Search

Sotomayor Cases

Loading...

Flash Player 9 (or above) is needed to view presentations.
We have detected that you do not have it on your computer. To install it, go here.

0 comments

Post a comment

    Post a comment
    Embed Video
    Edit your comment Cancel

    Notes on slide 1

    Favorites, Groups & Events

    Sotomayor Cases - Presentation Transcript

    1. 07-0581-cv Maloney v. Cuomo UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT ______________ August Term, 2008 (Argued: December 15, 2008 Decided: January 28, 2009) Docket No. 07-0581-cv ______________ JAMES M. MALONEY , Plaintiff-Appellant, —v.— ANDREW CUOMO , in his official capacity as Attorney General of the State of New York, DAVID PATERSON , in his official capacity as Governor of the State of New York, KATHLEEN A. RICE , in her official capacity as District Attorney of the County of Nassau, and their successors,* Defendants-Appellees. ______________ B e f o r e: POOLER, SOTOMAYOR, and KATZMANN , Circuit Judges. ______________ Appeal from a judgment of the United States District Court for the Eastern District of New York (Spatt, J.) dated January 17, 2007, granting defendants-appellees Andrew Cuomo and David Paterson’s motion to dismiss and defendant-appellee Kathleen A. Rice’s motion for judgment on the pleadings, and from an order dated May 14, 2007, denying plaintiff-appellant’s motion for reconsideration. Affirmed. * Pursuant to Federal Rule of Appellate Procedure 43(c)(2), Governor David Paterson is automatically substituted for former Governor Eliot Spitzer as a defendant in this case.
    2. ______________ JAMES M. MALONEY , appearing pro se, for Plaintiff- Appellant. KAREN HUTSON , Deputy County Attorney (Lorna B. Goodman, County Attorney, on the brief) for Defendant- Appellee Kathleen A. Rice, Nassau County District Attorney, Mineola, N.Y. ______________ PER CURIAM : Plaintiff-appellant James Maloney was arrested at his home on August 24, 2000, and charged with possessing a chuka stick in violation of N.Y. Penal Law § 265.01(1). A “chuka stick” (or “nunchaku”) is defined as any device designed primarily as a weapon, consisting of two or more lengths of a rigid material joined together by a thong, rope or chain in such a manner as to allow free movement of a portion of the device while held in the hand and capable of being rotated in such a manner as to inflict serious injury upon a person by striking or choking. Id. § 265.00(14).1 This charge was dismissed on January 28, 2003, and Appellant pleaded guilty to one count of disorderly conduct. As part of the plea, he agreed to the destruction of the nunchaku seized from his home. Appellant filed the initial complaint in this action on February 18, 2003, and then an amended complaint on September 3, 2005, seeking a declaration that N.Y. Penal Law §§ 265.00 through 265.02 are unconstitutional insofar as they punish possession of nunchakus in one’s home. The district court dismissed the amended complaint as against the New York State 1 There are two sections of the New York Penal Law numbered 265.00(14). 2
    3. Attorney General and the Governor for lack of standing, concluding that neither official is responsible for enforcing the statutes at issue. The district court granted defendant Nassau County District Attorney Kathleen Rice’s motion for judgment on the pleadings in relevant part because the Second Amendment does not apply to the States and therefore imposed no limitations on New York’s ability to prohibit the possession of nunchakus. Appellant moved for reconsideration on the ground that the district court had failed to consider certain other claims raised in his amended complaint; the district court denied that motion. On appeal, Appellant challenges only the district court’s dismissal of his claims against Rice.2 He argues, inter alia, that New York’s statutory ban on the possession of nunchakus violates (1) the Second Amendment because it infringes on his right to keep and bear arms, and (2) the Fourteenth Amendment because it lacks a rational basis. Neither of these arguments has any merit. The Second Amendment provides: “A well regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear Arms, shall not be infringed.” U.S. Const. amend. II. The Supreme Court recently held that this confers an individual right on citizens to keep and bear arms. See District of Columbia v. Heller, 128 S. Ct. 2783, 2799 (2008). It is settled law, however, that the Second Amendment applies only to limitations the federal government seeks to impose on this right. See, e.g., Presser v. Illinois, 116 U.S. 252, 265 (1886) (stating that the Second Amendment “is a limitation only upon the power of congress and the 2 Appellant makes no argument in his brief concerning the district court’s dismissal of his claims against the Attorney General and the Governor. We therefore deem any challenges to that aspect of the district court’s judgment waived. See Yueqing Zhang v. Gonzales, 426 F.3d 540, 541 n.1 (2d Cir. 2005). 3
    4. national government, and not upon that of the state”); Bach v. Pataki, 408 F.3d 75, 84, 86 (2d Cir. 2005) (holding “that the Second Amendment’s ‘right to keep and bear arms’ imposes a limitation on only federal, not state, legislative efforts” and noting that this outcome was compelled by Presser), cert. denied, 546 U.S. 1174 (2006). Heller, a case involving a challenge to the District of Columbia’s general prohibition on handguns, does not invalidate this longstanding principle. See Heller, 128 S. Ct. at 2813 n.23 (noting that the case did not present the question of whether the Second Amendment applies to the states). And to the extent that Heller might be read to question the continuing validity of this principle, we “must follow Presser” because “[w]here, as here, a Supreme Court precedent ‘has direct application in a case, yet appears to rest on reasons rejected in some other line of decisions, the Court of Appeals should follow the case which directly controls, leaving to the Supreme Court the prerogative of overruling its own decisions.’” Bach, 408 F.3d at 86 (quoting Rodriguez de Quijas v. Shearson/Am. Express, Inc., 490 U.S. 477, 484 (1989)) (alteration marks omitted); see also State Oil Co. v. Khan, 522 U.S. 3, 20 (1997). Thus, N.Y. Penal Law §§ 265.00 through 265.02 do not violate the Second Amendment. The Fourteenth Amendment similarly provides no relief for Appellant. “Legislative acts that do not interfere with fundamental rights or single out suspect classifications carry with them a strong presumption of constitutionality and must be upheld if ‘rationally related to a legitimate state interest.’” Beatie v. City of New York, 123 F.3d 707, 711 (2d Cir. 1997) (quoting City of Cleburne v. Cleburne Living Ctr., Inc., 473 U.S. 432, 440 (1985)). We will uphold legislation if we can identify “some reasonably conceivable state of facts that could provide a rational basis for the legislative action. In other words, to escape invalidation by being declared irrational, the 4
    5. legislation under scrutiny merely must find some footing in the realities of the subject addressed by the law.” Id. at 712 (internal quotation marks and citations omitted). The legislative history of section 265.00 makes plain that the ban on possession of nunchakus imposed by section 265.01(1) is supported by a rational basis. Indeed, as Appellant concedes, when the statute was under consideration, various parties submitted statements noting the highly dangerous nature of nunchakus. For example, New York’s Attorney General, Louis J. Lefkowitz, asserted that nunchakus “ha[ve] apparently been widely used by muggers and street gangs and ha[ve] been the cause of many serious injuries.” Mem. from Attorney Gen. Louis J. Lefkowitz to the Governor (Apr. 8, 1974). And the sponsor of the bill, Richard Ross, stated that “[w]ith a minimum amount of practice, [the nunchaku] may be effectively used as a garrote, bludgeon, thrusting or striking device. The [nunchaku] is designed primarily as a weapon and has no purpose other than to maim or, in some instances, kill.” See N.Y. Penal Law § 265.00, practice commentary, definitions (“Chuka stick”) (quoting Letter of Assemblyman Richard C. Ross to the Counsel to the Governor (1974)). Appellant does not dispute that nunchakus can be highly dangerous weapons. Rather, his principal argument is that section 265.01(1) prevents martial artists from using nunchakus as part of a training program. But the fact that nunchakus might be used as part of a martial-arts training program cannot alter our analysis. Where, as here, a statute neither interferes with a fundamental right nor singles out a suspect classification, “we will invalidate [that statute] on substantive due process grounds only when a plaintiff can demonstrate that there is no rational relationship between the legislation and a legitimate legislative purpose.” Beatie, 123 F.3d at 711. Appellant has not carried this burden. Consequently, in light of the legislature’s view of the danger posed 5
    6. by nunchakus, we find that the prohibition against the possession of nunchakus created by N.Y. Penal Law § 265.01(1) is supported by a rational basis. We have considered Appellant’s remaining arguments and find them to be without merit. Accordingly, for the foregoing reasons, the judgment of the district court is hereby AFFIRMED. Appellant’s pending motions to strike defendant Kathleen Rice’s brief and material in her July 28, 2008 Rule 28(j) letter are hereby DENIED. 6
    7. 06-4996-cv Ricci v. DeStafano UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT August Term, 2007 (Argued: December 10, 2007 Decided: June 9, 2008) Docket No. 06-4996-cv FRANK RICCI, MICHAEL BLATCHLEY, GREG BOIVIN, GARY CARBONE, MICHAEL CHRISTOFORO, RYAN DIVITO, STEVEN DURAND, WILLIAM GAMBARDELLA, BRIAN JOOSS, JAMES KOTTAGE, MATTHEW MARCARELLI, THOMAS J. MICHAELS, SEAN PATTON, CHRISTOPHER PARKER, EDWARD RIORDAN, KEVIN ROXBEE, TIMOTHY SCANLON, BENJAMIN VARGAS, JOHN VENDETTO AND MARK VENDETTO, Plaintiffs-Appellants, -v- JOHN DESTEFANO, KAREN DUBOIS-WALTON, THOMAS UDE JR., TINA BURGETT, BOISE KIMBER, MALCOM WEBER, ZELMA TIRADO AND CITY OF NEW HAVEN, Defendants-Appellees. Before: POOLER, SACK and SOTOMAYOR, Circuit Judges. AFFIRMED.
    8. KAREN LEE TORRE, Attorney, New Haven, CT, for Plaintiffs-Appellants. RICHARD A. ROBERTS, Attorney, Cheshire, CT (Nicole C. Chomiak, Stacey L. Pitcher, and Todd J. Richardson, on the brief), for Defendants-Appellees. PER CURIAM: We withdraw our Summary Order of February 15, 2008. Ricci v. DeStefano, 2008 U.S. App. LEXIS 3293, 2008 WL 410436 (2d Cir. Feb. 15, 2008). Plaintiffs appeal from a judgment of the United States District Court for the District of Connecticut (Arterton, J.) granting the defendants’ motion for summary judgment on all counts. We affirm, for the reasons stated in the thorough, thoughtful, and well-reasoned opinion of the court below. Ricci v. DeStefano, 2006 U.S. Dist. LEXIS 73277, 2006 WL 2828419 (D. Conn., Sept. 28, 2006). In this case, the Civil Service Board found itself in the unfortunate position of having no good alternatives. We are not unsympathetic to the plaintiffs’ expression of frustration. Mr. Ricci, for example, who is dyslexic, made intensive efforts that appear to have resulted in his scoring highly on one of the exams, only to have it invalidated. But it simply does not follow that he has a viable Title VII claim. To the contrary, because the Board, in refusing to validate the exams, was simply trying to fulfill its obligations under Title VII when confronted with test results that had a disproportionate racial impact, its actions were protected. CONCLUSION The judgment of the district court is AFFIRMED. 2
    9. 06-4996-cv Ricci v. DeStefano 1 UNITED STATES COURT OF APPEALS 2 3 FOR THE SECOND CIRCUIT 4 5 August Term, 2007 6 7 (Argued: December 10, 2007 Decided: June 9, 2008 8 Order issued: June 12, 2008) 9 10 Docket No. 06-4996-cv 11 12 - - - - - - - - - - - - - - - - - - - -X 13 14 FRANK RICCI, MICHAEL BLATCHLEY, GREG 15 BOIVIN, GARY CARBONE, MICHAEL 16 CHRISTOFORO, RYAN DIVITO, STEVEN 17 DURAND, WILLIAM GAMBARDELLA, BRIAN 18 JOOSS, JAMES KOTTAGE, MATTHEW 19 MARCARELLI, THOMAS J. MICHAELS, SEAN 20 PATTON, CHRISTOPHER PARKER, EDWARD 21 RIORDAN, KEVIN ROXBEE, TIMOTHY SCANLON, 22 BENJAMIN VARGAS, JOHN VENDETTO AND MARK 23 VENDETTO, 24 25 Plaintiffs-Appellants, 26 27 - v.- 28 29 JOHN DESTEFANO, KAREN DUBOIS-WALTON, 30 THOMAS UDE JR., TINA BURGETT, BOI 31 KIMBER, MALCOM WEBER, ZELMA TIRADO AND 32 CITY OF NEW HAVEN, 33 34 Defendants-Appellees 35 36 - - - - - - - - - - -X 37 38 FOR PLAINTIFFS-APPELLANTS: KAREN LEE TORRE, New Haven, CT 39 40 FOR DEFENDANTS-APPELLEES: RICHARD A. ROBERTS {Nicole C.
    10. 1 Chomiak, Stacey L. Pitcher, and 2 Todd J. Richardson, 3 ~~~), Cheshire, CT 4 5 6 ORDER 7 After disposition of this appeal by summary order dated 8 February 15, 2008, an active judge of Court requested a 9 poll on whether to rehear the case in banco A poll on 10 whether to rehear case in banc was conducted among the 11 active judges of the Cou After the poll was concluded, 12 on June 9, 2008, the original three-judge panel withdrew the 13 summary order and filed a per curiam opinion; no subsequent 14 poll has been requested. Because a majority of the 15 court's act judges voted to deny rehearing in banc, 16 rehearing is hereby DENIED. 17 Judges Calabresi, Straub, Pooler, Sack, Sotomayor, 18 Katzmann, and B.D. ker concur in the denial of rehearing 19 in banco Chief Judge Jacobs and Judges Cabranes, Raggi, 20 Wesley, Hall and vingston dissent from t denial of 21 rehearing in banco 22 With this order, Judge Katzmann is filing a 23 concurring opinion, in which Judges Pooler, Sack, Sotomayor 24 and B.D. Parker joins; Judge B.D. Parker is filing a 25 concurring opinion, in which Judges Calabresi, Pooler, Sack 2
    11. 1 and Sotomayor join; and Judge Cabranes is filing a 2 dissenting opinion, in which Chief Judge Jacobs and Judges 3 Raggi, Wesley, Hall and Judge vingston join. 4 Other opinions may be filed with respect to this case, 5 concurring or dissenting in the denial of in bane review. 3
    12. KATZMANN, Circuit Judge, with whom Judge POOLER, Judge SACK, Judge SOTOMAYOR, and Judge B.D. PARKERjoin, concurring in the denial of rehearing en banc: I concur in the denial ofrehearing en bane, consistent with our Circuit's longstanding tradition of general deference to panel adjudication a tradition which holds whether or not the judges of the Court agree with the panel's disposition of the matter before it. Throughout our history, we have proceeded to a full hearing en banc only in rare and exceptional circumstances. See Wilfred Feinberg, Unique Customs and Practices o/The Second Circuit, 14 Hofstra L. Rev. 297, 311-12 (1986). The Supreme Court now has before it a petition for certiorari in this case, which I recognize presents difficult issues. As the Supreme Court de~ides whether to grant certiorari, it has for its review the district court's opinion, the panel's per curiam opinion, and opinions concurring with and dissenting from the decision denying rehearing en bane. The issues are therefore sharply defined for the Supreme Court's consideration of whether to grant certiorari.
    13. BARRINGTON D. PARKER. Circuit Judge. with whom Judge CALABRESI. Judge POOLER. Judge SACK, and Judge SOTOMAYOR join. concurring in the denial of rehearing en bane: At the heart of the dissent from the denial of rehearing en bane is the assertion that there was no Supreme Court or circuit law to guide this district court. or future district courts faced with similar claims. I disagree. The district court correctly observed that this case was unusual. Nonetheless. the district court also recognized that there was controlling authority in our decisions-among them. Hayden v. County ofNassau. 180 F.3d 42 (2d Cir. 1999) and Bushey v. N. Y. State Civil Servo Comm 'n, 733 F.2d 220 (2d Cir. 1984). cert. denied, 469 U.S. 1117 (1985). These cases clearly establish for the circuit that a public employer, faced with a prima facie case of disparate-impact liability under Title VII, does not violate Title VII or the Equal Protection Clause by taking facially neutral, albeit race-conscious, actions to avoid such liability. Insofar as the dissent suggests that the plaintiffs produced evidence of a racial classification or the imposition of a quota, I think it entirely mistaken. Although the City acted out of a concern that certifying the exam results would have an adverse impact on minority candidates-and although, as the panel noted in its decision, the result was understandably frustrating for applicants who passed the test-the City's response, to decline to certify any of the exams, was facially race-neutral. The City did not classify or confer any actual benefit on applicants on the basis of race. The dissent's citations to Adarand Constructors, Inc. v. Pena, 515 U.S. 200(1995), and CityofRichmondv. J.A. Croson Co., 488 U.S. 469 (1989), are 1
    14. therefore inapposite.! See Hayden, 180 F.3d at 49 (distinguishing those cases as "concerned with select affinnative action tools, such as quota systems, set-aside programs, and differential scoring cutoffs, which utilize express racial classifications and which prevent non-minorities from competing for specific slots or contracts."). Because there was no racial classification, the plaintiffs bore the burden of persuasion on the issue of discriminatory purpose. Jana-Rock Constr., Inc. v. N. Y State Dep 't ofEcon. Dev., 438 F.3d 195,204 (2d Cir. 2006). Here, however, there was no evidence of a discriminatory purpose; according to the record evidence, the City was motivated by a desire to comply with, and avoid liability under, Title VII and its implementing regulations. See Bushey, 733 F.2d at 226 ("It is settled that voluntary compliance is a preferred means of achieving Title VII's goal of eliminating employment discrimination." (internal quotation marks and alteration omitted)); see also Hayden, 180 F.3d at 51 ("A desire to reduce the adverse impact on [minority] applicants ... is not analogous to an intent to discriminate against non-minority candidates."). I think the dissent also quite unfairly caricatures the district court's evaluation of the plaintiffs' Title VII claim: "Under the District Court's rationale, it appears that any race-based employment decision undertaken to avoid a threatened or perceived Title VII lawsuit is itself I It may be worth noting that the Croson Court based its decision partly on the fact that "[t]here [was] nothing approaching a prima facie case of a constitutional or statutory violation by anyone in the Richmond construction industry." Croson, 488 U.S. at 500. Here, by contrast, the City was faced with a prima facie case of a violation of Title VII. See Gulino v. N. Y State Educ. Dep't, 460 F.3d 361,382 (2d Cir. 2006) (defining prima facie case of disparate-impact liability under Title VII); Robinson v. Metro-North Commuter R.R. Co., 267 F.3d 147, 160 (2d Cir. 2001) (same); see also 42 U.S.c. § 2000e-2(k) (codifying the disparate-impact theory ofliability and legislatively overruling Wards Cove Packing Co. v. Atonio, 490 U.S. 642, 659 (1989)). 2
    15. immune from scrutiny under Title VII." This is simply not the case. Prior to reaching its conclusion, the district court assessed whether the examination results demonstrated a statistically disproportionate adverse racial impact under the EEOC Guidelines and whether the City had presented evidence to support its belief that less discriminatory alternatives to this particular test existed. This analysis shows that, contrary to the dissent's suggestion, the district court did not rubber stamp the City's proffered non-discriminatory reason for not certifying the exam results. Moreover, I hardly think that in order to decline to certify the exam results, the City was required to prove, through a validation study or some other means, that its own tests were not "job related for the position in question and consistent with business necessity," 42 U.S.C. § 2000e-2(k)(I)(A)(i) (defining affirmative defense to prima/acie case of disparate impact violation). In fact, our case law explicitly rejects that proposition. See Bushey, 733 F.2d at 226 (disagreeing with the assertion that "before adopting remedial measures" the employer must "prove that [the] prima face case [of a disparate-impact Title VII violation] was not rebuttable through job-related explanations"). I also disagree with the dissent's view that en banc review is warranted because the district court analyzed the plaintiffs claims using the McDonnell Douglas pretext test rather than the Price Waterhouse mixed-motive test. See Price Waterhouse v. Hopkins, 490 U.S. 228 (1989); McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). As the dissent is well aware, the plaintiffs did not argue the mixed-motive theory; a non-party raised it in an amicus brief. "Although an amicus brief can be helpful in elaborating issues properly presented by the parties, 3
    16. it is normally not a method for injecting new issues into an appeal, at least in cases where the parties are competently represented by counsel." Universal City Studios, Inc. v. Corley, 273 F.3d 429,445 (2d Cir. 2001); see also Bano v. Union Carbide Corp., 273 F.3d 120, 127 n.5 (2d Cir. 2001) (same). Finally, the dissent suggests that the panel's per curiam opinion inappropriately adopted the reasoning set forth in the district court's opinion, one that the panel recognized was "thorough, thoughtful, and well-reasoned." The adherence of a Court of Appeals to the decision and reasoning of a district court is anything but novel. In fact, the practice pre-dates the formal establishment of this Court in 1891 by at least fifty years. United States v. Libellants & Claimants ofthe Schooner Amistad, 40 U.S. 518,590 (1841) ("The Circuit Court, by a mere pro forma decree, affirmed the decree of the [Connecticut] District Court .... And from that decree the present appeal has been brought to this Court."). This Court has followed this practice on numerous occasions in appeals covering myriad issues. See, e.g., In re Bankers Trust Co., 450 F.3d 121, 123 (2d Cir. 2006) (per curiam); Murphy ex rei. Estate ofPayne v. United States, 427 F.3d 158,159 (2d Cir. 2005) (per curiam); In re Red Dot Scenic, Inc., 351 F.3d 57, 58 (2d Cir. 2003) (per curiam); United States v. Gluzman, 154 F.3d 49,50 (2d Cir. 1998); Trans World Airlines, Inc. v. Sinicropi, 84 F.3d 116, 116 (2d Cir.) (per curiam), cert. denied, 519 U.S. 949 (1996). The plaintiffs were entitled to a careful and thoughtful review of their claims. The panel decided that the district court had given them just that, and thus adopted the district court's reasoning in its per curiam opinion. Nothing more is required. 4
    17. JOSE A. CABRANES, CircuitJudge, with whom ChiefJudge JACOBS, Judge RAGGI, Judge WESLEY, Judge HALL, and Judge LIVINGSTON join, dissenting: This appeal raises important questions of fIrst impression in our Circuit-and indeed, in the nation-regarding the application of the Fourteenth Amendment's Equal Protection Clause and Title VII's prohibition on discriminatory employment practices. At its core, this case presents a straight- forward question: Maya municipal employer disregard the results of a qualifying examination, which was carefully constructed to ensure race-neutrality, on the ground that the results of that examination yielded too many qualified applicants of one race and not enough of another? In a path-breaking opinion, which is nevertheless unpublished, the District Court answered this question in the affirmative, dismissing the case on summary judgment. A panel of this Court affirmed in a summary order containing a single substantive paragraph. Ricci v. DeStifano, No. 06-4996-cv (2d Cir. Feb. 15, 2008).1 Three days prior to the filing of this opinion, the panel withdrew its summary order and filed a per CIInam opinion adopting hI toto the reasoning of the District Court, thereby making the District Court's opinion the law of the Circuit. See Ricci v. DeStefimo, _ F.3d _ (2d Cir. 2008). The use of per CIInam opinions of this sort, adopting in full the reasoning of a district court without further elaboration, is normally reserved for cases that present straight-forward questions that do not require explanation or elaboration by the Court of Appeals. The questions raised in this appeal cannot be classified as such, as they are indisputably complex and far from well-settled. These questions include: Does the Equal Protection Clause prohibit a municipal employer from discarding examination results on the ground that "too many" applicants of one race received high scores and in the hope that a future test would yield more high-scoring applicants of other races? Does such a 1 Reproduced as .-ppendix A. 1
    18. practice constitute an unconstitutional racial quota or set-aside? Should the burden-shifting framework applicable to claims of pretextual discrimination ever apply to a claim of explicit race-based discrimination in violation of Title VII? If a municipal employer claims that a race-based action was undertaken in order to comply with Title VII, what showing must the employer make to substantiate that claim? Presented with an opportunity to address en bane questions of such "exceptional importance," Fed. R. App. P. 35(a)(2), a majority of this Court voted to avoid doing so. I respectfully dissent from that decision, without expressing a view on the merits of the questions presented by this appeal, in the hope that the Supreme Court will resolve the issues of great significance raised by this case. BACKGROUND In late 2003, 118 applicants took a written and oral examination administered by the New Haven Fire Department ("NHFD") for promotion to the ranks of Captain and Lieutenant. Forty-one applicants took the Captain examination, of whom twenty-five were white, eight black, and eight Hispanic. Based on the examination results and New Haven's protocol for civil service promotions, it appeared, at the time that the tests were scored, that "no blacks and at most two Hispanics would be eligible for promotion" to Captain. Ricci v. DeStefano, No. 04cvll09, at 3 (D. Conn. Sept. 28,2006).2 Vith respect to the Lieutenant examination, the racial composition of the seventy-seven applicants was as follows: forty-three whites, nineteen blacks, and fifteen Hispanics. The examination results indicated that no blacks or Hispanics would be promoted to the rank of Lieutenant. Between January and March 2004, the New Haven Civil Service Board ("CSB") held hearings to determine whether to certify the examination results and confer promotions according to those results. Despite the substantial efforts undertaken by the examination designer to ensure that it would be race-neutral, the City of New Haven 2 Reproduced as .,-ppendix B. 2
