, at to ex- Mgmt., concern over the dioxin hazards Advanced expressed Brevet, medi- company with incineration PVC a whose reve- pect associated that municipalities have supplies; cal that some depend entirely almost on the contin- nues phasing for the adopted calling resolutions plastic the medical ued use PVC all, all, nearly containing PVC out of industry, experience profits. will reduced supplies; and products, including medical DIRECTV, FCC, 816, Inc. v. See reputation and “profits, that Brevet’s (D.C.Cir.1997) may ... (“[Standing if an adversely would be affected goodwill” prof- ... to lost established reference government agency is- “authoritative U.S. its....”). report a widely sue[d] disseminate[d] Department argues that even The next products that are implying ... Brevet’s decline, to that profits if Brevet’s were hu-
responsible introducing for known “fairly injury would not be traceable” carcinogen man into the environment.” Lujan, 504 upgrade. the dioxin U.S. ¶ ¶ Id. 6-9. (internal quotation supports evidence Brevet’s Record omitted). Department points marks municipalities— Three claims. California pre- the anti-dioxin movement out Francisco, Berkeley'— Oakland and San listing process. It also claims dates adopted forcefully calling resolutions for government pressure agencies healthcare institutions to eliminate their compa- dioxin and on healthcare regulate plastic. City County use of PVC products nies to reduce the use of PVC Francisco Resolution No. 021-98- of San not dioxin re- will continue whether or 8, 1998); (Sept. City Oakland Council COE carcinogen. a known human mains listed as (Feb. 2, 1999); No. 74778 Resolution Berkeley Resolution No. 196-N.S. Department’s Even if the claims 1999). Elsewhere, (Sept. state and true, disagree were that Brevet has we Hartford, Connecticut, local from agencies injury fairly trace failed to show its Charlotte, Carolina, Seattle, North upgrade. pointed the dioxin As we able to Washington, hearings have on PVC held Meese, ap out in Block v. we have never plastic Health, use. See Centek FOR Envi- plied a “tort” standard of causation to the Justice, ronment Dioxin Public Event question traceability. 1999). Update (Nov. Supporting Bre- (D.C.Cir.1986). Where, here, claim that groups vet’s environmental are alleged injury directly flows not from the providers pressuring healthcare to reduce action, challenged agency but rather plastic, or eliminate the use PVC record independent parties, third actions of evidence demonstrates Tenet Health- showing that “the required have Corporation, annually pur- care *8 at least a fac agency action is substantial chases over three billion dollars worth of parties’ actions.” motivating tor the third supplies, medical has announced that it will Pierce, v. Cmty. Creative Non-Violence purchase products. seek to PVC-free See for 663, For ex Release, Harm, Healthcare Press Without ample, plaintiffs claiming we have allowed Tenet Prefers Non-PVC Medical Products (Oct. 1999) (ac- regulatory changes have caused “com Other Brevet customers petitive “exposure as injury,” tual defined potential), including and Baxter Inter- national, Services, competition,” regulating the Health to sue Universal Kaiser though the harm resulted agencies, Permanente and Catholic Healthcare even West, directly independent purchasing have announced similar moves. Id. most Review olutions all cite initial Commit- Bristol-Myers parties. of third decisions Shalala, preliminary determination for tee’s v. Squibb Co. be a (D.C.Cir.1996); proposition Indus. dioxin is “known” to Liquid Carbonic (D.C.Cir. FERC, merely hypothe- human not Corp. carcinogen, v. cases). 1994) Resolutions, (citing carcinogenic. to be sized Report’s at 9. of the im- supra Because to the facts of standard Applying this moreover, we have no doubt that portance, have little doubt that we this Secretary’s upgrade decision to dioxin a “substan- represent will upgrade dioxin number will cause non-trivial of some and in the decisions state tial factor” pres- already under companies, healthcare products contain- regulate agencies local activists, to sure from environmental re- companies or of healthcare ing dioxin plastics. duce or end use of PVC their plastics. of PVC purchases end reduce or Report on Carcino- Congress intended An factor reinforces our con additional government’s as the federal gens to serve injury both and regarding clusions causa current on the statement authoritative attaches an government tion: When the regarding carcino- knowledge state of inherently pejorative damaging term H. R. various chemicals. See genicity of product, “carcinogen” such as (1978) Rep. 95-1192, (referring to at 28 No. harm increases ex probability of economic “comprehensive document” the list as Department’s reliance on ponentially. The suspected carcin- “all known or containing Block, label government’s also intended Congress ogenic agents”). inherently pejora “propaganda” was state, a resource for to serve as the list tive, misplaced. It is not too is therefore regulatory authorities. federal local to conclude that speculative “an that the list include (requiring See id. economically, even with injure will Brevet efficacy appropriate of the evaluation See, causal factors. presence of other standards, recom- existing regulatory Found, Legal Mountain States e.g., improve the need to regarding mendations (D.C.Cir. Glickman, 1234-35 standards”). hopes regarding These these 1996) risk of (holding incremental forest been realized. importance have the list’s challenged de fires from Service’s Forest highly widely The list is disseminated and Article III cision sufficient influential: A member Board of other causal standing, despite existence Re- noted “the Scientific Counselors fires). factors for forest impor- very ... Carcinogens port on Depart- merit is the Equally without by a used ... It is tant document.... assuming a that even ment’s contention both nation- groups regulatory number of traceable to the dioxin likely injury fairly I think it internationally and as ally as well not “redressa- injury is upgrade, Brevet’s impact preventing very large has a 561, 112 Lujan, U.S. ble.” public...'.” to the U.S. possible hazards true, may De- 2130. While it Board of Scientific Coun- Proceedings, Tr. insists, municipalities and partment selors, Carcinogens Subcommit- Report on deci- will not reverse providers (Oct. 1997). Thus, healthcare Meeting tee at 10 use, agree do not limit sions to PVC contrary Department’s argument, to the future harm could alleged that “Brevet’s to ex- “speculative” all we think it not at *9 a decision of this not be redressed cause upgrade dioxin will pect Nothing in Appellee’s Br. at Court.” and local number of state some non-trivial any other federal Indeed, the record indicates dioxin. agencies regulate car- a “known” has dioxin Oakland, agency labeled Francisco res- Berkeley, and San 310 and, argu- “regulatory asked this at oral determinations” unreviewable
cinogen
about
ment,
published
and not character
Department
was un- because
counsel for
Telecomms. Research &
Thus,
binding);
ized as
we to
able to name one either.