    19. (the "City") frankly stated its fear that, if the results were certified, it would face an employment discrimination lawsuit from non-white applicants who were not promoted. The CSB did not certify the examination results, and no promotions were made. Eighteen candidates-seventeen whites and one Hispanic-brought an action in the U.S. District Court for the District of Connecticut. They alleged in their complaint that the City and several municipal officials-acting in violation of Ticle VII of the Civil Rights Act of 1964,42 U.S.c. § 2000e et seq., the Equal Protection Clause of the Fourteenth Amendment to the U.S. Constitution, and other provisions of federal and state law-disregarded the results of two promotional examinations that produced "too many" eligible white candidates and "too few" eligible non-white candidates. On cross- motions for summary judgment, the District Court (Janet Bond Arterton, Judge) granted defendants' motion for summary judgment, denied plaintiffs' motion, and directed the Clerk of Court to close the case. In a forty-eight page opinion, the District Court observed that (1) "[P]laintiffs' evidence-and defendants' own arguments-show that the City's reasons for advocating non-certification [of the examination results] were related to the racial distribution of the results" and (2) "[a] jury could infer that the defendants were motivated by a concern that too many whites and not enough minorities would be promoted were the [eligibility] lists to be certified." Ricci, No. 04cv1109, at 20-21. The District Court recognized the exceptional circumstances presented by the case, noting that it "presents the opposite scenario of the usual challenge to an employment or promotional examination, as plaintiffs attack not the use of allegedly racially discriminatory exam results, but defendants' reason for their reftsal to use the results." ld at 22. Applying the burden-shifting framework set forth in McDonnell Douglas Corp. v. Gree1l, 411 U.S. 792 (1973), the District Court held that "[d]efendants' motivation to avoid making promotions based on a test with a racially disparate impact, even in a 3
    20. political context, does not, as a matter of law, constitute discriminatory intent, and therefore such evidence is insufficient for plaintiffs to prevail on their Title VII claim." Ricci, No. 04cvll 09, at 39-40 (footnote omitted). The District Court further concluded that defendants had not violated plaintiffs' rights under the Equal Protection Clause by, as plaintiffs alleged, "employing a race-based classification system for promotion or, alternatively, by applying facially neutral promotion criteria in a racially discriminatory manner." Id. at 40, 44. Although it is not disputed that the decision to discard the examination results was based on racial considerations, the District Court determined as a matter of law that no racial discrimination had occurred "because [all ofj the test results were discarded and nobody was promoted," id. at 42, and because "[n]othing in the record in this case suggests that the City defendants or CSB acted 'because of discriminatory animus toward plaintiffs or other non-minority applicants for promotion," 11. at 43. The District Court also rejected plaintiffs' civil rights conspiracy and First Amendment claims and declined supplemental jurisdiction over a state law tort claim. On appeal, the parties submitted briefs of eighty-six pages each and a six-volume joint appendi.x of over 1,800 pages; plaintiffs' reply brief was thirty-two pages long. Two amici briefs were ftled and oral argument, on December 10,2007, lasted over an hour (an unusually long argument in the practice of our Circuit). More than two months after oral argument, on February 15, 2008, the panel affirmed the District Court's ruling in a summary order containing a single substantive paragraph. The operative portion of the summary order read as follows: We affirm, substantially for the reasons stated in the thorough, thoughtful, and well-reasoned opinion of the court below. In this case, the Civil Service Board found itself in the unfortunate position of having no good alternatives. We are not unsympathetic to the plaintiffs' expression of frustration. Mr. Ricci, for example, who is dyslexic, made intensive efforts that appear to have resulted in his scoring highly on one of the exams, only to have it invalidated. But it simply does not follow that he has a viable Title VII claim. To the contrary, because the Board, in refusing to validate the exams, was simply trying to fulfill its obligations under Title VII 4
    21. when confronted with test results that had a disproportionate racial impact, its actions were protected. The judgment of the district court is AFFIRl1ED. See App. A. Four months later, and three days prior to the publication of this opinion, the panel withdrew its summary order and published a per curiam opinion that contained the same operative text as the summary order, with the addition of a citation to the District Court's opinion in the Xlestlaw and LexisNexis databases. This per cunam opinion adopted in toto the reasoning of the District Court, without further elaboration or substantive comment, and thereby converted a lengthy, unpublished district court opinion, grappling with significant constitutional and statutory claims of first impression, into the law of this Circuit. It did so, moreover, in an opinion that lacks a clear statement of either the claims raised by the plaintiffs or the issues on appeal. Indeed, the opinion contains no reference whatsoever to the constitutional claims at the core of this case, and a casual reader of the opinion could be excused for wondering whether a learning disability played at least as much a role in this case as the alleged racial discrimination. This perfunctory disposition rests uneasily vith the weighty issues presented by this appeal. 3 Prior to the entry of the per curiam opinion and in light of the "question[s] of exceptional importance," Fed. R. App. P. 35(a)(2), raised in this appeal, the Court considered a motion for en bam: reVIew. A majority of this Court declined to take up the appeal. DISCUSSION 3 Judge Parker's observation that "[t]he adherence of a Court of Appeals to the decision and reasoning of a district court is anything but novel" cannot be gainsaid. In appropriate cases, such a disposition is entirely unobjectionable. X'here significant questions of unsettled law are raised on appeal, however, a failure to address those questions--or even recognize their existence-should not be the approved modus operandi of the U.S. Court of Appeals. 5
    22. The core issue presented by this case-the scope of a municipal employer's authority to disregard examination results based solelY on the race of the successful applicants-is not addressed by any precedent of the Supreme Court or our Circuit. Plaintiffs alleged that the City's actions violated, inter alia, their rights under the Equal Protection Clause and Title VII. The District Court disagreed, but did so without the benefit of pertinent guidance from a higher court. The questions raised by the instant appeal clearly merit further review. 4 A. The Equal Protection Clause Plaintiffs claim that the City's decision to discard the examination results was race-based discrimination in violation of the Equal Protection Clause because it was undertaken solely to reduce the number of high-scoring white applicants and increase the number of eligible non-white candidates. Defendants contend that their decision, though race-based, was necessary because compliance with federal anti-discrimination laws required them to reduce the number of eligible white candidates. See Ricci, No. 04cv1109, at 20-21; Appellee Br. at 15-20, 30-31. The Supreme Court has addressed a government entity's claim that race-based decisions were necessary to redress a racial imbalance in the closely analogous context of government contracts. In Ciry qfRichmond v. J. A. Croson Co., the Supreme Court held that: "[w]hile there is no doubt that the sorry history of both private and public discrimination in this country has contributed to a lack of opportunities for black entrepreneurs, this observation, standing alone, cannot justify a rigid racial quota in the awarding of public contracts ...." 488 U.S. 469, 499 (1989). The Court further observed that: [W]hen a legislative body chooses to employ a suspect classification, it cannot rest upon a generalized assertion as to the classification's relevance to its goals. A governmental actor cannot render race a legitimate proxy for a particular condition merely by declaring that the condition exists. The history of racial classifications in this country suggests that blind judicial 4 Indeed, in his opinion concurring in the denial of en bane review, Judge Katzmann recognizes as much, observing that this appeal "presents difficult issues." 6
    23. deference to legislative or executive pronouncements of necessity has no place in equal protection analysis. Id. at 500-01 (internal citations omitted). More recently, the Supreme Court has identified "three general propositions with respect to governmental racial classifications." Adarand Constmdors, Inc. v. Pena, 515 U.S. 200, 223 (1995). They are: First, skepticism: Any preference based on racial or ethnic criteria must necessarily receive a most searching examination. Second, consistency: The standard of review under the Equal Protection Clause is not dependent on the race of those burdened or benefited by a particular classification, i.e., all racial classifications reviewable under the Equal Protection Clause must be strictly scrutinized. And third, congruence: Equal protection analysis in the Fifth Amendment area is the same as that under the Fourteenth Amendment. Taken together, these three propositions lead to the conclusion that at!} person, of whatever race, has the right to demand that aI!} governmental actor su,?ject to the Constitutionjustifj af!) racial classification su,?jecting that person to unequal treatment under the strictestjudicial scmtif!). Id. at 223-24 (quotation marks, internal citations, and brackets omitted) (emphasis added). Whether the District Court's judgment comports with these propositions is a question of immense importance that is not addressed in the panel's per curiam opinion. The District Court's ruling rested in part on the premise that "where a test is administered and scored in the same manner for all applicants, plaintiffs cannot make out a claim that the exam was a facially neutral test used in a discriminatory manner." Ricci, No. 04cv1109, at 42. Neutral administration and scoring--even against the backdrop of race-conscious design of an employment examination, see Hqyden v. Coun!} ofNassau, 180 F.3d 42, 50 (2d Cir. 1999)-is one thing. But neutral administration and scoring that is followed by race-based treatment of examination results is surely something else entirely. Where, as here, examination results are disregarded on the ground that too many candidates of one race qualified for promotion on the basis of those results, the fact of neutral administration and scoring may not necessarily immunize defendants from the claims of civil rights violations brought by plaintiffs. If it did, municipal employers could reject the results of an employment examination whenever those results 7
    24. failed to yield a desired racial outcome-i.e., failed to satisfy a racial quota. Croson and Adarand est.'lblish that racial quotas are impermissible under the Constitution absent specific findings of past discrimination that are not in the record here. Whether Croson and Adaraltd preclude the actions challenged in this case, or whether Hqydm can fairly be read to compel judgment in defendants' favor as a matter of law, are questions that admit no easy answer. As such, they require the careful analysis of a full opinion of an appellate court, not abbreviated disposition. The District Court held that the test was administered in the same manner for all applicants because the City discarded the scores of all exam-takers. Insofar as the decision to not certify the results was based on the race of the high-scoring applicants, however, it is arguable that the deck was stacked against applicants of that race: If too many white applicants obtained high scores, the City stood ready to nullify the results in the hope that non-white applicants would score relatively higher on a subsequent examination. 5 Whether such action amounts to an impermissible racial quota was not addressed in the District Court's opinion or in the decisions issued by the panel, which do not even note that this action arises under the Equal Protection Clause of the Fourteenth Amendment. See App. A (summary order of Feb. 15, 2008); per curiam opinion filed on June 9, 2008. The District Court also held as a matter oflaw that none of the City's reasons for disregarding the examination results amounted to intentional discrimination because the City had acted based on the following concerns: that the test had a statistically adverse impact on African-American and Hispanic examinees; that promoting off of this list would undermine their goal of diversity in the Fire Department and would fail to develop managerial role models for aspiring firefighters; that it would sulyect the City to public criticism; and that it vould likely subject the City to Title VII lawsuitsfrom minority applicants that, for political reasons, the City did 110t want to difend. 5 In his opinion concurring in the denial of en bane review, Judge Parker concludes that the City "did nor ... confer any actual benefit on applicants on the basis of race." It is, at the very least, an open question whether discarding examination results on the basis of race so that members of certain races could have a "second chance" to compete constitutes the conferral or denial of a benefit on the basis of race. 8
    25. Ricci, No. 04cv1109, at 43 (emphasis added). Leaving aside the propriety of the District Court's evaluation, on summary judgment, of the City's motives-a quintessential question of fact, see, e.g., Hunt v. Cromartie, 526 U.S. 541, 552-53 (1999)-it is at least arguable that the District Court failed to subject the City's justifications to the "most searching examination" prescribed by the Adarand Court. See 515 U.S. at 223. The record suggests that the District Court took the City's justifications at face value, as it appears Judge Parker has done in his opinion concurring in the denial of en banc review. An appellate court ought to consider whether this level of scrutiny is consistent with Justice O'Connor's observation, in Croson, that "[a]bsent searching judicial inquiry into the justification for such race-based measures, there is simply no way of determining what classifications are 'benign' or 'remedial' and what classifications are in fact motivated by illegitimate notions of racial inferiority or simple racial politics." 488 U.S. at 493 (plurality opinion). Justice O'Connor's cautionary note on "racial politics" is particularly relevant in light of the District Court's observation that fear of "public criticism" and other "political reasons" factored into the City's decision. Whether the District Court subjected the City's claims to sufficient scrutiny-and whether the City's claims could have withstood such scrutiny-are vital "question[s] of exceptional importance," Fed. R. App. P. 35(a)(2), that warrant further review, both for the proper resolution of this case and for the guidance of other courts and municipalities in future cases. B. Title VII Plaintiffs urge that the City's race-based action also violated Title VII's prohibition of employment discrimination. See 42 U.S.c. § 2000e-2. The District Court dismissed plaintiffs' Title VII claim by applying the three-step burden-shifting framework for adjudicating claims of pretextual discrimination established by McDonnell Douglas. The dismissal of the Title VII claim on this basis raises two significant questions: (1) whether the McDonnell Douglas test for prete-"'dual discrimination should be 9
    26. applied to claims of discrimination that is overt, and (2) whether a race-based decision allegedly made to avoid perceived liability for racial discrimination is exempt from scrutiny under Title VII and, if not, what quantum of proof is required to substantiate such a defense. Courts generally apply McDonnell Douglas in cases where plaintiffs "presentD no direct evidence of discriminatory treatment." Woodman v. WWOR-TV, Inc., 411 F.3d 69, 76 (2d Cir. 2005); see also Graves tJ. Finch Pruyn & Co. Inc, 457 F.3d 181, 187 (2d Cir. 2006). "If a plaintiff can convince the trier of fact that an impermissible criterion in fact entered into the employment decision, [however,] a somewhat different analysis takes place." 7)ler 11. Bethlehem Steel Corp., 958 F.2d 1176, 1181 (2d Cir. 1992). In that kind of "mixed-motive" case, the burden-shifting analysis set forth in Price Waterhouse v. Hopkins, 490 u.s. 228 (1989), governs the claim. Under this framework, the plaintiff ... must focus his proof directly at the question of discrimination and prove that an illegitimate factor had a motivating or substantial role in the employment decision. If the plaintiff convinces the factfinder that the illegitimate factor played such a role, the employee has proved that the decision was made at least in part because of the illegitimate factor. At this point the employee is entitled to succeed subject only to the employer's opportunity to prove its affIrmative defense; that is, that it would have reached the same decision as to the employee's employment even in the absence of the impermissible factor. 7)ler, 958 F.2d at 1181 (internal citations, quotation marks, and brackets omitted); see also Sista v. CDC IxiJ N. Am., I,IC., 445 F.3d 161, 173-74 (2d Cir. 2006); Raskin v. u::jatt Co., 125 F.3d 55,60-61 (2d Cir. 1997) ("Evidence potentially warranting a Price Waterhouse burden shift includes, inter alia, policy documents and evidence of statements or actions by decisionmakers that may be viewed as directly reflecting the alleged discriminatory attitude." (internal quotation marks omitted)). The Ricci plaintiffs offered evidence that an impermissible factor-their race-motivated defendants to discard the results of the employment examination. As the District Court itself candidly observed: "[P]laintiffs' evidence-and defendants' own arguments-show that the City's reasons for advocating non-certification [of the examination results] were related to the racial distribution of the 10
    27. results" and "[a] jury could infer that the defendants were motivated by a concern that too many whites and not enough minorities would be promoted were the [eligibility] lists to be certified." Rim, No. 04cvl109, at 20-21. The District Court's application of the McDonnell Douglas test for pretextual discrimination, its conclusion that plaintiffs cannot pass that test as a matter of law, and its failure to consider the possibility that defendants themselves might bear a burden of proof under the analysis set forth in Price Waterhouse, all raise serious concerns left unaddressed by the panel in its per a/riam opinion and by the full Court, which declined en banc review of the appeaL Assuming arguendo that a claim of overt racial discrimination is ever appropriately evaluated under the McDonnell Douglas framework for pretextual discrimination, the application of that framework to this case required a "reversal" of the usual roles assigned to plaintiffs and defendants in such cases. As the District Court observed: [T]his case presents the opposite scenario of the usual challenge to an employment or promotional examination. . .. Ordinarily, as contemplated by the statute, the "complaining party" bears the burden of proving a disparate impact, and the "respondent" bears the burden of "demonstrat[ing] that the challenged practice is job related for the position in question and consistent with business necessity," or, alternatively, the "complaining party" may prevail by showing that an alternative employment practice with less disparate impact existed and that the respondent failed to utilize it. Here, the roles of the parties are in essence reversed, with the defendants, normally reflecting a "respondent" role in the Title VII disparate impact analysis, contending that use of the promotional exams, if they had been certified, would have had an adverse impact, and the plaintiffs, normally the "complaining party," arguing that the test results were sufficiently job-related to be defensible under the law. Ricci, No. 04cv11 09, at 22 (alteration in original) (internal citations omitted). Unlike the Court of Appeals, the District Court answered the exceptional, and difficult, questions presented, concluding that the City's expressed desire to comply with "the letter and the spirit of Title VII," id. at 22, constituted a non-pretextual reason for its action, id. at 39-40, and therefore no employment discrimination occurred. Under the District Court's rationale, it appears that any race-based employment decision undertaken to avoid a threatened or perceived Title VII lawsuit is immune from 11
    28. scrutiny under Title VII." This appears to be so, moreover, regardless of whether the employer has made any efforts to verify that a valid basis exists for the putative Title VII suit. Applying this rationale, the District Court concluded that the City, which had not conducted any study to determine whether latent racial bias had tainted the results of the promotion examination, could discard the results of the examination, id. at 25-26, in the hope that a future test would yield a preferable racial distribution, id. at 36. Regardless of how one may decide the matter, there can be little doubt that a decision of this Court thus sanctioning race-based employment decisions in the name of compliance with Title VII raises novel questions that are indisputably of "exceptional importance." CONCLUSION It is arguable that when an appeal raising novel questions of constitutional and statutory law is resolved by an opinion that tersely adopts the reasoning of a lower court-and does so without further legal analysis or even a full statement of the questions raised on appeal-those questions are insulated from further judicial review. It is arguable also that the decision of this Court to deny C11 banc review of this appeal supports that view. What is not arguable, however, is the fact that this Court has failed to grapple with the questions of exceptional importance raised in this appeal. If the Ricci plaintiffs are to obtain such an opinion from a reviewing court, they must now look to the Supreme Court. Their claims are worthy of that review. 6 Despite Judge Parker's assertion to the contrary, I do not charge the District Court with applying a "rubber stamp" to the Ciry's race-based decisions. I simply question whether the Court of A.ppeals has set forth a standard for determining when such action is acceptable and when it violates the constitutional and statutory rights of citizens. If any fault is to be levied in this regard, it falls on our Court for failing to provide guidance, and not on the District Court which endeavored to confront this question of exceptional importance. 12
    29. Appendix A
    30. 06-4996-cv Ricci v. DeStefano 1 2 UNITED STATES COURT OF APPEALS 3 FOR THE SECOND CIRCUIT 4 5 SUMMARY ORDER 6 7 RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION 8 TO SUMMARY ORDERS FILED AFTER JANUARY 1,2007, IS PERMITTED AND IS 9 GOVERNED BY THIS COURT'S LOCAL RULE 32.1 AND FEDERAL RULE OF APPELLATE 10 PROCEDURE 32.1. IN A BRIEF OR OTHER PAPER IN WHICH A LITIGANT CITES A 11 SUMMARY ORDER, IN EACH PARAGRAPH IN WHICH A CITATION APPEARS, AT LEAST 12 ONE CITATION MUST EITHER BE TO THE FEDERAL APPENDIX OR BE ACCOMPANIED 13 BY THE NOTATION: "(SUMMARY ORDER)." A PARTY CITING A SUMMARY ORDER 14 MUST SERVE A COpy OF THAT SUMMARY ORDER TOGETHER WITH THE PAPER IN 15 WHICH THE SUMMARY ORDER IS CITED ON ANY PARTY NOT REPRESENTED BY 16 COUNSEL UNLESS THE SUMMARY ORDER IS AVAILABLE IN AN ELECTRONIC 17 DATABASE WHICH IS PUBLICLY ACCESSIBLE WITHOUT PA YMENT OF FEE (SUCH AS 18 THE DATABASE AVAILABLE AT HTTP://WWW.CA2.USCOURTS.GOV I). IF NO COpy IS 19 SERVED BY REASON OF THE AVAILABILITY OF THE ORDER ON SUCH A DATABASE, 20 THE CITATION MUST INCLUDE REFERENCE TO THAT DATABASE AND THE DOCKET 21 NUMBER OF THE CASE IN WHICH THE ORDER WAS ENTERED. 22 23 24 At a stated Term of the United States Court of Appeals for the Second Circuit, held at the 25 Daniel Patrick Moynihan United States Courthouse, 500 Pearl Street, in the City of New York, 26 on the 15 th day of February, two thousand and eight. 27 28 Present: ROSEMARY S. POOLER, 29 ROBERT D. SACK, 30 SONIA SOTOMAYOR, 31 Circuit Judges, 32 33 34 FRANK RICCI, MICHAEL BLATCHLEY, GREG BOIVIN, GARY CARBONE, MICHAEL 35 CHRISTOFORO, RYAN DIVITO, STEVEN DURAND, WILLIAM GAMBARDELLA, 36 BRIAN JOOSS, JAMES KOTT AGE, MATTHEW MARCARELLI, THOMAS J. MICHAELS, 37 SEAN PATTON, CHRISTOPHER PARKER, EDWARD RIORDAN, KEVIN ROXBEE, 38 TIMOTHY SCANLON, BENJAMIN VARGAS, JOHN VENDETTO AND MARK 39 VENDETTO, 40 41 Plaintiffs-Appellants, 42 43 -v- (06-4996-cv) 44 45 JOHN DESTEFANO, KAREN DUBOIS-WALTON, THOMAS UDE JR., TINA BURGETT, 46 BOISE KIMBER, MALCOM WEBER, ZELMA TIRADO AND CITY OF NEW HAVEN, 47 48 Defendants-Appellees. 49
    31. I Appearing for Plaintiffs-Appellants: Karen Lee Torre, New Haven, CT. 2 3 Appearing for Defendants-Appellants: Richard A. Roberts (Nicole C. Chomiak, 4 Stacey L. Pitcher, and Todd 1. Richardson 5 _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _~on:.:..:::.th.:.::e:...:b::.:.n.:.::·e::Jf), Cheshire, CT. 6 7 8 UPON CONSIDERATION WHEREOF, IT IS HEREBY ORDERED, ADJUDGED, 9 AND DECREED that the judgment of the distri~t court is AFFIRMED. 10 11 Plaintiffs appeal from a judgment of the United States District Court for the District of . 12 Connecticut (Arterton, J.) granting the defendants' motion for summary judgment on all counts. 13 14 We affirm, substantially for the reasons stated in the thorough, thoughtful, and well-reasoned 15 opinion of the court below. In this case, the Civil Service Board found itself in the unfortunate 16 position of having no good alternatives. We are not unsympathetic to the plaintiffs' expression 17 of frustration. Mr. Ricci, for example, who is dyslexic, made intensive efforts that appear to 18 have resulted in his scoring highly on one of the exams, only to have it invalidated. But it 19 simply does not follow that he has a viable Title VII claim. To the contrary, because the Board, 20 in refusing to validate the exams, was simply trying to fulfill its obligations under Title VII when 21 confronted with test results that had a disproportionate racial impact, its actions were protected. 22 23 The judgment of the district court is AFFIRMED. 24 25 26 FOR THE COURT: 27 Catherine O'Hagan Wolfe, Clerk 28 29 By:. _ 2
    32. Appendix B
    33. UNITED STATES DISTRICT COURT DISTRICT OF CONNECTICUT FRANK RICCI, et al., Plaintiffs, v. Civil No. 3:04cvll09 (JBA) JOHN DESTEFANO, et al., Defendants. RULING ON CROSS-MOTIONS FOR SUMMARY JUDGMENT [DOCS. ii 52, 60] In March 2004 the New Haven Civil Service Board (UCSB") refused to certify the results of two promotional exams for the positions of Lieutenant and Captain in the New Haven Fire Department. This lawsuit arises from the circumstances leading to that decision and its consequences. Plaintiffs are seventeen white candidates and one Hispanic candidate who took the promotional exams, on which they fared very well, but received no promotion because without the CSB's certification of the test results, the promotional process could not proceed. Defendants are the City of New Haven, Mayor John DeStefano, Chief Administrative Officer Karen Dubois-Walton, Corporation Counsel Thomas Ude, Director of Personnel Tina Burgett, and the two members of the CSB, Malcolm Weber and Zelma Tirado, who voted against certification. Plaintiffs assert that defendants' actions in voting or arguing against certification of the examination results violated their rights under Title VII of 1
    34. the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq., the Equal Protection Clause, the First Amendment, and 42 U.S.C. § 1985; plaintiffs also allege a common law claim of intentional infliction of emotional distress. The parties have cross-moved for summary judgment on the Title VII and Equal Protection claims, and defendants additionally move for summary judgment on plaintiffs' other claims. For the reasons that follow, defendants' motion for summary judgment [Doc. # 52] will be granted as to plaintiffs' federal claims; plaintiffs' cross-motion for summary judgment [Doc. # 60] will be denied; and the Court will decline jurisdiction over plaintiffs' state law claim. 1 I. Factual Background While the parties strenuously dispute the relevance and legal import of, and inferences to be drawn from, many aspects of this case, the underlying facts are largely undisputed. In November and December 2003, the New Haven Fire Department administered written and oral examinations for promotion to Lieutenant and Captain. The City's Department of Human Resources issued a Request for Proposal for these examinations; as a result of which I/O Solutions (IOS"), a seven-year-old Illinois company that specializes in entry-level and promotional examinations for lDefendants also moved to strike portions of plaintiffs' Local Rule 56(a)2 Statement, which motion was denied. See Ruling Denying Motion to Strike [Doc. # 130]. 2
    35. public safety (police and fire) departments, designed the examinations. Pl. Ex. IV(C) at 8. Under the contract between the City and the New Haven firefighters' union, the written exam result counted for 60% of an applicant's score and the oral exam for 40%. Those with a total score above 70% on the exam would pass. Forty-one applicants took the Captain exam, of whom 25 were white, 8 black, and 8 Hispanic. Twenty-two of those applicants passed, of whom 16 were white, 3 black, and 3 Hispanic. Pl. Ex. Vol. I, at 43. Given that there were 7 Captain vacancies in the department when the tests were administered, and that the "Rule of Three" in the City Charter mandates that a civil service position be filled from among the three individuals with the highest scores on the exam, it appeared at that time that no blacks and at most two Hispanics would be eligible for promotion, as the top 9 scorers included 7 whites and 2 Hispanics. 2 Seventy-seven applicants took the Lieutenant exam, of whom 43 were white, 19 black, and 15 Hispanic. Thirty-four passed, of whom 25 were white, 6,black and 3 Hispanic. Id. There were 8 vacancies, but because of the top 10 scorers were white, it appeared that no blacks or Hispanics would be promoted. 3 2Hispanics ranked 7, 8 and 13; blacks ranked 16, 19 and 22. Pl. Ex. Vol. I, at 43. 3Hispanics ranked 27, 28 and 31; blacks ranked 14, 15, 16, 20, 22, and 24. PI. Ex. Vol. I, 43. 3
    36. Certified promotional lists remain valid for two years. The CSB held five hearings between January and March 2004 on the issue of whether to certify the test results. The issue appears to have been raised by New Haven's Corporation Counsel, Thomas Ude. At the initial hearing on January 22, 2004, Mr. Ude characterized the exam results as ~a very significant disparate impact . . . that caused us to think this was something we should bring to you, the Civil Service Board, to evaluate and to be part of and to ultimately make a decision about the process." Pl. Ex. Vol. IV(A) at 32. While it is disputed whether Mr. Ude already had made up his mind to advise the CSB against certifying the results, his comments "emphasize [dl . that the case law does not require that the City find that the test is indefensible in order to take action that it believes is appropriate to remedy . . disparate impact from examination." Id. at 34-35. He advised that "federal law does not require that you [the CSB] make a finding that this test . . . was not job-related, which is another way of saying it wasn't fair. A test can be job-related and have a disparate impact on an ethnic group and still be rejected because there are less discriminatory alternatives for the selection process." Id. at 36. During the hearings, the tests results were not released by name, and therefore none of the firefighters knew where they had placed. The only information provided to the CSB and the public, 4
    37. including plaintiffs, was the scores by race and gender. Nonetheless, several firefighters, although they did not know where they had placed, spoke in favor of certifying the results. Plaintiff Frank Ricci stated that the questions on the test were drawn from "nationally recognized" books and New Haven's own Rules and Regulations and Standard Operating Procedures. Pl. Ex. Vol. 1V(A) at 88. He stated that he "studied 8 to 13 hours a day to prepare for this test and incurred over $1,000 in funds [sic] to study for this test," including purchasing the books and paying an acquaintance to read them on tape because he is dyslexic and learns better by listening. Other firefighters, who believed the tests were fair, ·also spoke in support of the certifying the results. See,~, Testimony of Michael Blatchley, id. at 75 ("[N]one of those questions were not in that study material. Everyone of those questions came from the material.") . During the first hearing, the CSB also took statements from several New Haven firefighters who complained that some of the questions were not relevant to knowledge or skills necessary for the positions (see, ~, Statement of James Watson, at 85 ("I think this test was unfair. We don't use ~ lot of things that were on that test" such as whether to park a firetruck facing "uptown" or "downtown"», or that the study materials were difficult to obtain (see Testimony of Gary Kinney, id. at 77 5
    38. (~The only books that most of us had in front of us in the fire houses were Essentials of Fire Fighting . . . . [T]hese books [on the syllabus] were never in the fire houses."». At the second hearing on February 5, Patrick Egan, president of the firefighters' union, urged the CSB to conduct a validation study to determine the job-relatedness of the test, referring generally, although not by name, to the EEOC's ~Uniform Guidelines of Employee Selection Procedures." Pl. Ex. Vol. IV(B) at 11-12. Plaintiffs' counsel in the present case also ~poke and urged certification. On the other side, Donald Day, a representative of the Northeast Region of the International Association of Black Professional Firefighters, argued against certification, stating that previous promotional examinations in 1996 and 1999 had black and Latino firefighters ranked sufficiently high to have a realistic opportunity for promotion, whereas ~there was something inherently wrong with this test" because minorities did not score as highly. Id. at 33-34. He suggested that the CSB speak with the director of the civil service in Bridgeport ~to find out what Bridgeport is doing different [sic] than New Haven," as they have more diversity in their firefighter ranks. rd. at 35. In particular, he stated that Bridgeport had "changed the relative weights" among the portions of the exam, such that the written test counts for 30% of the total score, the oral test for 65%, 6
    39. and seniority 5%. Id. at 36-37. Ronald Mackey, the Internal Affairs Officer for the Northeast Region of the International Association of Black Professional Firefighters, supported Patrick Egan's suggestion of obtaining a validation study, and also suggested that New Haven could "adjust the test" as Bridgeport had done, in order to "meet the criteria of having a certain amount of minorities get elevated to the rank of Lieutenant and Captain." Id. at 43-45. On February 11, 2004, the CSB heard from Chad Legel, Vice President of lOS, who was the "project manager" in charge of developing the exams at issue. He stated that lOS had prepared "both an entry-level exam and a physical ability test for the firefighter position" in New Haven, but had not previously prepared a New Haven promotional exam. Id. at 10. However, in recent years his company had worked with similarly-sized public safety departments with demographics similar to New Haven, including Lansing, Michigan, Orange County, Florida, and the North Miami Police Department, among others. Id. at 9. Legel described the way in which the test was developed. First, the company interviewed a random sample of current New Haven Fire Department Lieutenants, Captains and Battalion Chiefs to determine basic information concerning the structure of the department, the tasks required of individuals at each rank, and the materials the department generally utilizes for training. 7
    40. Based on the interviews, lOS developed a written job analysis questionnaire ("JAQ") that asked all incumbents in the positions of Lieutenant and Captain "to provide information about how important they feel a specific task, knowledge area, skill or ability is. " I d . at 17. The JAQ asked how important each task was to successful performance on the job and how frequently it was necessary to perform it. Importance and frequency were merged into a metric called "criticality or essentiality." Id. at 19. Tasks above a certain criticality threshold were designated for testing on the written and oral portions of the exam. In response to the question of whether he has generally found a difference between information tested in various departments "based on the racial content of the city and the force," Legel stated, "definitely no." rd. at 21. The one difference among the New Haven firefighters of similar rank that Legel noted was different levels of training in certain specialized fields such as hazardous materials; such variation "throws up a red flag" indicating that lOS should not ask "high- level questions about hazardous materials. " I d . at 22. Legal further stated that all the questions were firmly rooted in the study materials on the syllabus, which was distributed with the promotion applications. See Def. Ex. 16 ("Written Examination Reference List"). Once the test was completed, an "independent reviewer;" a Battalion Chief from the 8
    41. Cobb County, Georgia, Fire Department, "reviewed the written exam for content and fidelity to the source material." Pl. Ex. Vol. IV(B) at 24-25. Another independent reviewer, a retired Fire Chief from outside Connecticut, reviewed the oral exam questions. Id. at 26. lOS refrained from utilizing reviewers from Connecticut because the RFP had specified that examiners must come from outside Connecticut, due to concerns that utilizing internal personnel could potentially facilitate cheating on the test. Likewise, lOS selected the panelists for the oral examination panels from departments outside Connecticut, making an effort "to gain maximum diversity." Id. at 32. All but one panel had one African-American, one Hispanic and one white assessor, and a standby panel had two African-Americans and one white. Id. The assessors were trained on how to grade the oral exam scenarios consistently, utilizing checklists of desired criteria. Each panelist also held at least an equal rank (if not superior) to the position being tested, in order to be able to identify an answer that was good but not quite the best answer outlined in the checklist. at 33-34, 37. Legel concluded by "implor[ing] anyone that had . . . concerns [about disparate impact] to review the content of the exam. In my professional opinion, it's facially neutral." Id. at 49. 9
    42. Noelia Marcano, Chief Examiner for the City of-New Haven and Secretary to the CSB, explained the process by which the RFP was developed and lOS chosen. She further explained that the job applications for the Lieutenant and Captain positions contained a job description, employment application, and "the actual study list in final form," and that when questions arose concerning conflicting information in some of the study books, lOS sent a letter to all applicants that they would not be asked questions on material where the sources differed. Id. at 78. At the next hearing on March 11, 2004, the CSB heard from Christopher Hornick, Ph.D., an industrial/organizational psychologist from Texas who runs a consulting business in competition with IOS. 4 See Pl. Ex. Vol. IV(D} at 7, 12. Dr. Hornick stated that he had "not had time to study the test at length or in detail." at 13. However, he reviewed stati~tics provided by the City and concluded that "we're seeing relatively high adverse impact" from the lOS tests. Id. at 11. He opined that his company finds "significantly and dramatically less adverse impact in most of the test procedures that we 4Plaintiffs argue that Dr. Hornick's non-sworn, hearsay statement at the CSB hearing is inadmissible as non-disclosed expert evidence. Plaintiffs' argument is rejected because defendants proffer Dr. Hornick's not for the truth of his conclusion that the tests had a racially disparate impact, but to show that defendants had a good faith belief, based in part on Dr. Hornick's testimony, that such a disparate impact existed and justified the decision not to certify the exams. 10
    43. design." Id. at 12. He stated: Normally, whites outperform ethnic minorities on the majority of standardized testing procedures. That is, in , the case with the data that we've seen in New Haven. I'm a little surprised at how much adverse impact there is in these tests. And I hope at some point here we'll be talking in detail about that. But my conclusion is that we did have significant adverse impact. Some of it is fairly typical of what we've seen in other areas of the countries (sic) and other tests that people have developed. But in other ways it is somewhat worse than what we're typically seeing in the profession practiced by others. Id. at 11-12. Dr. Hornick acknowledged that he had not looked at specific statistics from previous promotional examinations in New Haven to compare their results with the 2003 exam results. Id. at 14. When asked about the reasons behind any possible disparate impact, Dr. Hornick answered, "I'm not sure that r can explain it," but suggested that perhaps the 60%/40% breakdown mandated by the collective bargaining agreement could be responsible, and further suggested that there were "perhaps different types of testing procedures that are much more valid in terms of identifying the best potential supervisors in your fire department." rd. at 15. He stated that based on his interviews with firefighters, "we know that" a written test is "not as valid as other procedures that exist." rd. at 16. He also suggested that "[b]y not having anyone from within the department review the items [on the test] you inevitably get things in there" that 11
    44. are not relevant to the specific department. rd. at 17-18. Finally, Dr. Hornick identified as an alternative to traditional written and oral testing processes ~an assessment center process, which is essentially an opportunity for candidates to demonstrate their knowledge of the . . . standard operating procedures, to demonstrate how they would address a particular problem as opposed to just verbally saying it or identifying the correct option on a written test. For example, there's concepts of situation judgment tests that can be developed and designed, customized within organizations that demonstrate dramatically less adverse impacts. . . " Id. at 22-23. At the same hearing, Vincent M. Lewis, a Fire Program Specialist for the u.S. Department of Homeland Security, and a retired career firefighter from Michigan, testified that he believed the test was appropriate. He stated that he had looked ~extensively at the Lieutenant's exam and a little less at the Captain's exam," and believed that the candidates ~should know that material." Id. at 34-35. His one comment was that ~a number of questions in the Lieutenant's exam dealt with issues that an apparatus driver needed to know," and a candidate who had not had such training would be disadvantaged on those questions. rd. at 34, 41. However, he generally ~felt the questions were relevant for both exams," and believed that the New Haven applicants were advantaged over examinees in other locations 12
    45. because they were instructed exactly which chapters from the study materials would .be on the tests. Id. at 36. He stated that he would not have changed anything about the way in which the tests were developed, and opined that any disparate impact could be due to a general pattern that ~usually whites outperform some of the minorities on testing,H or that ~more whites . . . take the exam. H Id. at 37-38. The last expert witness was Dr. Janet Helms, a professor of counseling psychology and the Director of the Institute for the Study and Promotion of Race and Culture at Boston College. Her area of expertise "is not with firefighters per se but is more in the general area of how race and culture influence test performance more generally.H Id. at 43. She did not examine the specific tests at issue. Id. at 55. However, she offered several potential explanations for racially disparate impact on the tests. First, "[w]e know for a fact that regardless of what kind of written test we give in this country that-we can just about predict how many people will pass who are members of under- represented groups. And your data are not that inconsistent with what predictions would say were the case. H Id. at 44 (emphasis supplied). Second, Dr. Helms suggested that because 67% of the respondents in the JAQ survey were white, the questions may have been skewed toward their job knowledge~ as "most of the literature on firefighters show that the different 13
    46. [racial. and gender] groups perform the job differently." Id. at 46. Relying on information she had read in newspaper accounts of the situation in New Haven, she stated that the difference in performance may have been due to differences in opportunities for training and "informal mentoring" available to mirtorities. Id. at 48. With respect to the oral exam, Dr. Helms suggested that people who are bilingual or "speak acc~nted speech" may elicit more negative reactions from evaluators. Id. at 49-50. As general concerns, Dr. Helms mentioned that test takers may score lower if they are expected not to perform well, or if tests focus on "traditional ways of doing the job and the test-taker, in fact, uses innovative approaches." rd. at 51. Additionally, she suggested that "removing" "socioeconomic status" from test scores "reduces the disparate impact to some extent." Id. at 57. At the final hearing on March 18, 2004, defendant Ude, the Corporation Counsel, strongly advocated against certifying the exam results. He concluded: "You have a choice. It is my opinion that promotions under our rules as a result of these tests would not be consistent with federal law, would not be consistent with the purposes of our.Civil Service Rules or our Charter, nor is it in the best interests of the firefighters and Lieutenants who took the exams." Pl. Ex. Vol. IV(E) at 15-16. As a primary reason not to certify the results, Ude argued that the "results of previous exams in this department and in other 14
    47. departments have not had this kind of a result, which is one of the reasons why these results were so startling when they came down. These results were different." Id. at 19. He argued that Dr. Hornick's statements to the CSB, standing alone, were "sufficient" reason not to certify, and advised the board "that it is the employer's burden to justify the use of the examination" if a Title VII suit were brought. Id. at 21. Defendant Walton spoke "on behalf of the Mayor" and also advocated discarding the test results, primarily because the eligibility list, when combined with the Rule of Three and the number of vacancies then available, would "create a situation in which African-Americans are excluded from promotional opportunity on both the Captain and Lieutenant positions and Latinos are excluded from promotional opportunity on the Lieutenant examination." Id. at 30. She questioned whether there were "other ways of making the selection," that would be l~s~ "discriminatory." Id. at 31-32. The board split two to twoS on the question of certifying each exam, see id. at 70-73, as a result of which the promotional lists were not certified. Plaintiffs allege that the non-certification vote was due to SThe fifth member of the CSB, Barbara Tinney Jennings, was recused because her brother, Lt. Gary Tinney, was a candidate for promotion on the Captain's examination. She did not attend the hearings concerning these promotional exams. 15
    48. political pressure, particularly by defendant Rev. Boise Kimber, a vocal African-American minister who, it is acknowledged by all parties, is a political supporter and vote-getter for Mayor DeStefano. Plaintiffs' theory is that the defendants urged the CSB not to certify the results in the interest of pleasing minority voters and other constituents in New Haven whose priority was increasing racial diversity in the ranks of the Fire Department. Plaintiffs further argue that this pattern of political manipulation is in keeping with prior actions by the City of New Haven disregarding the Charter-mandated Rule of-Three in promotional decisions in the City's police and re departments. In support of this argument, plaintiffs proffer evidence regarding prior litigation in the Connecticut Superior and Appellate Court, the substance and outcome of which is largely admitted by defendants,6 and which resulted in sharp rebukes against the City for violating the civil service rules. See Pl. L.R. 56(a)1 Stmt. ~~ 64-90; Def. Am. L.R. 56(a)2 Stmt. ~~ 64-90. Plaintiffs argue that the apparent racial disparity in the results of the Lieutenant and Captain exams was due to the fact that hiring into, and promotion within, the Fire Department historically has been based on political patronage and promotion 6Defendants challenge the relevance of this evidence; however, as the Court held in its ruling on defendants' motion to strike, such evidence is relevant as background information to the present case. 16
    49. of racial diversity rather than merit; and they argue that the higher-scoring firefighters simply studied harder. In addition, they argue that the evident disparity was not appreciably worse on the 2003 examinations than other past promotional examinations. Defendants argue that "the decision not to certify [the test] results was mandated by anti-discrimination federal," state and local laws." Def. Mem. in Support of Mot. for Summary Judgment [Doc. # 52] at 4. Alternatively, they argue that they had a good faith belief that Title VII mandated non-certification of the examinations, and they cannot be liable under Title VII for attempting to comply with that very statute. Defendants additionally argue that plaintiffs lack standing to bring their Equal Protection claim, or, if they do have standing, the claim lacks merit because all firefighters were treated the same, regardless of race, as no orie was promoted as ~ result of the contested exams. Plaintiffs counter that a "good faith belief" that certifying the test results would violate Title VII does not constitute a defense, as a matter of law, to an allegation of Title VII or Equal Protection violations against the plaintiffs. II. Standard Summary judgment is appropriate where "there is no genuine issue as to any material fact and ... the moving party is 17
    50. entitled to a judgment as a matter of law." Fed. R. Civ. P. 56(c). An issue of fact is "material" if it "might affect the outcome of the suit under the governing law," and is "genuine" if "the evidence is such that a reasonable jury could return a verdict for the nonmoving party." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). On cross-motions for summary judgment "neither side is barred from asserting that there are issues of fact, sufficient to prevent the entry of judgment, as a matter of law, against it. When faced with cross-motions for summary judgment, a district court is not required to grant judgment as a matter of law for one side or the other." Heublein, Inc. v. United States, 966 F.2d 1455, 1461 (2d Cir. 1993) (citing Schwabenbauer v. Board of Educ. of Olean, 667 F.2d 305, 313 (2d Cir. 1981». "Rather, the court must evaluate each party's motion on its own merits, taking care in each instance to draw all reasonable inferences against the party whose motion is under consideration." Schwabembauer, 667 F.2d at 314. III. Discussion A. Title VII Plaintiffs argue that defendants' decision and/or advocacy against certifying the exam results amounted to intentional discrimination against plaintiffs, 17 of whom are white and one of whom is Hispanic, in favor of Hispanic and African-American 18
    51. examinees who were favored due to their race and their alleged political support of Mayor DeStefano, via the Rev. Boise Kimber. Plaintiffs essentially argue that defendants' professed desire to comply with Title VII's anti-disparate-impact requirements was in fact a pretext for intentional discrimination against white candidates. Because plaintiffs allege intentional discrimination, the familiar McDonnell Douglas three-prong burden-shifting test applies. 1. Burden-Shifting Framework Under that framework, plaintiffs first must establish a prima facie case of discrimination on account of race. Weinstock v. Columbia Univ., 224 F.3d 33, 42 (2d Cir. 2000). To do so, they must prove: (1) membership in a protected class; (2) qualification for the position; (3) an adverse employment action; and (4) circumstances giving"rise to an inference of discrimination on the basis of membership in the protected class. "See, ~, McDonnell Douglas Corp. v.Green, 411 U.S. 792, 802 (1973), Graham v. Long Island R.R., 230 F.3d 34, 38 (2d Cir. 2000). "A plaintiff's burden of establishing a prima facie case is de minimis." Abdu-Brisson v. Delta Airlines, Inc., 239 F.3d 456, 467 (2d Cir. 2001). Defendants do not dispute the first three prongs of the test, but argue that plaintiffs cannot establish an inference of discrimination because all applicants were treated the same, as nobody was promoted off the examination 19