were
FCC,
decision, Action Ctr. v.
Secretary’s upgrade
set aside
(D.C.Cir.1986) (finding document
to be
longer point
activists could no
to an
dioxin
part
merely general policy statement
authoritative determination
the United
agency
pro
characterized it as
because
government that dioxin is “known”
States
“solely
purpose
for the
of reference
duced
Conversely,
cause cancer in humans.
convenience”)
(internal quotation
point
government
Brevet could
out that a
omitted).
marks and citation
report widely accepted
comprehensive
a “known”
longer
no
lists dioxin as
carcino-
Seizing upon these two indicia of
gen.
governments
State and local
would unreviewability,
Department argues
dioxin,
likely
regulate
be
less
listing
points
that the
is unreviewable.
It
companies
healthcare
would in turn
less
Report’s preamble
out that the
states that
short,
likely
stop using
plastic.
In
PVC
purposes
it is “for informational
only”
reclassifying dioxin
at
would redress
least
Secretary
published
never
injury.
some of Brevet’s economic
report
entire
in the
Register.
Federal
alone,
Taken
the characterization of the
standing,
Because Brevet has Article III
Report
might
sup
as informational
well
culinary
we need not consider whether the
port
Report
a conclusion that the
has no
appellants
standing
and Tozzi have
as well.
“legal
Copper,
effect.” Kennecott Utah
Found.,
Energy
See Watt v.
Action Educ.
considerations,
F.3d at 1223. Additional
151, 160,
454 U.S.
102 S.Ct.
however, lead us to conclude otherwise.
(1981) (declining
L.Ed.2d 309
to address
standing
plaintiffs
remaining
after find-
with,
To begin
although
the final
ing
plaintiff
one
with standing); Mountain
published
was not
Register,
Federal
States,
(same).
ing
Reviewability
summary
Equally impor-
of the decision.
tant, even though
Secretary
takes no
Reviewability
APA hing
under the
pursuant
listing,
action
the contention
upon
listing
es
whether the
“legal
has
ef
effect,”
listing
that a
“binding
Ap-
has no
fect,
turn is a function of the
pellee’s Br. at
inaccurate:
Listing
agency’s intention to bind either itself or
carcinogen triggers
substance as a human
regulated parties.”
Copper
Kennecott Utah
OSHA,
obligations
Department
under
orp.
Dep’t
v. United States
Interi
C
Labor and state regulations.
supra
See
at
or,
(D.C.Cir.1996).
304. Additional
a listing’s
evidence of
“le-
determination,
making this
we have some
gal effect” comes from
fact
times looked to “the agency’s own charac
order to remove a substance from either
“publication
terization of its action” and to
category,
must undertake
or the lack thereof in the
Register
Federal
procedure including
the same elaborate
—
or the
Regulations.”
Code Federal
Am.
required
notice and
for an ini-
comment—
EPA,
Portland Cement Alliance v.
listing.
supra
tial
304-05.
Where the
agency characterizes its action as non
Nothing
Safety Equipment
Industrial
(D.C.Cir.
binding
publish
EPA,
or does not
in the Federal Ass’n v.
311
emphasizing Secretary “substantial deference.” Thom
respirators,
that ranked
guide
Shalala,
it
v.
repeatedly noted that was
Univ.