    52. lists. Proof of a prima facie case shifts the burden to defendant "to produce evidence that the plaintiff was [terminated] for a legitimate, nondiscriminatory reason. This burden is one of production, not persuasion; it can involve no credibility assessment." Reeves v. Sanderson Plumbing, 530 U.S. 133, 142 (2000). (internal citations, quotations, and alterations omitted). Defendant's burden is satisfied if the proffered evidence "'taken as true, would permit the conclusion that there was a nondiscriminatory reason for the adverse action.'" Schnabel v. Abramson, 232 F.3d 83, 88 (2d Cir. 2000) (quoting St. Mary's Honor Ctr. v. Hicks, 509 U.S. 502, 509 .(1993». In this case, defendants proffer a good faith attempt to comply with Title VII as their legitimate nondiscriminatory reason for refusing to certify the exams. If the employer articulates a neutral reason for the plaintiff's termination, the burden shifts back to the plaintiff to show pretext. That is, the plaintiff "may attempt.to establish that he was the victim of intentional discrimination by showing that the employer's proffered explanation is unworthy of credence." Reeves, 530 U.S. at 143. 2. Prima Facie Case Plaintiffs' evidence- and defendants' own arguments - show that the City's reasons for advocating non-certification were 20
    53. related to the racial distribution of the results. As the transcripts show, a number of witnesses at the CSB hearings, including Kimber, mentioned "diversityH as a compelling goal of the promotional process. Ude, Marcano, and Burgett specifically' urged the CSB not to certify the results because, given the number of vacancies at that time, no African-Americans would be eligible for promotion to either Lieutenant Dr Captain, and no Latinos would be eligible for promotion to Captain. They believed this to be an undesirable outcome that could subject the City to Title VII litigation by minority firefighters,- and the City's leadership to political consequences. Had the tests not yielded what defendants perceived as racially disparate results, defendants would not have advocated rejecting the tests, and plaintiffs would have had an opportunity to be promoted .. A jury could infer that the defendants were motivated by a concern that too many whites and not enough minorities would be promoted were the lists to be certified. Given their minimal prima facie burden, the Court will assume arguendo that plaintiffs have proffered sufficient evidence to satisfy the fourth prong of the prima facie case, given defendants' acknowledgment that racial concerns, i.e. the disparate impact of the test results on minority firefighters, provided the impetus for their actions. 21
    54. 3. Pretext/Discriminatory Intent Defendants proffer as their legitimate non-discriminatory reason that they desired to comply with the letter and the spirit of Title VII. Plaintiffs deride this ~feigned desire to 'comply' with Title VII," Pl. Mem. of Law [Doc. I 81] at 3, arguing that defendants in fact violated that statute, and their actions were a mere pretext for promoting the interests of African-American firefighters and political supporters of the mayor. As plaintiffs point out, this case presents the opposite scenario of the usual challenge to an employment or promotional examination, as plaintiffs attack not the use of allegedly racially discriminatory exam results, but defendants' reason for their refusal to use the results. See Pl. Mem. of Law at 32, 34 35. Ordinarily, as contemplated by the statute, the "complaining party" bears the burden of proving a disparate impact, and the "respondent" bears the burden" of "demonstrat[ing] that the challenged practi~e is job related fbr" the positio~ in question and consistent with business necessity," or, alternatively, the "complaining party" may prevail by showing that an alternative employment practice with less disparate impact existed and that the respondent failed to utilize"it. See 42 U.S.C. § 2000e-2(k). Here, the roles of the parties are in essence reversed, with the defendants, normally reflecting a "respondent" role in the Title VII disparate impact analysis, contending that use of the 22
    55. promotional exams, if they had been certified, would have had an adverse impact, and the plaintiffs, normally the "complaining party," arguing that the test results were suff iently job- related to be defensible under the law. a. Existence of Racially Disparate Impact Although the parties dispute the exact racial breakdown of candidates passing the Captain's test,' plaintiffs do not dispute that the results showed a racially adverse impact on African- American candidates for both the Lieutenant and Captain positions, as judged by the EEOC Guidelines. Pl. L.R. 56 Stmt. ~ 246; Def. L.R. 56 Stmt. ~ 246. Thus, it is necessarily undisputed that, had minority firefighters challenged the results the examinations, the City would have been in a position of defending tests that, under applicable Guidelines, presumptively had a disparate racial impact. Specifically, the EEOC "four-fifths rule" provides that a selection tool that yields "[al selection rate for any race, sex, or ethnic group which is less than· four-fifths (4/5) (or eighty percent) of the rate for the group with the highest rate will generally be regarded by the Federal enforcement agencies as evidence of adverse impact, while a greater than four-fifths rate 'Plaintiffs assert that 32% of African-American examinees passed the Captain's examination, while defendants assert the figure is 37.5%. See Marcano Aff., Def. Ex. 4, ~ 21; Pl. L.R. 56(a) Stmt. ~~ 244-47. 23
    56. will generally not be regarded by Federal enforcement agencies as evidence of adverse impacL" 29 C.F.R. § 1607.4(D). Here, the evidence shows that on the 2003 Lieutenant's exam the pass rate for whites was 60.5%, for African-Americans 31.6% and Hispanics 20%. The four-fifths score would be 48%. In other words, African-Americans had a pass rate that was about half the pass rate for Caucasians, yielding an adverse impact ratio ("AIR") of 0.59, significantly below the AIR of 0.80 that is presumed to not evidence adverse impact under the'EEOC Guidelines. See Pl. L.R. 56(a) Stmt. ~ 246; Def. L.R. 56(a) Stmt. ~ 246. While- the parties dispute the Captain's exam pass rate for African-Americans and Hispanics (see supra note 7), the pass rate far Caucasians was 88%, which is more than double that of minorities and thus by either party's statistic an AIR far below the four-fifths guideline is yielded. Plaintiffs argue that these AIRs were not appreciably different from those on past promotional exams, and therefore defendants' stated concern with avoiding adverse impact must be pretextual. The parties agree that the AIRs on the 1999 promotional examinations would have failed the four-fifths rule as well. The AIR for African~Americans on the 1999 Lieutenant's exam was 0.58, compared to 0.59 on the 2003 test. See Pl. L.R. 56(a) Stmt. ~ 246; Def. L.R. 56(a) Stmt. ~ 246. The 1999 Captain examination had an AIR of 0.45 on African-American test-takers. 24
    57. See Pl. Ex. Vol. I, 40 (1999 scores). However, it is also undisputed that, because of the Rule of Three, the pass rate is not synonymous with the promotion rate, because only the top three scorers may be considered for each vacant position. Thus, the rank of the minority applicants is also a key factor. In 2003, given the number of vacancies, it appeared that at most two Hispanics and no African-Americans would have the opportunity to be promoted to Captain, and no minor~ties would have the opportunity to be promoted to Lieutenant. Although the record lacks specification, witnesses at the CSB hearings testified to the effect that in 1999 more minority candidates had scored toward the top of the lists, and therefore had more promotional opportunities. In any event, in 2003 defendants' concern was with the absence of minority candidates potentially eligible to be promoted, and with the diversity of the Fire Department's management in general. Thus, the fact that the 1999 exams also had a statistically adverse impact yet were certified, while the 2003 results were not, is insufficient in itself to show that defendants' concerns about complying with Titl~ VII were pretextual. b. Validation Study and Less Discriminatory Alternatives Plaintiffs additionally argue that defendants' decision was pretextual because they failed to complete a validation study to 25
    58. test whether the 2003 exams could be defended as adequately job- related. Going further, plaintiffs argue that defendants were legally required to conduct such a validation study before rendering a decision on cert cation of the results. Title VII provides: nNotwithstanding any other provision . it shall not be an unlawful employment practice for . . . an employer to give and to act upon the results of any professionally developed 'ability test prov~ded,that such test~ its administration or action upon the results is not designed, intended or used to discriminate because of race, color, religion, sex or national ~rigin." 42 U.S.C. § 2000e-2(h). As plaintiffs concede, this section nprovides that professionally developed and properly validated tests ~re a defense to a claim of disparate impact." Def. Mem. of Law at 32 (emphasis supplied). The statute itself does not require employers to implement or continue to use any test simply because it is professionally developed, nor does it provide a defense to an employer who "use[s]" a test with a discriminatory impact where other less-discriminatory, equally effective, alternatives are available. 42 U.S.C. § 2000e-21h). Although plaintiffs argue that EEOC guidelines mandated that defendants conduct a validation study before deciding not to certify the exams, the language of the guidelines does not support such a requirement. A validation .study is a method for 26
    59. determining whether a test is sufficiently related to the position for which the test or other criterion is administered. The EEOC's Uniform Guidelines for Employee Selection Procedures create a presumption that "[t]he use of any selection procedure which has an adverse impact on the hiring, promotion, or other employment or membership opportunities of members of any race, sex, or ethnic group will be considered to be discriminatory and inconsistent with these guidelines, unless the procedure has been validated in accordance with these guidelines." 29 C.F.R. § l607.3(A). The Guidelines further state: Where two or more selection procedures are available which serve the user's legitimate interest in efficient and trustworthy workmanship, and which are substantially equally valid for a given purpose, the user should use the procedure which has been demonstrated to have the lesser adverse impact. Accordingly, whenever a validity study is called for by these guidelines, the user should include, as a part of the validity study, an investigation of suitable alternative selection procedures and suitable alternative methods of using the selection procedure which have as little adverse impact as possible, to determine the appropriateness of using or validating them in accord with these guidelines. Id. at § l607.3(B) . . Where a selection procedure results in an adverse impact on a race, sex, or ethnic group . . . and that group is a significant factor in the relevant labor market, the user generally should investigate the possible existence of unfairness for that group if it is technically feasible to do so. The greater the severity of the adverse impact on a group, the greater the need to investigate the possible existence of unfairness. 29 C.F.R. § l607.l4(B) (8) (b) The Guidelines provide technical 27
    60. guidance for three types of studies: criterion-related validity studies, content validity studies, and construct validity studies. See generally 29 C.F.R. § 1607.14. The Guidelines are written on the assumption that the employer would be defending a certain test and seeking to validate such test in response to a disparate impact challenge from protected group employees. They do not address the tuation in the present case of an employer rejecting a test without conducting a validation study. Nonetheless, it is evident from the language of the guidelines that a validation study is contemplated as one method by which an employer can defend its use of a test or other selection method it desires to utilize by demonstration that it is sufficiently job-related -to pass muster under the statute, despite a racially adverse impact. The guidelines do not require or mandate a validity study where an employer decides using a certain selection procedure that manifests this impact and plaintiff's argument that defendants violated Title VII by refusing to conduct a validity study before rejecting testing results is thus unpersuasive. Plaintiffs argue that the CSB did not have extensive evidence of the existence of other, less-discriminatory, and equally-effective selection measures. Dr. Hornick telephonically testified that other tests, particularly ones he had developed, generally yield less adverse impact, and mentioned that an 28
    61. ~assessment center approach" might benefit New Haven, without specifically explaining what that approach entailed. As plaintiffs argue, there was no testimony that an ~assessment center" approach has a demonstrably less adverse impact, and there is some evidence in the record in this case, including from Dr. Hornick's website, that such an approach may still have some adverse impact. Dr. Hornick acknowledged that he had not had time to review the exams carefully, and his comments illustrated lack of famil rity with the methods lOS utilized to develop the tests. He suggested that lack of internal review by members of the New Haven Fire Department could have yielded questions that were less relevant to the particular department, but offered no explanation of why such a circumstance would have an adverse impact on minority candidates in particular. Dr. Helms from Boston College testified that the racial disparity 6n the exams at issue were not significantly different from the statistical disparities apparent on standardized tests nationwide. Mr. Lewis, the arson specialist from the Department of Homeland Security, stated that he believed the tests were fair and focused on material that a Lieutenant or Captain should kno~. On the other hand, Dr. Hornick and representatives of the black firefighters' union suggested that the 60/40 weighting system for the oral and written examinations could have produced an adverse impact. The testimony suggested that changing the 29
    62. weighting system yielded increased minority pass rates and diversity in the ranks of Bridgeport fLrefighters and officers. Dr. Helms suggested that because different employees have different ways of doing the same job, the fact that approximately 2/3 of those interviewed for the JAQwere white could have unintentionally introduced a bias into the test instrument. She and Mr. Lewis also suggested that differences in the availability of formal training and informal mentoring may have created the disparate effect apparent in the results. Plaintiffs purport to counter this argument with affidavits emphasizing how much they studied and sacrificed to perform well on the exams, compared to their observations of the efforts of some other examinees, and point to the availability of study groups and informal mentoring in the department. It appears that the reasons for testing disparities remain elusive. Dr. Helms testified that many theories exist, but experts on standardized testing nationwide have been unable to satisfactorily fully explain the reasons for the disparity in . performance observed on many tests. Plaintiffs' argument boils down to the assertion that if defendants cannot prove that the disparities on the Lieutenant and Captain exams were due to a particular flaw inherent in those exams, then they should have certified the results because there was no other alternative in place. Notwithstanding the 30
    63. shortcomings in the evidence on existing, effective alternatives, it is not the case that defendants must certify a test where they cannot pinpoint its deficiency explaining its disparate impact under the four-fifths rule simply because they have not yet formulated a better selection method. c. Diversity Rationale The real crux of plaintiffs' argument is that defendants refused to explore alternatives or conduct a validity study because they had already decided that they did not like the inevitable promotional results if the process continued to its expected conclusion,8 and that their udiversityH rationale is prohibited as reverse discrimination under Title VII. In Haydenv. County of Nassau, 180 F.3d 42 (2d Cir. 1999), the Second Circuit held that race-conscious configuration of an entry-level police department exam did not violate Title VII or the Equal Protection Clause. In that case, the Nassau County Police Department was operating under several cons~nt decrees prohibiting it from engaging in discrimination in its selection of police officers, and particularly from utilizing examinations with disparate impact on minority applicants. Following development of a test by the county and Department of Justice 8Plaintiffs present evidence in the form of emails from the Mayor's staff suggesting they desired to convince the CSB not to certify, and further suggesting that if the CSB had certified, the Mayor would have announced his intention to refuse to forward the lists to the Fire Department for promotion. 31
    64. advisors, a validity analysis was conducted to determine which configuration of the test was sufficiently job-related "yet minimized the adverse impact on minority applicants. Of the twenty-five sections administered to the applicants, the [technical report] recommended that Nassau County use nine sections as the . test." Id. at 47. A class of White and Latino officers challenged use of the adjusted test under Title VII and the Fourteenth Amendment, inter alia, contending that the deliberate design of the test to reduce adverse impact on African~American candidates necessarily discriminated against them on the basis of race." The Court of Appeals rejected the plaintiffs' contentions, finding plaintiffs were "mistaken in treating racial motive.as a synonym for a constitutional .violation" and observing that "[e]veryantidiscrimination statute aimed at racial discrimination, and every enforcement measure taken under such a statute, reflect a concern with race. That does not make such enactments or actions unla~ftil or automatically suspect . . . " Id. at 48-49 (quoting Raso v. Lago, 135 F.3d II, 16 (1st Cir.») (internal quotation marks omitted). The Hayden court further held that the construction of the Nassau County test for the purpose of minimizing adverse impact on minorities was not intentional "reverse discrimination" against whites because the same nine test sections were used for all applicants, so it was "simply not analogous to a quota system or 32
    65. 33
    66. claim of discrimination to serve as a predicate for a voluntary compromise containing race-conscious remedies." Id. at 1130. The Second Circuit expanded Kirkland in Bushey v. New York State Civil Service Commission, 733 F. 2d 220 (2d Cir. 1984). There, the civil service commission had administer.ed a promotional examination that had a significant adverse impact, with non-minority applicants passing at almost twice the rate of minority ap.plicants. The defendants race-normed the scores for each group, increasing the pass rate of the minority group to the equivalent of the non~minority group, and effectively making an additional 8 minority individuals eligible for promotion, without taking any non-minorities off the list. The Court of Appeals held that the initial results, particularly ~the score distributions of minority and nonminority candidates, were sufficient to establish a prima facie showing of adverse impact," id. at 225, and, consistent with Kirkland, ~a showing of a prima facie case of employment discrimination through a statistical demonstration of disproportional racial impact constitutes a sufficiently serious claim of discrimination to serve as a predicate for employer-initiated, voluntary race-conscious remedies," id. at 228. In other words, a prima facie case is one way that a race-conscious remedy is justified, but it is not required: all that is required is ~a sufficiently serious claim of discrimination" to warrant such a remedy. Id. at 228; see 34
    67. also id. at 226 n. 7. In this case, the parties agree that the adverse impact ratios for African-American and Hispanic test-takers on both the Lieutenant and Captain exams were too low to pass muster under the EEOC's "four-fifths rule." As Kirkland and Bushey held, a statistical showing of discrimination, and particularly a pass rate below the "four-fifths rule," is sufficient to make out a prima facie case of discrimination, and therefore sufficient to justify voluntary race-conscious remedies. 9 Here, defendants' remedy is "race conscious" at most because their actions reflected their intent not to implement a promotional process based on testing results that had an adverse impact on African- Americans and Hispanics. The remedy chosen here was decidedly less "race conscious" than the remedies in Kirkland and Bushey, 9Plaintiffs denigrate reliance on Kirkland and Bushev on the grounds that the "race-norming" procedures utilized in those cases would be unlawful under the 1991 amendments to the Civil Rights Act. 42 U.S.C. § 2000e-2(1) ("It shall be an unlawful employment practice for a respondent, in connection with the selection or referral of applicants or candidates for employment or promotion, to adjust the scores of, use different cutoff scores for, or otherwise alter the .results of, employment related tests on the basis of race, color, religion, sex, or national origin."). See also Hayden, 180 F.3d at 53 (this provision was "intended to prohibit 'race norming' and other methods of using different cut-offs for different races or altering scores based on race.") (emphasis in original). While plaintiffs are correct that Title VII now prohibits race-norming, none is alleged to have happened here and the 1991 amendments do not affect the reasoning and holding of either case, namely, that a showing of a "sufficiently serious claim of discrimination" is adequate to justify race conscious, remedial measures. 35
    68. because New Haven did not race-norm the scores, they simply decided to start over, to develop some new assessment mechanism with less disparate impact. Thus, while the evidence shows that race was taken into account in the decision not to certify the test results, the result was race-neutral: all the test results were discarded, no one was promoted, and firefighters of every race will have to participate in another selection process to be considered for promotion. Indeed, there is a total absence of any evidence of discriminatory animus towards plaintiffs - under the reasoning of Hayden, 180 F.3d at 51, "nothing in our jurisprudence precludes the use of race-neutral means to improve racial and gender representation. [T]he intent to remedy the disparate impact of the prior exams is not equivalent to an intent to discriminate against non-minority applicants. H1o lOTaxman v. Bd. of Educ. of T'wp of Piscataway, 91 F.3d 1547, 1558 (3d Cir. 1996) (en banc) , cert. dismissed, 522 U.S. 1010 (1997), relied on by plaintiffs, is readily distinguishable. There, the board of education relied on an affirmative action plan to defend its decision to layoff a white teacher instead of a black teacher with equal seniority, and the Third Circuit held that promoting racial diversity on the faculty, absent a history of past discrimination, was insufficient justification for laying off the white teacher because of her race and violated Title VII. Here, defendants had ample statistical evidence that the tests had an adverse impact on minority candidates and importantly did not opt to select black applicants over white applicants for promotion, but rather decided to select nobody at all. Williams v. Consolo City of Jacksonville, No. 00cv469, 2002 U.S. Dist. LEXIS 27066 (D. Fla. July 5, 2002), can similarly be distinguished as that case did not concern a decision not to certify test results, but rather a post-certification decision not to create the positions which would result in plaintiffs' promotions because plaintiffs were not African-American. 36
    69. Plainti contend that Hayden is distinguishable by the fact that the remedy approved there was pursuant to previous consent decrees; they do not explain why they view this distinction as significant. As Bushey held, it would contravene the remedial purpose of Title VII if an employer were required to await a lawsuit before voluntarily implementing measures with less discriminatory impact. Bushey, 733 F.2d at 227 (rejecting the plaintiffs' argument that the remedial measures in Kirkland were only permissible as part of a settlement in that case, because that "would create an anomalous situation. It would require an employer. ' . . ' to issue a presumptively discriminatory eligibility list, wait to be sued by minority candidates, and only then seek a settlement .... Such an approach would serve no purpose other than to impede the process of voluntary compliance with Title VII and cause the proliferation of litigation in all such cases . . . . ff). Plaintiffs also attempt to distinguish Hayden on the grounds that the challengers to that test, which was constructed from the nine most job-related sections with the least disparate impact, were not injured or disadvantaged, whereas "the instant plaintiffs have been both injured, as they were deprived of promotions, and disadvantaged as they will now be forced to compete once again." Pl. Mem. of Law at 58. Plaintiffs take this language from Hayden out of context. In holding that the 37
    70. Hayden plaintiffs did not prove disparate impact on nonminority applicants, the Court of Appeals held that because "appellants continued to score higher than black candidates, on average, the exam did not impair or disadvantage these appellants in favor of African-American applicants. Thus, appellants are unable to set forth a claim that they endured any disparate impact as a result of the design and administration of the . examination." Hayden, 180 F:3d at 52. Here, plaintiffs. allege disparate .treatment, not disparate impact. Nor do they have a viable claim of disparate impact because the decision to disregard the test results affected all applicants equally, regardless of race - all applicants will have to participate in a new test or selection procedure. 11 Furthermore, plaintiffs were not "deprived of promotions." As the parties agree, under New Haven's civil service ru~es, no applicant is entitled .to promotion unless and until the CSB certifies the results. Even then, application of the Rule of Three would give top scorers an opportunity for promotion, depending on the number of vacancies, but no guarantee of llWhile plaintiffs, who describe their considerable efforts to perform well on this infrequently given promotion exam, are understandably disappointed and frustrated that their successful study efforts have come to naught this time, this result is not evidence of being disadvantaged because of their race nor evidence of disparate impact because it does not show injury or disadvantage, only uncertainty as to their performance in the City's next promotion selection process. 38
    71. promotion; it is even conceivable that the applicant with the highest score never would be promoted. See United States v. City of Chicago, 869 F.2d 1033, 1038 (7th Cir. 1989) (where state law permitted promotion from among five highest-ranked individuals on eligibility list, challenger had no property right to promotion: ft a roster ranking may create an expectation of promotion, but an officer has no entitlement to a particular roster position or to promotion."); Bridgeport Firebird Society v. City of Bridgeport, 686 F. Supp. 53, 58 (ftAt best, the provisions of the City Charter [mandating a Rule of One for promotions] provide the refighters ranked on the eligibility list only with a mere expectation of promotion, which does not rise to the level of a legally protected interest, especially in the face of 'presumptively discriminatory employment practices.'") (quoting Kirkland, 711 F. 2d at 1126». Thus, while the facts of Hayden were slightly different than those here, the Court finds the holding quite relevant and instructive. Defendants' motivation to avoid making promotions based on a test with a racially disparate impact, even in a political context,12 does not, as a matter of law, constitute 12Assuming arguendo that political favoritism or motivations may be shown to have been intertwined with the race concern, that does not suffice to establish a Title VII violation. See,~, EEOC v. Flasher Co., Inc., 986 F.2d 1312, 1321 (10th Cir. 1992) (pretext is not shown merely because ft some less seemly reason personal or political favoritism, a grudge, random conduct, an error in the administration of neutral rules actually accounts 39
    72. discriminatory intent, and therefore such evidence is insufficient for plaintiffs to prevail on their Title VII claim. Accordingly, the Court will grant defendants' motion and deny plaintiffs' motion for summary judgment on this claim. B. Equal Protection Claim Plaintiffs argue that defendants violated the Equal Protection Clause either by employing a race-based classification system for promotion or, alternatively, by applying facially neutral promotion criteria in a racially discriminatory manner. Defendants counter that they did not employ any racial classi cations because every applicant was treated the same when the CSB decided that nobody would be promoted off the lists, and there was no discriminatory intent against whites motivating their non-certification decision. Additionally, defendants argue that plaintiffs lack standing to bring an Equal Protection claim. 1. Standing Defendants acknowledge, as they must, that non-minorities have been found to be in a protected group for purposes of standing under the Equal Protection Clause. See,~, Adarand Constructors, Inc. v. Pena, 515 U.S. 200, 210 (1995) (holding that non-minority-owned business' ~allegation that it has lost a contract in the past because of a [minority set~aside] subcontractor compensation clause of course entitles it to seek for the decision") . 40
    73. damages for the loss of that contract."). However, defendants argue that because plaintiffs have not suffered any harm, and specifically because plaintiffs were not "passed over for a benefit that was given to an allegedly less deserving minority," Def. Reply Mem. at 37, they lack standing. Defendants confuse standing with the merits of the case. The constitutional injury plaintiffs claim here is not failure to be promoted, but failure to be treated equally on the basis of race. Plaintiffs have standing to bring such a claim. Comer v. Cisneros, 37 F.3d 775~' 791 (2d Cir. 1994) (plaintiff had standing to bring equal protection claim where she alleged that the defendant's Section 8 housing subsidy program "rules and regulations, in their administration, violate the Constitution because they erect a barrier that makes it more difficult for economically disadvantaged blacks to obtain a housing benefit than it was for rion-minorities") . 2. Racial Classification/Discriminatory Intent Plaintiffs' Equal Protection claim, however, lacks merit, with respect to both the racial classification and disparate treatment arguments. As the Second Circuit held in Hayden when rejecting plaintiffs' classification argument, if an exam is "administered and scored in an identical fashion for all applicants," there is no racial classification. Hayden, 180 F.3d at 48. Further, a "desire" "to design an entrance exam which 41
    74. would diminish the adverse impact on black applicants does not constitute a 'racial classification.'" Id. Here, all applicants took the same test, and the result was the same for all because the test results were discarded and nobody was promoted. This does not amount to a facial classification based on race. I3 Likewise, where a test is administered and scored in the same manner for all applicants, plaintiffs cannot make out a claim that the exam was a facially neutral test used in a discriminatory manner. at 50. Plaintiffs argue that their equal protection rights were violated because they passed the tests and therefore were not similarly-situated to minority applicants who failed~Plainti argue that if a black employee "shows up for work and works a full day" and a white employee does,not, and the black employee 13Therefore, plaintiffs' reliance on Berkley v. United '287 F.3d 1076 (Fed. Cir. 2002), is unavailing. In that case, the Air Force employed facially different criteria for selecting women and minority employees for layoff compared to white male employees, and the Federal Circuit held that such a program should be subjected to strict scrutiny (without ruling on the merits). Likewise, in Dallas Fire Fighters Assoc. v City of Dallas, 150 F.3d 438 (5th Cir. 1998), also relied on by plaintiffs, the city followed an affirmative action plan that specifically called for promoting African-American, Hispanic and female firefighters out of rank, ahead of white and Native American male fighters with higher test scores. Here, no classification system was employed, as the test results were discarded for every examinee regardless of race. While defendants clearly were concerned with achieving diversity in the department by enhancing minority promotional opportunity, plaintiffs offer no evidence that defendants employed an actual race-based affirmative action plan that advantaged minority over white applicants for promotion. 42
    75. complains "that he was due his wages,H the employer cannot be heard to defend the complaint on the ground that the employees were treated the same because neither was paid. Pl. Mem. in Opp. at 64. Plaintiffs' analogy is faulty because performing well on the exam does not create an entitlement to promotion, whereas working entitles an employee to be paid. Second, a presumptively . flawed test result may not be a proper measure for determining whether anyone should be promoted. Finally, plaintiffs cannot show that defendants acted out of an intentionally discriminatory purpose. "Discriminatory purpose 'implies that the decisionmaker ... selected or reaffirmed a particular course of action at least in part 'because of,' not merely 'in spite of,' its adverse effects upon an identifiable group.'H (quoting Personnel Administrator v. Feeney, 442 U.S. 256, 279 (1979». Nothing in the record in this case suggests that the City defendants or CSB acted "because of~' discriminatory animus toward plaintiffs or other non-minority applicants for promotion. Rather, they acted based on the following concerns: that the test had a statistically adverse impact on African- American and Hispanic examinees; that promoting off of this list would undermine their goal of diversity in the Fire Department and would fail to develop managerial role models for aspiring firefighters; that it would subject the City to public criticism; and that it would likely subject the City to Title VII lawsuits 43
    76. from minority applicants that, for political reasons" the City did not want to defend. "[T]he intent to remedy the disparate impact of [the tests] is not equivalent to an intent to discriminate against non-minority applicants." Hayden, 180 F.3d at 51. None of the defendants' expressed motives could suggest to a reasonable juror that defendants acted,"because of" animus again~t non-minority firefighters who took the Lieutenant and Captain exams. Accordingly, defendants' motion for summary judgment on this claim will be granted and plaintiffs' motion will be denied. 14 C. Civil Rights Conspiracy Title 42 U.S.C. § 1985(3) permits recovery of damages if a plaintiff can prove a conspiracy "for the purpose of depriving, either directly or indirectly, any person or class of persons of the equal protection of the laws, or of equal privileges and immunities under the laws." Because the Court has found that plaintiffs fail to present sufficient evidence that their equal protection rights were violated, their § 1985 conspiracy claim must fail as well. See Mian v. Donaldson, Lufkin & Jenrette Securities Corp., 7 F.3d 1085, 1088 (2d Cir. 1993) (evidence of "racial or perhaps otherwise class-based, invidious discriminatory animus" required to prevail on § 1985 claim). 14For this reason the Court need not reach defendants' arguments that they are entitled to qualified immunity on the Equal Protection claim. 44
    77. Accordingly, defendants' motion for summary judgment on this claim will be granted. D. First Amendment Defendants additionally move for summary judgment on plaintiffs' First Amendment freedom-of-association claim, which motion will also be granted. Plaintiffs do not attempt to rebut defendants' contentions that plaintiffs have not identified a free speech activity in which they participated nor claimed that any chilling of speech resulted. Rather, plaintiffs argue that th~ CSB's non- certification decision, and the City defendants' advocacy of that decision, resulted from political pressure by defendant Kimber, who threatened the CSB with ~political ramifications H if they voted to certify the results. Plaintiffs argue that ~a jury could rationally infer that city officials worked behind the scenes to sabotage the promotional examinations because they knew that, were the exams certified, the Mayor would incur the wrath of Kimber and other influential leaders of New Haven's African- American community." PI. Mem. in Opp. at 73. While a jury could make such an inference, it would not lead to the conclusion that plaintiffs' First Amendment right to freedom of association was violated as. a matter of law. The evidence shows that Kimber spoke at the first CSB hearing and strenuously argued against certification, and the City defendants 45
    78. do not dispute that Kimber is a close political ally of the Mayor. However, there is no evidence in the record to suggest that the non-certification decision was made in retaliation for plaintiffs' refusal to "associate with," or their expression of disagreement with, Kimber. As with the Equal Protection claim, the fact that defendants desired to avoid the wrath of one group (in this case African-American firefighters and other political supporters of Kimber and DeStefano) does not logically lead to the conclusion that defendants intended to discriminate or retaliate against plaintiffs because they were not members of that group. More importantly, there is no evidence in the record even to. suggest that defendants· knew plaintiffs' political affiliations, i.e., whether they supported Kimber and/or DeStefano on any issue other than the certification of these particular exam re?ults. In sum, in plaintiffs' terms, the record shows that defendants acted to head off.the potential adverse impact of the promotion tests on African-American and Hispanic firefighters in order to curry favor with minority voters and political leaders in the City, but it does not contain any evidence of an intent or purpose to target plaintiffs for not supporting that political coalition or its interests. Thus, defendants' motion for summary judgment on the First Amendment claim must be granted. 46
    79. 47
    80. distress. The Clerk is directed to close this case. IT IS SO ORDERED. lsi Janet Bond Arterton United States Dis Judge Dated at New Haven, Connecticut this 28th day of September, 2006. 48
    81. 06-4996-cv Ricci v. DeStefano UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT ____________________________________ August Term, 2007 (Argued: December 10, 2007 Decided: June 9, 2008 En Banc Concurrence Decided: June 13, 2008) Docket No. 06-4996-cv ____________________________________ FRANK RICCI, MICHAEL BLATCHLEY, GREG BOIVIN, GARY CARBONE, MICHAEL CHRISTOFORO, RYAN DIVITO, STEVEN DURAND, WILLIAM GAMBARDELLA, BRIAN JOOSS, JAMES KOTTAGE, MATTHEW MARCARELLI, THOMAS J. MICHAELS, SEAN PATTON, CHRISTOPHER PARKER, EDWARD RIORDON, KEVIN ROXBEE, TIMOTHY SCANLON, BENJAMIN VARGAS, JOHN VENDETTO and MARK VENDETTO, Plaintiffs-Appellants, v. JOHN DESTEFANO, KAREN DUBOIS-WALTON, THOMAS UDE JR., TINA BURGETT, BOISE KIMBER, MALCOLM WEBER, ZELMA TIRADO and CITY OF NEW HAVEN, Defendant-Appellees. ____________________________________ CALABRESI, Circuit Judge, concurring in the denial of rehearing en banc: 1 I join entirely Judge Parker’s opinion concurring in the denial of a rehearing en banc. I also 2 join fully Judge Katzmann’s opinion because, as he points out, going en banc is unnecessary as all 3 that is involved in this case has already been described in the filed opinions. I write today to -1-
    82. 1 emphasize one reason that, I believe, makes it particularly inappropriate for us to exercise our purely 2 discretionary power to review this case en banc. 3 The question of whether a municipality incurs liability when, motivated only by a desire to 4 comply with federal anti-discrimination law, it takes race-neutral actions that have racially 5 significant consequences, is undoubtedly an interesting one.1 To reach that question one must, 6 however, first examine whether the municipality’s proffered desire to comply with federal law is in 7 good faith and not a pretext. After that, we would normally ask whether that asserted desire, 8 although in good faith, is not also in part motivated by other, racial, considerations. In this case, the 9 municipality claimed that its actions were grounded solely in the desire to comply with federal law. 10 The plaintiffs alleged instead that this was not the real reason for the city’s actions, and asserted that 11 the city had other less salubrious, and directly racial-political, reasons for what it did. 12 The district court and the panel readily rejected the notion that the city’s stated reason was 13 just a pretext. But neither court went on to consider whether the city was influenced by mixed 14 motives. And that is why Judge Cabranes, in his dissent from the denial of en banc review, suggests 15 that, since the plaintiffs alleged that their race motivated the defendants’ decision, the district court 16 should have undertaken such a mixed motive analysis. He contends, that is, that the courts should 17 have examined the situation as one in which a legitimate motive may have combined with an 18 improper motive to bring about the challenged action. See Price Waterhouse v. Hopkins, 490 U.S. 19 228 (1989). He would be precisely right . . . except for the fact that that type of analysis is not 1 For an exceptionally thoughtful and thorough discussion of this area, see Richard A. Primus, Equal Protection and Disparate Impact: Round 3, 117 Harv. L. Rev. 494 (2003). -2-
    83. 1 available to us in this case. It is not available for the most traditional of legal reasons. The parties 2 did not present a mixed motive argument to the district court or to the panel.2 3 It is the unavailability of mixed motive analysis that makes this case an especially undesirable 4 one for elective review. The interesting issue the case might present – concerning the obligations 5 of a municipality seeking only to comply with the relevant federal anti-discrimination law – is, in 6 the circumstances before us, clouded by the allegations that something more is going on. Given the 7 plaintiffs’ failure to argue mixed-motive analysis, those allegations cannot be adequately evaluated. 8 But they nevertheless cannot help but affect how we look at the city’s actions. And they may even 9 influence, inappropriately, how we are inclined to rule on the underlying, “interesting” issue. 10 Difficult issues should be decided only when they must be decided, or when they are truly 11 well presented. When they need not be decided – and rehearing en banc is always a matter of choice, 12 not necessity – it is wise to wait until they come up in a manner that helps, rather than hinders, clarity 13 of thought. That is not so in this case. 14 For this reason too, I concur in the denial of rehearing en banc. 15 2 It is unavailable, that is, unless we reach out and consider a legal theory that the parties have eschewed. Sometimes – for example, in matters of life and death – such a reaching out may be appropriate. But generally, and specifically in this case, it is not. -3-
    84. 06-4996-cv Ricci v. DeStefano 1 DENNIS JACOBS, Chief Judge, dissenting from the denial of 2 rehearing in banc: 3 4 Along with almost half of the members of this Court, I 5 join Judge Cabranes’s dissent, which does the heavy lifting 6 on the procedural merits of in banc review. I write 7 separately to answer respectfully the concurring opinions of 8 Judge Calabresi and Judge Katzmann. 1 9 Judge Katzmann and those of my colleagues who signed 10 his opinion “recognize” that this case “presents difficult 11 issues,” but would leave further review and consideration to 12 the Supreme Court, citing a Circuit “tradition” of deference 13 to panel adjudication. In effect, this has become a Circuit 14 tradition of hearing virtually no cases in banc. 15 The grant or denial of in banc review is governed by 16 Fed. R. App. P. 35, which says that in banc rehearing is 17 disfavored--unless such review is needed for coherence of 1 I have not solicited concurrences for my opinion. 1
    85. 1 the Court’s decisions or “the proceeding involves a question 2 of exceptional importance.” Fed. R. App. P. 35(a). 3 Accordingly, the next subdivision of Rule 35 requires the 4 petition to explain why the case falls within one or both of 5 these categories. See Fed. R. App. P. 35(b). 6 This weighing calls for an exercise of discretion. 7 Judge Calabresi’s concurring opinion deprecates this 8 standard as a “purely discretionary power” that is “always a 9 matter of choice” (emphasis added). He nevertheless 10 “join[s] fully” in both Judge Parker’s opinion, which 11 counsels against in banc review as a matter of (plain 12 ordinary) discretion, and Judge Katzmann’s opinion, which 13 decides against in banc review as a matter of tradition. I 14 understand Judge Calabresi to be saying, in effect, that 15 when it comes to in banc review, discretion should be 16 leavened by caprice. As applied to this case, that means 17 that there might be discretionary grounds for denying in 18 banc review were it not already foreclosed by tradition.2 2 In the alternative, Judge Calabresi contends that we cannot consider whether the District Court applied the correct legal standard to plaintiffs’ Title VII claim because the “parties did not present [that] argument to the district court or the panel” and we can only consider a 2
    86. 1 This occluded view of our discretion to sit in banc 2 runs counter to the criteria set down for our guidance in 3 Rule 35. No doubt, the proper exercise of discretion 4 results in the denial of review in the overwhelming number 5 of cases. And the resulting pattern may resemble the 6 pattern of denial that would result from saying “no” by 7 tradition. But the decision to grant or deny in banc review 8 is like any other discretionary decision in the sense that 9 discretion should be exercised, not elided or stuck in a “legal theory that the parties have eschewed” in such circumstances as “matters of life and death.” Judge Calabresi provides no authority for this proposition for the good reason that it is unsound. Writing for a unanimous Supreme Court, Justice Thurgood Marshall explained that “[w]hen an issue or claim is properly before the court, the court is not limited to the particular legal theories advanced by the parties, but rather retains the independent power to identify and apply the proper construction of governing law.” Kamen v. Kemper Fin. Servs., Inc., 500 U.S. 90, 99 (1991) ; see also Hankins v. Lyght, 441 F.3d 96, 104 (2d Cir. 2006) (“We are required to interpret federal statutes as they are written . . . and we are not bound by parties’ stipulations of law.”); Neilson v. D'Angelis, 409 F.3d 100, 105 n.2 (2d Cir. 2005) (“The parties’ apparent agreement on the standard of ‘similarity’ for ‘class of one’ cases does not control our judgment, because this court is not bound by stipulations of law.”); United States v. Pabon-Cruz, 391 F.3d 86, 97 (2d Cir. 2004) (“It is clear that we have the authority to resolve this question despite its not having been raised in the District Court proceedings or in the parties’ initial briefs.”). 3
    87. 1 default position. See United States v. Campo, 140 F.3d 415, 2 419 (2d Cir. 1998) (holding that “refusal to exercise 3 discretion accorded [the court] by law . . . constitutes an 4 error of law”). 5 The exercise of discretion to hear cases in banc is 6 integral to the judicial process. The advisory notes 7 emphasize that “an en banc proceeding provides a safeguard 8 against unnecessary intercircuit conflicts.” See Fed. R. 9 App. P. 35, Advisory Committee Notes (1998 Amendments). In 10 other words, issues of exceptional importance that may 11 divide the circuits should be subject to in banc review lest 12 a three-judge panel adopt a rule of law that would not 13 command a majority vote of the appeals court as a whole, and 14 thereby provoke an avoidable circuit conflict that the 15 Supreme Court would have to resolve. 16 That is why I respectfully disagree with those of my 17 colleagues who are pleased to defer as a matter of tradition 18 to the ruling of the three-judge panel, and thereby leave 19 further consideration to the Supreme Court. Cf. Landell v. 20 Sorrell, 406 F.3d 159, 167 (2d Cir 2005) (Sack, J., and 4
    88. 1 Katzmann, J., concurring) (observing that in banc hearing 2 should be avoided where it “would only forestall resolution 3 of issues destined appropriately for Supreme Court 4 consideration”). 5 I do not think it is enough for us to dilate on 6 exceptionally important issues in a sheaf of concurrences 7 and dissents arguing over the denial of in banc review. If 8 issues are important enough to warrant Supreme Court review, 9 they are important enough for our full Court to consider and 10 decide on the merits. Of course, if an in banc poll 11 discloses broad-based agreement with the panel opinion, in 12 banc review may be a spinning of wheels. Under such 13 circumstances, it may very well be an appropriate exercise 14 of discretion to deny rehearing in banc. But to rely on 15 tradition to deny rehearing in banc starts to look very much 16 like abuse of discretion. 5
    89. UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT August Term, 2005 (Argued: June 8, 2006 Decided: January 25, 2007) Docket Nos. 04-6692-ag(L), 04-6693-ag(CON), 04-6694-ag(CON), 04-6695-ag(CON), 04-6696-ag(CON), 04-6697-ag(CON), 04-6698-ag(CON), 04-6699-ag(CON) _____________________________________________ RIVERKEEPER, INC., NATURAL RESOURCES DEFENSE COUNCIL, WATERKEEPER ALLIANCE, SOUNDKEEPER, INC., SCENIC HUDSON, INC., SAVE THE BAY-PEOPLE FOR NARRAGANSETT BAY, FRIENDS OF CASCO BAY, AMERICAN LITTORAL SOCIETY, DELAWARE RIVERKEEPER NETWORK, HACKENSACK RIVERKEEPER, INC., NEW YORK/NEW JERSEY BAYKEEPER, SANTA MONICA BAYKEEPER, SAN DIEGO BAYKEEPER, CALIFORNIA COASTKEEPER, COLUMBIA RIVERKEEPER, CONSERVATION LAW FOUNDATION, SURFRIDER FOUNDATION, STATE OF RHODE ISLAND, STATE OF CONNECTICUT, STATE OF DELAWARE, COMMONWEALTH OF MASSACHUSETTS, STATE OF NEW JERSEY, STATE OF NEW YORK, APPALACHIAN POWER COMPANY, ILLINOIS ENERGY ASSOCIATION, UTILITY WATER ACT GROUP, PSEG FOSSIL LLC, PSEG NUCLEAR LLC, ENTERGY CORPORATION, Petitioners, – v. – UNITED STATES ENVIRONMENTAL PROTECTION AGENCY, STEPHEN L. JOHNSON, in his official capacity as ADMINISTRATOR OF THE UNITED STATES ENVIRONMENTAL PROTECTION AGENCY, Respondents. ____________________________________________ Before: STRAUB, SOTOMAYOR, and HALL, Circuit Judges. ____________________________________________ Petitioners challenge a final rule promulgated by the Environmental Protection Agency pursuant to section 316(b) of the Clean Water Act, 33 U.S.C. § 1326(b), that is intended to protect aquatic organisms from being harmed or killed by cooling water intake structures at large, existing power-producing facilities. While we conclude that certain aspects of the rule are
    90. based on a reasonable interpretation of the Clean Water Act and supported by substantial evidence in the administrative record, several aspects of the rule are not consistent with the statute, are not supported by sufficient evidence, or were not properly subject to notice and comment. We therefore grant in part and deny in part the petitions for review and dismiss in part one aspect of the petitions for lack of jurisdiction because there is no final agency action to review. REED W. SUPER, Morningside Heights Legal Services, Inc., Environmental Law Clinic, Columbia University School of Law (Michelle Avallone, Julia Errea, Vivian Mills, Ian Dattner, Monique Mendez, Misti Duvall, Devon Knowles, Molly McOwan, Adam Orford, Scott Sneddon, on the brief; P. Kent Corell, of counsel), New York, New York, for Petitioners Riverkeeper, Inc., Natural Resources Defense Council, Waterkeeper Alliance, Soundkeeper, Inc., Scenic Hudson, Inc., Save the Bay–People for Narragansett Bay, Friends of Casco Bay, American Littoral Society, Delaware Riverkeeper Network, Hackensack Riverkeeper, Inc., New York/New Jersey Baykeeper, Santa Monica Baykeeper, San Diego Baykeeper, California Coastkeeper, Columbia Riverkeeper, Conservation Law Foundation, and Surfrider Foundation. TRICIA K. JEDELE, Special Assistant Attorney General of Rhode Island, Providence, Rhode Island (Patrick C. Lynch, Attorney General of Rhode Island; Michael Rubin, Special Assistant Attorney General, Providence, Rhode Island; Richard Blumenthal, Attorney General of Connecticut, Kimberly Massicotte and Matthew Levine, Assistant Attorneys General, Hartford, Connecticut; Carl C. Danberg, Attorney General of Delaware, Kevin Maloney, Deputy Attorney General, Wilmington, Delaware; Thomas F. Reilly, Attorney General of Massachusetts, Andrew Goldberg, 2