512 U.S.
guide
the
that
Jefferson
504, 512,
114
presently man
S.Ct.
which the use of mechanistic Secretary’s in support of indentation dence, an “reasonably to the applies points but Brevet to no textu terpretation, ticipated” category, leaving unaffected demonstrating al evidence the last the Secre understanding traditional applies only “reasonably to the paragraph in the tary may list a substance “known” anticipated” category. argues Brevet if there is “sufficient” evi category only Secretary’s interpretation completely epidemiological studies. Inter dence from language category, in the “known” defeats differently, the De preting the criteria company says requires “studies paragraph the last partment insists Brevet, (meaning, according humans” permitting applies categories, to both thus exclusively that are “suffi epidemiology) on mechanistic evidence when reliance relationship” a causal “indicate[ ] cient” to classifying substances as known carcino Thus, and cancer. between substance interpretation, gens. this that fails that says, Brevet a substance Department points out that the version most, At cannot be classified as such. test published Report, quoted appearing however, an inconsisten Brevet has shown opinion, swpra in full in this at SOS- earlier (the formatting cy between the criteria’s OS, paragraph the last with wider shows indentation) and the “known” absence of preceding paragraphs. than the margins text, would in which case we category’s Secretary’s resolution of challenges the Sec defer to
Because Brevet Spring Cold Granite regula contradiction. See retary’s interpretation of HHS (Brevet and Health Re Safety cri Fed. Mine argues tion nowhere that the Co. v. (D.C.Cir. Comm’n, view regulation), teria are not a we owe the *11 SILBERMAN, 1996) (“The Judge, Circuit Secretary’s plausible and sen Senior regulation own would reading concurring: sible of his prevail company presented even if the had parts I with all of the court’s concur plausible alternative construc equally an portion dealing with opinion including the tion”). reviewability. interesting But it is an “contemporane- argues Brevet next categorize the question how one should Secretary indicates that the ous evidence” might that we review. It agency’s action broadening no intention of had adjudica- an thought to be informal revi- through “known” criteria the 1996 regula- of the specific application tion—a Appellants’ Opening Br. at 23-27. sions. only tion—but because it has future ef- points Brevet argument, of this fect, accurately I think it is described by the press release issued Secre- certainly interpretive rule. It has more day criteria tary’s Office on the the revised statement, typical policy than the bite in published were and to an article Envi- many which are not at all. of reviewable Perspectives, the ronmental Health NTP’s See, e.g., Copper Kennecott Utah v. United newsletter, official both of which state that Interior, 88 F.3d Dep’t States of cate- listing the criteria for the “known” (D.C.Cir.1996). In that I regard, should “unchanged.” noth- gory remain We see express a view on the question like to demonstrating document ing either panel Appalachian Power raised interpretation Department offers v. 1021-22 Co. EPA departure here from [the “marks Secre- panel, In that case the prior tary’s] understanding stated enact- split authority, recognizing suggest- our Coal, ing regulation.” Consolidation virtually agency ed all statements portions Although including policy future state- effect— press -quote Secretary, release ments —were rules under the broad defini- statement that the criteria for the “known” 551(4). § tional language category unchanged quo- remain was not a part “rule” the whole or a of an means tation, anything nor in the record does agency general particu- statement of or any indicate that the or official applicability lar and future effect de- authority interpret with the criteria au- signed implement, interpret, pre- or thorized the statement. In addition to suf- policy describing scribe law or or defect, fering from the same the newslet- organization, procedure, practice or re- ambiguous. Although saying ter is at best quirements agency of an and includes that the 1996 criteria “known” cate- for.the prescription approval or for the fu- gory substantively are unchanged, rates, corporate wages, ture of or finan- newsletter, after final quoting the criteria’s thereof, cial reorganization structures or full, paragraph in states that “the last facilities, prices, appliances, services or especially important factor is ‘for the rea- valuations, allowances therefor or of sonably anticipated to be a human carcino- ” costs, accounting, practices bearing or added). gen category’ (emphasis The any foregoing; .... phrase “especially important” suggests the final paragraph applies to the all,” panel “virtually but in light said “known” category as well. with suggested disagreement Syncor of its The decision of the district court af- Shalala, Corp. International firmed. (D.C.Cir.1997), which described a typical policy
So ordered. statement as an indica- effect) (with only legitimate- I future policy, speech enforcement agency’s of an tion *12 Perhaps panel ly meant can be described as a rule. what the imagine cannot what could reasoning “pre- to the definition is the word given key its exclude-or College scribed,” which in RANDOMHouse be excluded. lay means “to down a rule” DiCtionaey, pri- our Syncor and panel criticized added), in the 1941 (emphasis not Web- relied for Syncor opinions on or definition, APA explicitly the New International DictionaRY considering ster’s authoritatively as a lay meant “to down authority law an administrative but no less added). words, (emphasis guide” wrote: Scalia once than Justice surely agency meant that an Congress gen- either every statement is of Since purpose of a rule statement that serves the and since applicability, particular or eral rule, If a rule. it walks like is “designed is agency does everything ie., like a is laid down—it is quacks law interpret, prescribe or implement, rule — (that any agency a rule. But statement which is only limiting policy, etc.” the or authoritatively not seek to answer an does part of the definition say, defining) underlying policy legal issue does not fit ... effect.” future “agency statement agency criteria. In this ... [There- is of course absurd. This authoritatively proclaims which substances acknowledged generally it is fore] carcinogens, known which is judicial qualify attitude to- responsible why properly one I think it is described as an APA definition is this central ward interpretive rule. disregard. benign APA, Scalia, Yankee: The Vermont Court, Circuit, Supreme
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