    91. Assistant Attorney General, Boston, Massachusetts; Zulima V. Farber, Attorney General of New Jersey, Ellen Barney Balint, Deputy Attorney General, Trenton, New Jersey; Eliot Spitzer, Attorney General of New York, Maureen F. Leary, Assistant Attorney General, Albany, New York, on the brief), for State Petitioners Rhode Island, Connecticut, Delaware, Massachusetts, New Jersey, and New York. KRISTY A.N. BULLEIT, Hunton & Williams, Washington, D.C. (James N. Christman, Elizabeth E. Aldridge, Hunton & Williams, Richmond, Virginia, on the brief), for Petitioners Appalachian Power Company, Illinois Energy Association, and Utility Water Act Group. KARL S. LYTZ, Latham & Watkins LLP, San Francisco, California (Christopher J. McAuliffe, PSEG Services Corporation, Newark, New Jersey; David J. Hayes, Cassandra Sturkie, Latham & Watkins LLP, Washington, D.C., on the brief), for Petitioners PSEG Fossil LLC and PSEG Nuclear LLC. CHUCK D. BARLOW, Entergy Services, Inc., Jackson, Mississippi and ELISE N. ZOLI, Goodwin Procter LLP, Boston, Massachusetts (Robert H. Fitzgerald, U. Gwyn Williams, Goodwin Procter LLP, Boston, Massachusetts, on the brief), for Petitioner Entergy Corp. DAVID S. GUALTIERI, CYNTHIA J. MORRIS, and JESSICA O’DONNELL, United States Department of Justice (Sue Ellen Woolridge, Assistant Attorney General, John C. Cruden, Deputy Assistant Attorney General, on the brief; Leslie J. Darman, United States Environmental Protection Agency, of counsel), Washington, D.C., for Respondents. Lisa Madigan, Attorney General of Illinois, Matthew Dunn, Chief, Environmental Enforcement/ 3
    92. Asbestos Litigation Division, Ann Alexander, Environmental Counsel and Assistant Attorney General, Chicago, Illinois, for Amicus Curiae State of Illinois. Jon Bruning, Attorney General of Nebraska, Lincoln, Nebraska (David D. Cookson, Special Counsel to the Attorney General, Lincoln, Nebraska; Troy King, Attorney General of Alabama, Montgomery, Alabama; Gregory D. Stumbo, Office of the Attorney General of the Commonwealth of Kentucky, Frankfort, Kentucky; Wayne Stenehjem, Attorney General of North Dakota, Bismarck, North Dakota; Paul G. Summers, Attorney General of Tennessee, Nashville, Tennessee; Steve Carter, Office of the Indiana Attorney General, Indianapolis, Indiana, on the brief), for State Amici Curiae Nebraska, Alabama, Kentucky, North Dakota, Tennessee, and Indiana. Nancy Elizabeth Olinger, Assistant Attorney General (Greg Abbott, Attorney General of Texas, Barry R. McBee, First Assistant Attorney General, Edward D. Burbach, Deputy Attorney General for Litigation, Karen W. Kornell, Chief, Natural Resources Division, on the brief), Austin, Texas, for Amicus Curiae Texas Commission on Environmental Quality. Russell S. Frye, FryeLaw PLLC, Washington, D.C., for Amicus Curiae American Petroleum Institute. Jonathan F. Lewis, Clean Air Task Force, Boston, Massachusetts, for Amici Curiae Healthlink, Kentucky Resources Council, New England Clean Water Action, The Ohio Environmental Council, and Ohio Valley Environmental Council. Lisa Heinzerling, Georgetown University Law Center, Washington, D.C., for Amicus Curiae OMB Watch. 4
    93. SOTOMAYOR, Circuit Judge: This is a case about fish and other aquatic organisms. Power plants and other industrial operations withdraw billions of gallons of water from the nation’s waterways each day to cool their facilities. The flow of water into these plants traps (or “impinges”) large aquatic organisms against grills or screens, which cover the intake structures, and draws (or “entrains”) small aquatic organisms into the cooling mechanism; the resulting impingement and entrainment from these operations kill or injure billions of aquatic organisms every year. Petitioners here challenge a rule promulgated by the Environmental Protection Agency (“the EPA” or “the Agency”) pursuant to section 316(b) of the Clean Water Act (“CWA” or “the Act”), 33 U.S.C. § 1326(b),1 that is intended to protect fish, shellfish, and other aquatic organisms from being harmed or killed by regulating “cooling water intake structures” at large, existing power- producing facilities. For the reasons that follow, we grant in part and deny in part the petitions for review, concluding that certain aspects of the EPA’s rule are based on a reasonable interpretation of the Act and supported by substantial evidence in the administrative record, but remanding several aspects of the rule because they are inadequately explained or inconsistent with the statute, or because the EPA failed to give adequate notice of its rulemaking. We also dismiss for lack of jurisdiction one aspect of the petitions because there is no final agency action to review. BACKGROUND Our decision in Riverkeeper, Inc. v. EPA, 358 F.3d 174 (2d. Cir. 2004) 1 We refer to statutory provisions mentioned in the text by their section in the CWA and provide in citations both the section of the Act and the parallel section of the United States Code. 5
    94. (“Riverkeeper I”), which addressed challenges to the EPA’s rule governing cooling water intake structures at new – as opposed to existing – facilities discusses at length the procedural and factual background of the rulemaking pursuant to section 316(b). We presume familiarity with Riverkeeper I and provide here only a brief overview of the statute and the various stages of the rulemaking. These consolidated petitions for review concern a final rule promulgated by the EPA regarding the water that large, existing power plants withdraw from rivers, lakes, and other waterways of the United States to cool their facilities. See 40 C.F.R. § 125.91(a). This cooling process requires power plants to extract billions of gallons of water per day from the nation’s waters, thereby impinging and entraining a huge number of aquatic organisms. Riverkeeper I, 358 F.3d at 181. Indeed, a single power plant can kill or injure billions of aquatic organisms in a single year. Id. Cognizant of this problem, Congress in 1972 amended the CWA, 33 U.S.C. §§ 1251-1387, to regulate cooling water intake structures. See Federal Water Pollution Control Act Amendments of 1972, Pub. L. No. 92-500, 86 Stat. 816 (1972). We have described Congress’s regulation of such structures as “something of an afterthought,” Riverkeeper I, 358 F.3d at 186 n.12, given that the directive appears in a section of the Act addressing the seemingly unrelated issue of thermal pollution, see CWA § 316(a), 33 U.S.C. § 1326(a). The Act, as amended, provides that “[a]ny standard established pursuant to section 1311 of this title [CWA section 301] or section 1316 of this title [CWA section 306] and applicable to a point source shall require that the location, design, construction, and capacity of cooling water intake structures reflect the best technology available for minimizing adverse environmental impact.” 6
    95. CWA § 316(b), 33 U.S.C. § 1326(b). The provisions of the Act cross-referenced in section 316(b) direct the EPA to issue rules regulating the discharge of pollution from existing point sources, CWA § 301, 33 U.S.C. § 1311, and new point sources, CWA § 306, 33 U.S.C. § 1316.2 As we noted in Riverkeeper I, “[w]hen the EPA established new source performance discharge standard[s] . . . it ought then to have regulated . . . intake structures . . . .” 358 F.3d at 185 (internal quotation marks omitted; emphasis in original). Put differently, section 316(b) required the EPA to promulgate regulations for cooling water intake structures at the same time that it established pollution discharge standards pursuant to sections 301 and 306. The EPA’s first attempt at regulation under section 316(b), however, was remanded by the Fourth Circuit in 1977 on procedural grounds, and years passed without the EPA issuing new rules. Id. at 181 (citing Appalachian Power Co. v. Train, 566 F.2d 451 (4th Cir. 1977)). Environmental groups ultimately sued the EPA and won a consent decree, pursuant to which the Agency established a timetable to issue rules pursuant to Section 316(b) in three “phases.” Id. & n.3. Phase I – addressed in Riverkeeper I – governs new facilities; Phase II – addressed here – covers large, existing power plants; and Phase III will regulate existing power plants not governed by Phase II, as well as other industrial facilities. See Riverkeeper, Inc. v. Whitman, No. 93 Civ. 0314 (AGS), 2001 WL 1505497, at *1 n.3 (S.D.N.Y. Nov. 27, 2001). Our interpretation of section 316(b) is informed by the two provisions it cross- references, CWA sections 301 and 306. Section 301 sets forth a framework under which 2 A “point source” is “any discernible, confined and discrete conveyance . . . from which pollutants are or may be discharged.” 33 U.S.C. § 1362(14). 7
    96. limitations on the discharge of pollutants from existing sources would become more stringent over time. CWA § 301(b), 33 U.S.C. § 1311(b); see Riverkeeper I, 358 F.3d at 185. Section 301(b)(1)(A) required the EPA, beginning in 1977, to set effluent limitations for existing sources based on “the best practicable control technology currently available,” or “BPT.” CWA § 301(b)(1)(A), 33 U.S.C. § 1311(b)(1)(A). By 1989, existing source effluent limitations were to be based on the more stringent “best available technology economically achievable,” or “BAT.” CWA § 301(b)(2)(A), 33 U.S.C. § 1311(b)(2)(A). Additionally, section 306 requires the EPA to establish “standards of performance” for the control of the discharge of pollutants from new sources based on “the best available demonstrated control technology,” a standard that “reflects the greatest degree of effluent reduction.” CWA § 306(a)(1), 33 U.S.C. § 1316(a)(1). In section 316(b), Congress established yet another standard to govern cooling water intake structures, which requires such structures to reflect the “best technology available for minimizing adverse environmental impact,” or “BTA.” CWA § 316(b), 33 U.S.C. § 1326(b). We noted in Riverkeeper I that “[a]lthough the EPA is permitted to consider a technology’s cost in determining whether it is ‘practicable,’ ‘economically achievable,’ or ‘available,’ it should give decreasing weight to expense as facilities have time to plan ahead to meet tougher restrictions.” 358 F.3d at 185 (citations omitted). Additionally, we observed that “[b]ecause section 316(b) refers to sections 301 and 306 but provides a different standard (‘best technology available for minimizing adverse environmental impact’ instead of, for example, ‘best available demonstrated control technology’) and does not explicitly provide that regulations pursuant to section 316(b) are subject to the requirements of sections 301 and 306, we think it is permissible for the EPA to look to those sections for guidance but to decide that not every statutory directive 8
    97. contained therein is applicable” to rulemaking under section 316(b). Id. at 187. With this general background in mind, we consider Phases I and II of the EPA’s rulemaking. I. The Phase I Rule On December 18, 2001, the EPA issued its first rule (“the Phase I Rule”) governing cooling water intake structures for new – as opposed to existing – facilities. Regulations Addressing Cooling Water Intake Structures for New Facilities; Final Rule, 66 Fed. Reg. 65,256 (Dec. 18, 2001) (codified at 40 C.F.R. pts. 9, 122-25). The Phase I Rule established a two-track approach to regulating cooling water intake systems at new facilities, under which a new facility could choose one of two “tracks” to comply with the statute. Track I created national intake capacity and velocity standards based on closed-cycle cooling technology,3 which the EPA deemed the best technology available for minimizing adverse environmental impacts. See Riverkeeper I, 358 F.3d at 182-83. Track II did not require the use of any specific technology so long as the facility “can show, in a demonstration study, ‘that the technologies employed will reduce the level of adverse environmental impact . . . to a comparable level to that which’ would be achieved applying Track I’s capacity and velocity requirements.” Id. at 183 (quoting 40 C.F.R. § 125.84(d)(1)). 3 As we noted in Riverkeeper I, Cooling water systems fall into three groups. “Once-through” systems take water in, use it to absorb heat, and return the water to its source at a higher temperature. “Closed-cycle” systems recirculate the water (after allowing it to cool off in a reservoir or tower before being reused) and add water to the system only to replace that which is lost through evaporation. Closed-cycle systems, therefore, withdraw far less water than once-through systems. Dry cooling systems . . . use air drafts to transfer heat, and, as their name implies, they use little or no water. 358 F.3d at 182 n.5 (internal citations omitted). 9
    98. Environmental and industry groups challenged certain aspects of the rule, including, inter alia, the part of the Track II procedure allowing power plants to comply with section 316(b) by undertaking so-called “restoration measures,” such as restocking the waterbody with fish, reclaiming abandoned mines to reduce drain-off, or removing barriers to fish migration, to maintain fish and shellfish in a waterbody at certain levels. In Riverkeeper I, we upheld most aspects of the Phase I Rule, but remanded the provisions relating to the Track II restoration option. We found that the restoration option was inconsistent with section 316(b)’s requirement that the EPA minimize adverse environmental impacts by regulating the “‘location, design, construction, and capacity of cooling water intake structures’” because this option has nothing to do with the location, design, construction, or capacity of such structures. Id. at 189 (quoting CWA § 316(b), 33 U.S.C. § 1326(b)). Given this, we held that the EPA had impermissibly exceeded its authority in allowing Phase I facilities to use these restoration measures to comply with regulations implementing the statute. Id. II. The Phase II Rule On July 9, 2004, the EPA issued a final rule, pursuant to the second phase of the consent decree (“the Phase II Rule” or “the Rule”), that governs cooling water intake structures at large, existing power plants. See Final Regulations to Establish Requirements for Cooling Water Intake Structures at Phase II Existing Facilities, 69 Fed. Reg. 41,576 (July 9, 2004) (codified at 40 C.F.R. pts. 9, 122-125). The Phase II Rule covers existing facilities that are “point sources” and that, as their primary activity, “both generate[] and transmit[] electric power, or generate[] electric power but sell[] it to another entity for transmission,” “use[] or propose[] to use cooling water intake structures with a total design intake flow of 50 million gallons per day (MGD) or 10
    99. more,” and “use[] at least 25 percent of water withdrawn exclusively for cooling purposes.” 40 C.F.R. § 125.91. Although we will discuss the specifics of the Rule with respect to each challenge, we provide here an overview of the Rule. The Phase II Rule sets forth five compliance alternatives. See 40 C.F.R. § 125.94(a). Section 125.94(a) requires that a facility select and implement one of the following “for establishing best technology available for minimizing adverse environmental impact”: (1)(i) You may demonstrate to the Director that you have reduced, or will reduce, your flow commensurate with a closed-cycle recirculating system. In this case, you are deemed to have met the applicable performance standards and will not be required to demonstrate further that your facility meets the impingement mortality and entrainment performance standards specified in paragraph (b) of this section. . . .; or (ii) You may demonstrate to the Director that you have reduced, or will reduce, your maximum through-screen design intake velocity to 0.5 ft/s or less. In this case, you are deemed to have met the impingement mortality performance standards and will not be required to demonstrate further that your facility meets the performance standards for impingement mortality specified in paragraph (b) of this section and you are not subject to the requirements in §§ 125.95, 125.96, 125.97, or 125.98 as they apply to impingement mortality. However, you are still subject to any applicable requirements for entrainment reduction . . . .[;] (2) You may demonstrate to the Director that your existing design and construction technologies, operational measures, and/or restoration measures meet the performance standards specified in paragraph (b) of this section and/or the restoration requirements in paragraph (c) of this section[;] (3) You may demonstrate to the Director that you have selected, and will install and properly operate and maintain, design and construction technologies, operational measures, and/or restoration measures that will, in combination with any existing design and construction technologies, operational measures, and/or restoration measures, meet the performance standards specified in paragraph (b) of this section and/or the restoration requirements in paragraph (c) of this section; (4) You may demonstrate to the Director that you have installed, or will install, and properly operate and maintain an approved design and construction technology in accordance with § 125.99(a) or (b); or 11
    100. (5) You may demonstrate to the Director that you have selected, installed, and are properly operating and maintaining, or will install and properly operate and maintain design and construction technologies, operational measures, and/or restoration measures that the Director has determined to be the best technology available to minimize adverse environmental impact for your facility in accordance with paragraphs (a)(5)(i) or (ii) of this section. . . . 40 C.F.R. § 125.94(a). The Phase II Rule does not require large, existing power plants to install closed- cycle cooling systems, although a facility with such a system (or one whose intake flow is commensurate with that of a closed-cycle system) will be considered in compliance with the Rule. 40 C.F.R. § 125.94(a)(1)(i). The Rule instead references national performance standards, discussed below, that “are based on consideration of a range of technologies that EPA has determined to be commercially available for the industries affected as a whole.” 69 Fed. Reg. at 41,598-99. And rather than limiting BTA to technologies based on closed-cycle cooling systems, the EPA designated a “suite” of technologies – including fine- and wide-mesh wedgewire screens, aquatic filter barrier systems, barrier nets, and fish return systems, among others, id. at 41,599; see also 40 C.F.R. § 125.99(a) – as BTA for large, existing power plants. Section 125.94(b) establishes national performance standards to be achieved through one of the compliance alternatives set forth in section 125.94(a). With respect to impingement mortality, it provides that facilities choosing “compliance alternatives in paragraphs (a)(2), (a)(3), or (a)(4) of this section . . . must reduce impingement mortality for all life stages of fish and shellfish by 80 to 95 percent from the calculation baseline.”4 Id. § 125.94(b)(1). With 4 The “calculation baseline” is “an estimate of impingement mortality and entrainment that would occur” at a specific site based on a number of quantitative assumptions regarding intake velocity and the location and design of the site’s intake structures. 40 C.F.R. § 125.93. The regulation also permits a site’s specific historical and current data on impingement and 12
    101. respect to entrainment, facilities that choose compliance alternatives in paragraphs (a)(1)(ii), (a)(2), (a)(3), or (a)(4) of this section . . . must also reduce entrainment of all life stages of fish and shellfish by 60 to 90 percent from the calculation baseline if: (i) [the] facility has a capacity utilization rate of 15 percent or greater, and (ii)(A) . . . uses cooling water withdrawn from a tidal river, estuary, ocean, or one of the Great Lakes; or (B) . . . uses cooling water withdrawn from a freshwater river or stream and the design intake flow of your cooling water intake structures is greater than five percent of the mean annual flow. Id. § 125.94(b)(2). Section 125.94(c) permits facilities to comply with the Rule by implementing restoration measures “in place of or as a supplement to installing design and control technologies and/or adopting operational measures that reduce impingement mortality and entrainment.” Id. § 125.94(c). In order to adopt restoration measures under the Rule, a facility must demonstrate that “meeting the applicable performance standards or site-specific requirements through the use of design and construction technologies and/or operational measures alone is less feasible, less cost-effective, or less environmentally desirable than meeting the standards . . . through the use of restoration measures.” Id. § 125.94(c)(1). Moreover, the restoration measures implemented by the facility must produce ecological benefits “at a level that is substantially similar” to what would be achieved by meeting the national performance standards of section 125.94(b). Id. § 125.94(c)(2). The compliance provision of section 125.94(a)(5) permits what is in effect a site- specific compliance alternative to the generally applicable performance standards in two entrainment to serve as a basis for this baseline. Id. 13
    102. circumstances. In the first circumstance (“the cost-cost compliance alternative” or “the cost-cost variance”), if a facility demonstrates that its compliance costs “would be significantly greater than the costs considered by the Administrator,” the permitting authority must make a site- specific determination of BTA that is “as close as practicable to the applicable performance standards . . . without resulting in costs that are significantly greater than the costs considered by the Administrator” in establishing those standards. 40 C.F.R. § 125.94(a)(5)(i). In the second circumstance (“the cost-benefit compliance alternative” or “the cost-benefit variance”), the permitting authority must make a site-specific determination of BTA that is “as close as practicable” to the national performance standards if a facility demonstrates that its compliance costs would be “significantly greater than the benefits of complying” with the performance standards at the facility. Id. § 125.94(a)(5)(ii). For those facilities installing technologies designated as BTA, section 125.94(d) allows the national performance standards set forth in section 125.94(b) to be satisfied by demonstrating compliance with a technology installation and operation plan (“TIOP”), which concerns, inter alia, a facility’s installation, operation and maintenance of BTA. As the Rule is enforced through the permitting process under the National Pollutant Discharge Elimination System (“NPDES”),5 section 125.94(d)(1) provides that a facility that uses one of the compliance methods other than closed-cycle cooling may request that compliance with the national performance standards during the first permit cycle be determined with respect to whether the facility has complied with the TIOP it submitted with its permit application. Section 5 The NPDES process is promulgated under CWA section 402(a)(1), 33 U.S.C. § 1342(a)(1). 14
    103. 125.94(d)(2) authorizes facilities to request that compliance during subsequent permit terms be determined based on whether a facility remains in compliance with its TIOP, and in accordance with any necessary revisions, “if applicable performance standards are not being met.” 40 C.F.R. § 125.94(d)(2). Finally, section 125.94(f) applies solely to nuclear power facilities. It provides that if a nuclear facility’s compliance with the Rule would conflict with a safety requirement established by the Nuclear Regulatory Commission, the EPA must make a site-specific determination of BTA that would not conflict with the Commission’s safety requirement. 40 C.F.R. § 125.94(f). For purposes of judicial review, the Phase II Rule was promulgated on July 23, 2004. See 69 Fed. Reg. at 41,576. Three sets of petitioners, discussed below, brought timely challenges to the Rule.6 DISCUSSION I. Standard of Review We have jurisdiction to review this Rule pursuant to CWA section 509(b)(1), 33 U.S.C. § 1369(b)(1). See Riverkeeper I, 358 F.3d at 183 (stating that the Phase I Rule is covered by the jurisdictional grant of § 1369(b)(1)). As we explained in Riverkeeper I, our substantive review is twofold. “First, we examine the regulation against the statute that contains the EPA’s charge.” Id. at 184. If Congress “has directly spoken to the precise question at issue” and its 6 The parties filed petitions for review here as well as in several of our sister circuits. The petitions were consolidated in the Ninth Circuit by order of the judicial panel on multi-district litigation pursuant to 28 U.S.C. §§ 1407 and 2112(a)(3). The Ninth Circuit thereafter transferred the case here pursuant to 28 U.S.C. § 2112(a)(5). 15
    104. intent is clear, we “must give effect to the unambiguously expressed intent of Congress.” Chevron U.S.A., Inc. v. Natural Res. Def. Council, Inc., 467 U.S. 837, 842-43 (1984). If, however, the statute is silent or ambiguous, we ask whether “the agency’s answer is based on a permissible construction of the statute.” Id. at 843. Second, if the agency has followed Congress’s unambiguously expressed intent or permissibly construed an ambiguous statute, “we measure the regulation against the record developed during the rulemaking, but we ‘hold unlawful’ the agency’s regulation only if it is ‘arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law.’” Riverkeeper I, 358 F.3d at 184 (quoting 5 U.S.C. § 706(2)(A)). “Normally, we must deem arbitrary and capricious an agency rule where ‘the agency has relied on factors which Congress has not intended it to consider, entirely failed to consider an important aspect of the problem, offered an explanation for its decision that runs counter to the evidence before the agency, or is so implausible that it could not be ascribed to a difference in view or the product of agency expertise.’” Waterkeeper Alliance, Inc. v. EPA, 399 F.3d 486, 498 (2d Cir. 2005) (quoting Motor Vehicle Mfrs. Ass’n v. State Farm Mut. Auto. Ins. Co., 463 U.S. 29, 43 (1983) (internal quotation marks and citations omitted)). Finally, our review has a procedural dimension. The Administrative Procedure Act (“APA”) requires that notice of proposed rulemaking be published in the Federal Register, 5 U.S.C. § 553(b)(3), and that interested parties be allowed an opportunity to comment on proposed rules, id. § 553(c). Where an agency fails to comply with the APA’s notice and comment provisions, we remand to the agency for further proceedings. See Sprint Corp. v. FCC, 315 F.3d 369, 371 (D.C. Cir. 2003) (“Because the [agency] failed to provide adequate notice and 16
    105. opportunity to comment, we grant the petition and remand the case to the [agency].”). II. The Petitions for Review The state petitioners7 and the self-styled environmental petitioners8 challenge the Rule on similar grounds. Their petitions contain the following arguments: (1) the EPA exceeded its authority in rejecting closed-cycle cooling as BTA for existing facilities generally, and the Agency’s rejection of closed-cycle cooling as BTA for facilities on sensitive waterbodies is not entitled to deference because the decision was made at the direction of the Office of Management and Budget (“OMB”); (2) the EPA exceeded its authority by establishing ranges of acceptable performance rather than a single-numeric performance standard; (3) the CWA does not allow restoration measures as a means of compliance; (4) the EPA failed to give adequate notice that it would allow site-specific determinations of BTA based on cost-cost analysis, and the EPA impermissibly construed the statute to allow site-specific determinations of BTA based on cost- benefit analysis; (5) the provision allowing that compliance with the performance standards be determined by establishing compliance with a facility’s TIOP is unauthorized and violates the rulemaking requirement of notice and comment; and (6) the Agency has classified certain new constructions as “existing facilities” contrary to the definitions set forth in the Phase I Rule without providing adequate notice and opportunity for comment. 7 Rhode Island, Connecticut, Delaware, Massachusetts, New Jersey, and New York. 8 Riverkeeper, Inc., Natural Resources Defense Council, Waterkeeper Alliance, Soundkeeper, Inc., Scenic Hudson, Inc., Save the Bay–People for Narragansett Bay, Friends of Casco Bay, American Littoral Society, Delaware Riverkeeper Network, Hackensack Riverkeeper, Inc., New York/New Jersey Baykeeper, Santa Monica Baykeeper, San Diego Baykeeper, California Coastkeeper, Columbia Riverkeeper, Conservation Law Foundation, and Surfrider Foundation. 17
    106. Three groups of industry petitioners, which we will refer to collectively as the “industry petitioners” or individually as Entergy Corporation (“Entergy”), the Utility Water Act Group (“UWAG”),9 and PSEG Fossil LLC and PSEG Nuclear LLC (“PSEG”), advance various challenges to the Phase II Rule. Their challenges raise the following arguments: (1) section 316(b) of the CWA does not apply to existing facilities; (2) the Agency’s definition of “adverse environmental impact” is insufficiently supported by the record; (3) the EPA’s assumption of zero entrainment survival is insufficiently supported by the record; (4) the EPA improperly requires evaluation of qualitative non-use benefits in site-specific cost-benefit analyses; (5) the Agency failed to account for the Rule’s disproportionate impact on nuclear facilities; (6) the EPA gave inadequate notice of the independent-supplier provision; and (7) the Agency provided no notice of its post-rulemaking definition of “Great Lakes.” The industry petitioners also seek to preserve the right on this petition for review to raise new challenges to the Rule if we remand significant aspects of it. We consider first the challenges raised by the state and environmental petitioners and then will turn to the industry petitioners’ challenges. III. The State and Environmental Petitioners A. Determination of BTA Perhaps the most significant challenge to the Phase II Rule is the petitioners’ contention that the EPA exceeded its authority in rejecting closed-cycle cooling, and selecting instead the suite of technologies, as the “best technology available” as required by section 316(b), 33 U.S.C. § 1326(b), in large part because the Agency engaged in improper cost considerations. 9 UWAG petitions this court in conjunction with the Appalachian Power Company and the Illinois Energy Association. 18
    107. This challenge requires us at the outset to determine to what extent, if any, the EPA can consider cost when selecting “the best technology available for minimizing adverse environmental impact” under the statute. 1. Cost Analysis Pursuant to Sections 301 and 306 Section 316(b) does not itself set forth or cross-reference another statutory provision enumerating the specific factors that the EPA must consider in determining BTA. The statute, however, does make specific reference to CWA sections 301 and 306, which we have taken previously as “an invitation” to look to those sections for guidance in “discerning what factors Congress intended the EPA to consider in determining” BTA. Riverkeeper I, 358 F.3d at 186. We look to each of these statutes in turn. Section 301(b)(1)(A) established the BPT standard that governed the effluent limitations applicable to existing sources through 1989. Congress provided that, in determining BPT, the Agency could consider “the total cost of application of technology in relation to the effluent reduction benefits to be achieved from such application.” CWA § 304(b)(1)(B), 33 U.S.C. § 1314(b)(1)(B). As noted above, however, the CWA created standards that were to become increasingly stringent over time, and in 1989, the more lenient BPT standard for existing sources was replaced by the BAT standard of section 301(b)(2)(A), in which Congress provided that the EPA could consider only “the cost of achieving such effluent reduction.” CWA § 304(b)(2)(B), 33 U.S.C. § 1314(b)(2)(B). Notably omitted from the list of permissible factors to which the EPA could look in determining BAT was the cost of technology in relation to the benefits that technology could achieve. This shift from BPT to BAT fundamentally altered the way in which the EPA 19
    108. could factor cost into its CWA determinations. Indeed, in analyzing BTP and BAT, the Supreme Court stated that in “assessing BAT[,] total cost is no longer to be considered in comparison to effluent reduction benefits,” as it had been in assessing BPT. EPA v. Nat’l Crushed Stone Ass’n, 449 U.S. 64, 71 (1980). The Court indicated that the less stringent BPT standard had allowed for a “limited cost-benefit analysis” intended to “‘limit the application of technology only where the additional degree of effluent reduction is wholly out of proportion to the costs of achieving such marginal level of reduction.’” Id. at 71 n.10 (quoting Remarks of Senator Muskie reprinted in Legislative History of the Water Pollution Control Act Amendments of 1972 (Committee Print compiled for the Senate Committee on Public Works by the Library of Congress) Ser. No. 93-1, p. 170 (1973)). In determining BAT, by contrast, the EPA may consider cost as a factor to a limited degree, see id., but only as to whether the cost of a given technology could be reasonably borne by the industry and not the relation between that technology’s cost and the benefits it achieves, Riverkeeper I, 358 F.3d at 195. Section 306, which governs the effluent limitations that apply to new sources, provides that a “standard of performance” established by the EPA must reflect the “best available demonstrated control technology.” CWA § 306(a)(1), 33 U.S.C. § 1316(a)(1). In language identical to the text of § 304(b)(2)(B) governing BAT, Congress provided that in establishing standards of performance, the EPA “shall take into consideration the cost of achieving such effluent reduction,” CWA § 306(b)(1)(B), 33 U.S.C. § 1316(b)(1)(B), but did not require the EPA to conduct cost-benefit analysis. Nat’l Wildlife Fed’n v. EPA, 286 F.3d 554, 570 (D.C. Cir. 2002) (“[S]ection 306 requires that, when setting the [new source performance standards], the Administrator must take costs into consideration, but does not require that she conduct a 20
    109. cost-benefit analysis.”). Sections 301 and 306 of the CWA thus demonstrate that, after 1989, cost is a lesser, more ancillary consideration in determining what technology the EPA should require for compliance under those sections. The shift from the BPT standard to the more stringent BAT one clearly signaled Congress’s intent to move cost considerations under the CWA from a cost-benefit analysis to a cost-effectiveness one. We understand the difference between these two analyses to turn on the difference between means and ends. Cost-benefit analysis, like BPT, compares the costs and benefits of various ends, and chooses the end with the best net benefits. By contrast, cost- effectiveness considerations, like BAT, determine which means will be used to reach a specified level of benefit that has already been established.10 Given the above and considering the parallel language of sections 304(b)(2)(B) and 306(b)(1)(B), the reasoning of National Crushed Stone strongly suggests that cost-benefit analysis is no longer permitted under those sections of the CWA. 2. Cost Analysis Pursuant to Section 316(b) As already noted, section 316(b) does not itself set forth the factors that the Agency can consider in determining the “best technology available for minimizing adverse environmental impact.” The BTA standard of section 316(b), however, is linguistically similar to the BAT standard of section 301 and the standard that applies to new sources under 10 See, e.g., OMB Circular A-94, Guidelines and Discount Rates for Benefit-Cost Analysis of Federal Programs, Appendix A (1992) (defining “benefit-cost analysis” as “[a] systematic quantitative method of assessing the desirability of government projects or policies when it is important to take a long view of future effects and a broad view of possible side-effects” and “cost-effectiveness” as “[a] systematic quantitative method for comparing the costs of alternative means of achieving the same stream of benefits or a given objective”). 21
    110. section 306, and to the extent that cost-benefit analysis is precluded under those statutes, one might reasonably conclude that it is similarly not permitted under section 316(b). We conclude in any event that the language of section 316(b) itself plainly indicates that facilities must adopt the best technology available and that cost-benefit analysis cannot be justified in light of Congress’s directive. We stated in Riverkeeper I that the EPA can consider cost in establishing BTA, but only in a limited fashion and not as a primary consideration. Indeed, “[w]ith respect to costs, ‘the Administrator must inquire into the initial and annual costs of applying the technology and make an affirmative determination that those costs can be reasonably borne by the industry.’” Riverkeeper I, 358 F.3d at 195 (quoting Chem. Mfrs. Ass’n v. EPA, 870 F.2d 177, 262 (5th Cir. 1989)) (emphasis added). While the statutory language suggests that the EPA may consider costs in determining BTA, in that a technology that cannot not be reasonably borne by the industry is not “available” in any meaningful sense, cost-benefit analysis is not similarly supported by the language or purpose of the statute. Section 316(b) expressly requires a technology-driven result, cf. Natural Res. Def. Council, Inc. v. EPA, 822 F.2d 104, 123 (D.C. Cir. 1987) (“[T]he most salient characteristic of [the CWA’s] statutory scheme, articulated time and again by its architects and embedded in the statutory language, is that it is technology-forcing.”), not one driven by cost considerations or an assessment of the desirability of reducing adverse environmental impacts in light of the cost of doing so. A selection of BTA based on cost-benefit considerations is thus impermissibly cost-driven, but a selection based in part on cost-effectiveness considerations, while taking cost into account, remains technology-driven. The statute therefore precludes cost- benefit analysis because “Congress itself defined the basic relationship between costs and 22
    111. benefits.” Am. Textile Mfrs. Inst., Inc. v. Donovan, 452 U.S. 490, 509 (1981). Moreover, this conclusion is further supported by the fact that Congress in establishing BTA did not expressly permit the Agency to consider the relationship of a technology’s cost to the level of reduction of adverse environmental impact it produces.11 “When Congress has intended that an agency engage in cost-benefit analysis, it has clearly indicated such intent on the face of the statute.” Id. at 510. Given the above, the EPA may permissibly consider cost in two ways: (1) to determine what technology can be “reasonably borne” by the industry and (2) to engage in cost- effectiveness analysis in determining BTA. Thus, the EPA must first determine what is the most effective technology that may reasonably be borne by the industry. In making this initial determination, the most effective technology must be based not on the average Phase II facility but on the optimally best performing Phase II facilities, see, e.g., Kennecott v. United States EPA, 780 F.2d 445, 448 (4th Cir. 1985) (“In setting BAT, EPA uses not the average plant, but the 11 This conclusion accords with the analysis in Riverkeeper I that the EPA may consider cost in establishing BTA pursuant to section 316(b), but only in a limited way. In our discussion of the EPA’s choice of closed-cycle, rather than dry, cooling as BTA for Phase I facilities, see 358 F.3d at 194-95, 194 n.22, we noted that “dry cooling costs more than ten times as much per year as closed-cycle wet cooling,” but emphasized that “it is estimated to reduce water intake by only an additional 5 percent relative to once-through cooling.” Id. at 194 (internal footnotes omitted). We acknowledged that dry cooling is both much more effective and much more expensive than closed-cycle cooling in absolute terms, but stressed that, as compared to the baseline of once-through cooling systems, the marginal benefits of dry cooling were small: “it is undeniably relevant that that difference represents a relatively small improvement over closed-cycle cooling at a very significant cost.” Id. at 194 n.22. In dicta, we characterized this mode of analysis as “relevant” and stated that it “adds a useful perspective,” id., but did not treat it as the fulcrum of our analysis. Ultimately, we deferred to the EPA’s determination insofar as it was based on the grounds that dry cooling was too expensive for industry reasonably to bear and that dry cooling has negative environmental effects best left to the considered judgment of the Agency. Id. at 195-96. 23
    112. optimally operating plant, the pilot plant which acts as a beacon to show what is possible.”), although, of course, the EPA must still ascertain whether the industry as a whole can reasonably bear the cost of the adoption of the technology, bearing in mind the aspirational and technology- forcing character of the CWA. This technology constitutes the benchmark for performance. Once this determination has been made, the EPA may then consider other factors, including cost- effectiveness, to choose a less expensive technology that achieves essentially the same results as the benchmark.12 For example, assuming the EPA has determined that power plants governed by the Phase II Rule can reasonably bear the price of technology that saves between 100 - 105 fish, the EPA, given a choice between a technology that costs $100 to save 99 - 101 fish and one that costs $150 to save 100 - 103 fish (with all other considerations, like energy production or efficiency, being equal), could appropriately choose the cheaper technology on cost-effectiveness grounds. Cost-benefit analysis, however, is not permitted under the statute because, as noted, Congress has already specified the relationship between cost and benefits in requiring that the 12 We note that the EPA is by no means required to engage in cost-effectiveness analysis. Indeed, to require the Agency to conduct cost-effectiveness analysis would transform such analysis into a primary factor in choosing BTA, which clearly is contrary to the technology- forcing principle that animates the CWA. Equally important, we note that the Agency may also depart from this performance benchmark because of other permissible considerations aside from cost, for instance, energy efficiency or environmental impact. See Riverkeeper I, 358 F.3d at 195-96 (noting “the EPA was permitted to consider . . . energy efficiency in determining the ‘best technology available’” and could also factor in environmental impact). While the EPA has indicated throughout the record and its briefing before us that its determination of BTA here included such considerations as energy efficiency and production concerns, we nevertheless must remand, as we explain below, for further explanation from the Agency. Accordingly, we express no view on the merits of the EPA’s determination regarding the other factors it claims influenced its decision. 24
    113. technology designated by the EPA be the best available.13 Cf. Am. Textile Mfrs. Inst., 452 U.S. at 509-10. The Agency accordingly could not make the policy decision, in the face of Congress’s determination that facilities use the best technology available, that an economically feasible level of reduction of impingement mortality and entrainment is not desirable in light of its cost. Indeed, in the example above, the EPA could not choose the cheaper technology on cost considerations under section 316(b) if the EPA had first determined that the power plants could reasonably bear the cost of technology that could save at least 102 fish. We nevertheless acknowledge that the comparable technologies considered by the Agency need not be identically effective for the Agency to engage in cost-effectiveness analysis. Were that the case, all that would be required would be the simple determination of which among competing technologies that achieved the same degree of reduction of adverse environmental impacts is the cheapest. Instead, the specified level of benefit is more properly understood as a narrowly bounded range, within which the EPA may permissibly choose between two (or more) technologies that produce essentially the same benefits but have markedly different costs. With these considerations in mind, we turn to the Rule as promulgated. 3. The Determination of BTA under the Phase II Rule As noted previously, unlike the Phase I Rule, the Phase II Rule does not require facilities to reduce intake flow to a level commensurate with the intake of closed-cycle systems. Instead, the Rule requires facilities to meet the national performance standards associated with the suite of technologies the EPA identified as BTA. Petitioners’ challenge here has two 13 For this reason, we reject Entergy’s argument that the Rule is improper because its cost exceeds its benefits. 25
    114. components. First, the state petitioners contend that closed-cycle cooling is the best technology available and that the EPA has exceeded its authority by promulgating a rule that does not require closed-cycle cooling, or the use of technologies producing a commensurate reduction of water usage for existing facilities in the same manner as the Phase I Rule required for new facilities.14 Second, the environmental petitioners argue that the EPA improperly rejected closed-cycle cooling as BTA for the largest facilities on the most sensitive waterbodies at the direction of OMB because it sought to maximize net economic benefits rather than to minimize adverse environmental impact. They further argue that the BTA standard of section 316(b) requires a commitment of the maximum resources economically feasible to the goal of eliminating adverse environmental impacts and that the statute does not permit the EPA to select BTA on the basis of cost-benefit analysis. For the reasons that follow, we conclude that the statute’s “best technology available” standard permits cost-effectiveness considerations to influence the choice among technologies whose performance does not essentially differ from the performance of the best- performing technology whose cost the industry reasonably can bear, but that the statute does not permit the EPA to choose BTA on the basis of cost-benefit analysis. As we explain below, however, the record is unclear as to the basis for the EPA’s selection of the suite of technologies as BTA, and we therefore remand for clarification of the basis for the Agency’s decision and potentially for a reassessment of BTA. 14 While the state petitioners frame their argument as a challenge to the site-specific compliance alternatives, their brief presses the view that closed-cycle cooling is the best technology available and that the EPA exceeded its authority in failing to require Phase II facilities to adopt it. 26
    115. The EPA stated in the Rule’s preamble that the BTA standard should be interpreted as “best technology available commercially at an economically practicable cost,” and explained that “an important component of economic practicability” is “the relationship of costs to environmental benefits.” 69 Fed. Reg. at 41,604. The EPA further explained that this inquiry required that “there should be some reasonable relationship between the cost of cooling water intake structure control technology and the environmental benefits associated with its use.” Id. (emphasis added). The EPA took this “economically practicable” concept directly from the text of a floor speech of a single representative – the only specific reference to section 316(b) in the congressional debates. See Riverkeeper I, 358 F.3d at 186 n.12. We noted in Riverkeeper I that the “paucity” of legislative history “counsels against imputing much specific intent to Congress beyond the section’s words themselves.” Id. Moreover, we find the EPA’s interpretation of section 316(b) problematic because its construction significantly resembles the less stringent, and now obsolete, BPT standard of section 301(b)(1)(A). As noted earlier, in setting forth the factors for the EPA to consider in establishing BPT under section 301(b)(1)(A) and the more stringent BAT under section 301(b)(2)(A), Congress made only one distinction: while the Agency could consider the relationship between cost and benefits in establishing BPT, CWA § 304(b)(1)(B), 33 U.S.C. § 1314(b)(1)(B), it could consider cost insofar as it can be “reasonably borne” by the industry, but not the relationship between cost and benefits, in establishing BAT, CWA § 304(b)(2)(B), 33 U.S.C. § 1314(b)(2)(B). Riverkeeper I, 358 F.3d at 195. This difference in how the EPA can consider cost under section 304(b) in establishing BPT and BAT is directly mirrored by the most significant textual distinction 27
    116. between sections 301(b)(1)(A) and 301(b)(2)(A) – the requirement that a technology be “practicable” under only the less stringent BPT standard. Compare CWA § 301(b)(1)(A), 33 U.S.C. § 1311(b)(1)(A) (BPT is the “best practicable control technology”) with CWA § 301(b)(2)(A), 33 U.S.C. 1311(b)(2)(A) (BAT is the “best available technology”). The use of the word “practicable,” therefore, when coupled with the permissible cost considerations under section 304, signals that Congress intended the EPA to strike a balance between cost and benefits in determining BPT. But the word “practicable” is missing from the more stringent BAT standard, under which Congress prohibited the EPA from considering the relation of cost to benefits. This omission is thus significant. See Russello v. United States, 464 U.S. 16, 23 (1983) (“[W]here Congress includes particular language in one section of a statute but omits it in another section of the same Act, it is generally presumed that Congress acts intentionally and purposely in the disparate inclusion or exclusion.” (quotation marks and citation omitted; alteration in original)). Because Congress also omitted “practicable” from section 316(b), we are troubled by the Agency’s interpretation of the statute to require “practicability” analysis here and its implicit corollary that the Agency can undertake a cost-benefit analysis in establishing BTA under section 316(b). Our concern with the EPA's determination with section 316(b) is further deepened by the Agency’s rejection of closed-cycle cooling and selection of a suite of technologies as the basis for BTA for existing facilities because the suite of technologies were the most “cost effective” option. 69 Fed. Reg. at 41,667. The EPA explained this decision on several grounds. It first noted that it was rejecting closed-cycle cooling as BTA because of (1) “its generally high costs (due to conversions),” (2) “the fact that other technologies approach the performance of this 28
    117. option,” and (3) “concerns for energy impacts due to retrofitting existing facilities, and other considerations.” Id. at 41,605. The EPA emphasized that it selected BTA based on its determination that “a national requirement to retrofit existing systems is not the most cost- effective approach and at many existing facilities, retrofits may be impossible or not economically practicable.” Id. It further explained that its rejection of closed-cycle cooling as BTA was based on “total social costs” and “lack of cost-effectiveness,” as well as “concerns regarding potential energy impacts.” Id. at 41,606. Given the EPA’s discussion, noted above, of economically practicability, it is unclear whether the Agency improperly weighed the benefits and the costs of requiring closed- cycle cooling. Indeed, a comparison between the cost of closed-cycle cooling and the monetized benefits of this technology appears to have played some role in the EPA’s rejection of this option as BTA. In the preamble to the proposed Rule, for instance, the EPA examined whether to require closed-cycle cooling on specific large bodies of waters and stated that “the incremental costs of [this closed-cycle cooling] option relative to the proposed option ($413 million) significantly outweigh the incremental benefits ($146 million).” 67 Fed. Reg. at 17,158. Other record evidence on the EPA’s rejection of closed-cycle cooling as BTA is a terse EPA memorandum indicating that a requirement commensurate with closed-cycle cooling for facilities on sensitive waterbodies would cost three times as much as the option ultimately adopted by the EPA and reduce entrainment, at most, by 1.33 times that option. Given the above indications that the EPA engaged in cost-benefit analysis, we remand for the EPA to explain its conclusions. At the outset, it is difficult to discern from the record how the EPA determined that the cost of closed-cycle cooling could not be reasonably 29
    118. borne by the industry.15 Additionally, the EPA did not explain its statement that the suite of technologies “approach[es]” the performance of closed-cycle cooling. We see no adequate comparison in the Rule’s proposal, the final Rule or its preamble, or the EPA’s submissions to this Court of the effectiveness of closed-cycle cooling and the group of technologies whose effectiveness provided the basis for the Phase II Rule’s performance standards.16 In a technical 15 Indeed, at one point in the Rule’s proposal, the EPA mentions that requiring closed- cycle cooling at 539 existing power plants nationwide subject to the Phase II Rule would cost upwards of $2.26 billion and could close nine power plants (about 1.6% of all Phase II facilities). 67 Fed. Reg. at 17,155. There is little discussion about whether the industry could reasonably bear this burden. We note that in Riverkeeper I, it appears the EPA supplied the court with better data on this question, noting that of the 83 facilities subject to the Phase I Rule, dry cooling compliance costs would equal on average more than 4% of revenue for all 83 producers and more than 10% of the revenue at 12 facilities (nearly 15% of all Phase I facilities), presenting a possibly high barrier to entry for new facilities. See Riverkeeper I, 358 F.3d at 194. We have found no comparable data in the record, nor has the EPA cited any. 16 Some limited evidence, however, is available in the record in intelligible form. In the Rule’s proposal, the EPA noted that closed-cycle systems “generally reduce the water flow from 72 percent to 98 percent, thereby using only 2 percent to 28 percent of the water used by once- through systems.” Proposed Regulations to Establish Requirements for Cooling Water Intake Structures at Phase II Existing Facilities; Proposed Rule, 67 Fed. Reg. 17,122, 17,189 (Apr. 9, 2002). The Agency went on to state that “[i]t is generally assumed that this would result in a comparable reduction in impingement and entrainment,” id., indicating that closed-cycle systems reduce the adverse impacts of impingement and entrainment by 72 to 98 percent. In a technical development document (“TDD”) for the proposal, however, the EPA disaggregated these data, stating that closed-cycle cooling systems use 96 to 98 percent less fresh water and 70 to 96 percent less salt water than once-through systems. TDD for the Proposed § 316(b) Phase II Existing Facilities Rule 4-1; see also Riverkeeper I, 358 F.3d at 194 n.22 (“[C]losed-cycle wet cooling systems use 96 to 98 percent less fresh water (and 70 to 96 percent less salt water) than similarly situated once-through systems.” (citing 66 Fed. Reg. at 65,273)). The EPA’s analysis in its proposal suggests that the disaggregated data indicate that closed-cycle cooling would reduce impingement mortality and entrainment by 96 to 98 percent at facilities that use fresh water and by 70 to 96 percent at facilities that use salt water. A 72 to 98 percent reduction of impingement mortality and entrainment, and the corresponding disaggregated percent reductions for facilities using salt and fresh water, differs from the Phase II requirement that facilities reduce impingement mortality by 80 to 95 percent and entrainment by 60 to 90 percent. These differences seem potentially significant, especially in determining whether this suite of BTA technologies achieve essentially the same result as closed-cycle cooling, but are neither explained 30
    119. area of this sort, it is difficult for judges or interested parties to determine the propriety of the Agency’s action without a justification for the action supported by clearly identified substantial evidence whose import is explained. The record evidence alone here, which consists in large part of a voluminous database compilation of studies that assess the efficacy of various technologies at different locations, is oblique, complicated, and insufficient to permit us to determine what the EPA relied upon in reaching its conclusion. As the Supreme Court has emphasized, “[o]ur recognition of Congress’ need to vest administrative agencies with ample power to assist in the difficult task of governing a vast and complex industrial Nation carries with it the correlative responsibility of the agency to explain the rationale and factual basis for its decision, even though we show respect for the agency’s judgment in both.” Bowen v. Am. Hosp. Ass’n, 476 U.S. 610, 627 (1986) (plurality opinion). The EPA was required to explain its judgment and the basis for it. Because the EPA purported to base its decision in large part on cost-effectiveness considerations, it was required to identify and explain any evidence indicating a minimal performance difference between comparable technologies, but it did not do so here. It stated only that the performance of the technologies it identified as BTA “approach” the performance of closed-cycle cooling.17 nor adequately compared for purposes of our review here. For instance, there does not appear to be any discussion regarding the seemingly large differences in the rates of impingement and entrainment reduction between closed-cycle cooling and the Phase II national performance standards. 17 The Agency, however, did provide some indication of the relative costs of closed-cycle cooling and the suite of technologies identified as BTA. The EPA stated in the preamble to the Rule that the “total social cost” of closed-cycle cooling would be “$3.5 billion per year,” 69 Fed. Reg. at 41,605, and that the “final rule will have total annualized social (pre-tax) costs of $389 million,” id. at 41,650. 31
    120. We therefore find it impossible to judge whether the performance of these technologies is essentially the same as the performance of closed-cycle cooling, or whether they simply are cheaper per percentage point of reduction in entrainment and impingement mortality. That is, on the record before us, it is impossible to tell whether the EPA based its decision on permissible cost-effectiveness analysis or exceeded its authority by relying impermissibly upon a cost-benefit analysis. To the extent that the record does not indicate the EPA’s basis, however, its statement that “the relationship of costs to environmental benefits is an important component of economic practicability,” 69 Fed. Reg. at 41,604, indicates that cost-benefit analysis, under the cover of considerations of “practicability,” was central to the Agency’s decisionmaking. In short, the EPA’s failure to explain its decision frustrates effective judicial review. If the EPA construed the statute to permit cost-benefit analysis, its action was not “based on a permissible construction of the statute.” Chevron, 467 U.S. at 843. It may also be that the EPA misunderstood or misapplied cost-effectiveness analysis. If so, its decision was arbitrary and capricious because the Agency relied on factors Congress has not intended it to consider. See Waterkeeper Alliance, 399 F.3d at 498. Finally, the EPA may have simply failed either to perform the required analysis or to explain adequately a decision that was within its authority to make. We cannot opine on this subject, because we must consider only those justifications that the EPA offered at the time of the rulemaking. See SEC v. Chenery, 318 U.S. 80, 87-88 (1943). Moreover, while the EPA could rely on factors other than impingement and entrainment in establishing BTA, such as negative environmental impacts or concerns about energy production and efficiency, see Riverkeeper I, 358 F.3d at 195-96, we are unable to determine, on the record before us, whether the EPA gave paramount consideration to an improper factor in determining 32
    121. BTA. We therefore remand for clarification of the basis for the Agency’s action and possibly for a new determination of BTA.18 4. Performance Standards Expressed as Ranges The Phase II Rule establishes performance standards expressed as an 80 to 95 percent reduction in impingement mortality and a 60 to 90 percent reduction in entrainment, which existing power plants must achieve, subject to certain exceptions, in order to be considered in compliance with the Rule. 40 C.F.R. § 125.94(b)(1), (2). The environmental petitioners challenge the Rule’s “wide and indeterminate ranges” as failing to constitute “precise single-level limitations based on the best technology available for minimizing adverse environmental impact” and argue that these ranges are inconsistent with Congress’s intent that there be a national standard under section 316(b). We agree in part and, because the EPA in reconsidering its selection of BTA on remand may alter the suite of technologies it originally selected, thereby causing a coordinate alteration in the performance ranges, we provide some guidance to the EPA insofar as the petitioners’ challenge touches on the limits of the Agency’s authority. Although the EPA may, in the circumstances to be discussed, set performance standards as ranges, it must 18 As previously noted, the environmental petitioners, supported by amicus curiae OMB Watch, have challenged the EPA’s decision to reject closed-cycle cooling as BTA for 59 facilities on the most sensitive waterbodies in part because of OMB’s participation in the rulemaking process. They contend that the EPA’s action is not entitled to deference because the EPA was improperly influenced by OMB in promulgating this aspect of the Phase II Rule. The petitioners and the EPA have also sought either to strike from the record or to supplement the record with certain OMB review documents. Because we have granted the petitioners’ challenge to the EPA’s determination of BTA without considering OMB’s role in interagency review, we do not reach the petitioner’s arguments regarding OMB’s involvement in the rulemaking and deny the motions to strike and to supplement as moot. See Waterkeeper Alliance, 399 F.3d at 524 n.34 (denying petitioners’ motion to supplement the record with OMB review documents as moot where the Court granted the petitions without considering the OMB review documents). 33
    122. require facilities to minimize the adverse environmental impacts attributable to their cooling water intake structures to the best degree they can. The petitioners note that the EPA has found that certain screens and filter systems can reduce impingement mortality by up to 99 percent and that similar technologies can produce 80 to 90 percent reduction in entrainment. 69 Fed. Reg. at 41,599. They contend that the CWA therefore requires the EPA to set BTA standards reflecting these best performers, see Texas Oil & Gas Ass’n v. EPA, 161 F.3d 923, 928 (5th Cir. 1998) (“Congress intended these [BAT] limitations to be based on the performance of the single best-performing plant in an industrial field.” (citation and internal quotation marks omitted)), particularly given the EPA’s acknowledgment that “[t]he higher end of the range is a percent reduction that available data show many facilities can and have achieved with the available technologies upon which the performance standards are based.” 69 Fed. Reg. at 41,600. The petitioners emphasize that the Rule’s ranges impermissibly fail to require facilities even to attempt to achieve performance equal to the upper bound of the prescribed ranges. According to the EPA, section 316(b) does not require a single-numeric standard applicable to all Phase II existing facilities, and expressing the performance standards as ranges is necessary to account for the variables involved in reducing impingement mortality and entrainment under local conditions at particular facilities. The EPA contends that “[b]ecause the Phase II requirements are applied in a variety of settings and to existing facilities of different types and sizes, no single technology is most effective for all facilities subject to the Rule.” The Agency argues that the technologies do not provide a fixed level of performance at all facilities and that their performance is affected by the nature of the waterbody, facility intake 34
    123. requirements, climatic conditions, and the waterbody’s biology. The EPA argues also that the permit process requires facilities to reduce impingement mortality and entrainment commensurate with the efficacy of the installed technologies, which it claims ensures that the installed technologies will be maintained to ensure their utmost efficacy.19 The difficulty with the EPA’s arguments is that the Rule does not require facilities to choose technologies that produce the greatest reduction possible. Our decision in Riverkeeper I sheds some light on the parties’ arguments. In that case, we discussed the differences between the two tracks in the Phase I Rule: Track I set forth precise velocity and capacity requirements while Track II permitted compliance via technologies that would achieve at least 90 percent of the reduction in impingement mortality and entrainment that compliance with Track I would yield. See 358 F.3d at 182-83. The petitioners in that case challenged the Track II provision on the ground that it deviated from the statutory requirement that the EPA establish a single level of performance applicable to all facilities. Id. at 187. The EPA argued that Tracks I and II reflected the same standard and that 10 percent is an acceptable margin of error given that measurements of reduction of impingement mortality and entrainment are necessarily inexact and depend upon natural fluctuations in animal populations and sampling errors. Id. at 188. In assessing the parties’ arguments, we stated that “the EPA, consistent with Congress’s intention that there be a national standard governing the discharge of pollutants, must 19 The specific provision requires that when a facility’s permit expires, any reissued permit must contain a requirement that “the facility . . . reduce impingement mortality and entrainment . . . commensurate with the efficacy at the facility of the installed design and construction technologies, operational measures, and/or restoration measures.” 40 C.F.R. § 125.98(b)(1)(iii). 35
    124. promulgate precise effluent limitations under sections 301 and 306 . . . .” Id. (emphasis added). We went on to note, however, that while pollutant concentration and the velocity and volume of water withdrawn can be measured accurately, impingement mortality and entrainment “cannot always be measured directly and with mathematical precision.” Id. at 189. We concluded that the EPA acted reasonably in specifying “how much ambiguity it is willing to tolerate in measuring compliance and what it considers a reasonable margin of error in comparing the performance of different technologies.” Id. In short, we acknowledged that the Track II performance requirements, unlike the Track I requirements, could not be measured precisely and that it was therefore reasonable to consider a margin of error in comparing performance under the two standards. This case is not entirely similar to Riverkeeper I because of the rationales that animate the EPA’s creation of the performance ranges in Phases I and II. The Phase II Rule generally require facilities to reduce impingement mortality and entrainment by the specified percent ranges from the calculation baseline. 40 C.F.R. § 125.94(b). These ranges, as explained by the EPA, are based on the reductions achievable by using various technologies. See 69 Fed. Reg. at 41,599. The EPA explained that it expressed the performance standards “in the form of ranges rather than a single performance benchmark because of the uncertainty inherent in predicting the efficacy of any one of these technologies.” Id. at 41,600. It stated further that the lower end of the range is the percent reduction it “expects all facilities could eventually achieve if they were to implement and optimize available design and construction technologies and operational measures on which the performance standards are based” and that the higher end of the range “is a percent reduction that available data show many facilities can and have achieved 36
    125. with the available technologies upon which the performance standards are based.” Id. Unlike Riverkeeper I, therefore, a margin of error from a relatively precise benchmark that is tolerable given measurement difficulties is not at issue here. Instead, the performance standards reflect the range of performance associated with various technologies identified as BTA. That performance, in turn, depends in part on local conditions and natural fluctuations. Id. Record evidence supports the EPA’s conclusion that the percent reduction of impingement mortality and entrainment is not completely within the control of a facility and therefore may not be precisely achieved by a facility. See TDD for the Final § 316(b) Phase II Existing Facilities Rule 4-3. Reducing these adverse environmental impacts is not as easily measured and controlled as are the discharge of pollutants and the capacity and flow rate of water intake.20 We therefore acknowledge that in many cases it may be difficult, as a practical matter, for the EPA or other permitting authority to predict which plants will be able to achieve the upper, as opposed to the lower, end of the ranges. This uncertainty, however, does not justify a rule that permits even those facilities that could achieve the upper end of a range to be deemed in compliance if they reach only the lower end, particularly when the EPA has acknowledged that many facilities “can and have” achieved reductions at the high end of the range. 69 Fed. Reg. at 41,600. Congress’s use of the superlative “best” in the statute cannot be read to mean that a facility that achieves the lower end of the ranges, but could do better, has complied with the law. 20 Nothing in Hooker Chems. & Plastics Corp. v. Train, 537 F.2d 620 (2d Cir. 1976), suggests the contrary. While we did announce in that case that performance ranges did not comport with the effluent limitations established by the CWA, id. at 630, the discharge limitations at issue there were easily measured, unlike the reductions in impingement and entrainment at issue in both this case and Riverkeeper I, which “cannot always be measured directly and with mathematical precision,” Riverkeeper I, 358 F.3d at 189. 37
    126. The statutory directive requiring facilities to adopt the best technology cannot be construed to permit a facility to take measures that produce second-best results, see Chevron, 467 U.S. at 843, especially given the technology-forcing imperative behind the Act, Natural Res. Def. Council, 822 F.2d at 123. Insofar as the EPA establishes performance standards instead of requiring facilities to adopt particular technologies, it must require facilities to choose the technology that permits them to achieve as much reduction of adverse environmental impacts as is technologically possible.21 For this reason, the EPA on remand should address these concerns if in its BTA determination, it retains performance ranges. B. Restoration Measures The Phase II Rule allows a facility to meet the national performance standards set 21 Although it may be difficult to know ex ante which plants can achieve the upper end of the range, this is at least in part because the technologies preferred by the EPA are somewhat new and untested. In future permitting cycles, permitting authorities will be likely to have a clearer notion of which facilities can feasibly achieve the upper end of the range. Finally, the upper end of the range established by the EPA, should it retain this provision on remand, should not be set at a level that many facilities “have achieved” with the installation of one or more of the technologies determined to be BTA but, as we noted earlier, at the best possible level of impingement and entrainment reduction the EPA determines these technologies can achieve. See, e.g., Kennecott, 780 F.2d at 448 (“In setting BAT, EPA uses not the average plant, but the optimally operating plant, the pilot plant which acts as a beacon to show what is possible.”). If, at a particular Phase II facility, the adoption of BTA technologies can achieve a 95% reduction in entrainment and impingement, it is unclear why, under our jurisprudence and the clear dictates of the CWA, the EPA could establish a performance standard that has placed the ceiling at the 90% threshold which “many” Phase II facilities “can and have” achieved with the same technology. See Am. Iron & Steel Institute v. EPA, 526 F.2d 1027, 1051 (3d Cir. 1975) (“It will be sufficient, for the purpose of setting the level of control under available technology, that there be one operating facility which demonstrates that the level can be achieved.”) (internal quotation marks and citations omitted). This would not require every Phase II facility to meet the upper end of the ranges, but only that each Phase II facility achieve the highest reduction it can with the installation of technologies determined by the EPA to be BTA. The performance ranges, if retained on remand, should accordingly reflect this understanding. 38
    127. forth in 40 C.F.R. § 125.94(b) through the use of restoration measures such as restocking fish killed by a cooling water system and improving the habitat surrounding the intake structure in order, as the EPA explains, “to provide additional flexibility to facilities in complying with the rule by eliminating or significantly offsetting the adverse environmental impact caused by the operation of a cooling water intake structure.” 69 Fed. Reg. at 41,609; 40 C.F.R. § 125.94(c). The state and environmental petitioners contend that the EPA exceeded its authority by allowing compliance with section 316(b) through restoration measures because Riverkeeper I held that the statute’s meaning is plain and that restoration measures cannot substitute for the “best technology available for minimizing adverse environmental impact” in cooling water intake structures. The EPA contends that its interpretation of the statute to permit restoration measures as a means of compliance is entitled to deference because it defined certain statutory terms in the Phase II Rule that it had not defined in the Phase I Rule. The EPA also relies on the Supreme Court’s holding in National Cable & Telecommunications Association v. Brand X Internet Services, 545 U.S. 967, 125 S. Ct. 2688 (2005), and our statement in Riverkeeper I limiting the decision’s reach to the Phase I Rule, to argue that our prior interpretation of the statute does not trump the Agency’s construction. We agree with the petitioners that Riverkeeper I held that the Agency’s decision to permit restoration measures in the Phase I Rule was not “based on a permissible construction of the statute,” Chevron, 467 U.S. at 843, and that this holding applies equally here. We began Riverkeeper I by noting that we were remanding the Phase I restoration provision because it “contradicts Congress’s clearly expressed intent.” 358 F.3d at 181. We went on to state that “however beneficial to the environment, [restoration measures] have nothing to do with the location, the design, the construction, or the capacity of cooling water intake 39
    128. structures, because they are unrelated to the structures themselves.” Id. at 189. “Restoration measures correct for the adverse environmental impacts of impingement and entrainment,” we noted, but “they do not minimize those impacts in the first place.” Id. (emphasis added). For this reason and others, we concluded in Riverkeeper I that the EPA had exceeded its authority in promulgating the Phase I Rule by allowing compliance with section 316(b) through restoration measures because this Rule was “plainly inconsistent” with the statute’s text and Congress’s intent. Id. at 189, 191. The EPA’s argument that Riverkeeper I is not binding on this issue here has three components. First, the EPA contends that our rejection of the restoration measures at issue in Riverkeeper I did not turn on the statute’s text, but instead was based on various other indicators of Congressional intent. The Agency makes much of Riverkeeper I’s brief discussion of Congress’s rejection of a proposed amendment to section 316(b) that would have explicitly allowed restoration measures and of the EPA’s support of that amendment because in its opinion, the existing language did not authorize restoration measures. Id. at 190-91. Second, the EPA argues that its interpretation of section 316(b) in the Phase II Rule is entitled to deference because the Rule defined certain statutory terms it had not defined in the previous rulemaking phase and that its reasonable interpretation of these terms is entitled to deference. Specifically, the Agency “defined” three statutory terms in the preamble: it (1) read the phrase “minimiz[e] adverse environmental impact” to let facilities “minimize adverse environmental impact by reducing impingement and entrainment, or to minimize adverse environmental impact by compensating for those impacts after the fact,” 69 Fed. Reg. at 41,628; (2) interpreted “reflect” to authorize it to consider the full range of technologies, including restoration measures, that 40
    129. minimize adverse environmental impact; and (3) viewed “restoration measures as part of the ‘design’ of a cooling water intake structure,” and “one of several technologies that may be employed . . . to minimize adverse environmental impact,” 69 Fed. Reg. at 41,637. Finally, the EPA relies on our statement in Riverkeeper I that our ruling on the Phase I Rule was not meant to “predetermine the factors and standard[s] applicable to Phases II and III of the rulemaking,” 358 F.3d at 186 n.13, and on the Supreme Court’s holding in Brand X that “[a] court’s prior judicial construction of a statute trumps an agency construction otherwise entitled to Chevron deference only if the prior court decision holds that its construction follows from the unambiguous terms of the statute and thus leaves no room for agency discretion.” 545 U.S. at —, 125 S. Ct. at 2700. We reject each of the EPA’s contentions. First, our primary conclusion in Riverkeeper I was that restoration measures are “plainly inconsistent” with the statute’s text, 358 F.3d at 189, and our statements regarding the legislative history of a proposed amendment, which we offered as ancillary, but not dispositive, support for our construction of the statute, in no way diminish the force of our conclusion that Congress unambiguously expressed its intent in the statute. See Chevron, 467 U.S. at 842-43 (“If the intent of Congress is clear, that is the end of the matter; for the court, as well as the agency, must give effect to the unambiguously expressed intent of Congress.”). Second, as to the EPA’s claim that its construction of the statute is entitled to deference because it has now interpreted certain statutory terms, our holding in Riverkeeper I was and remains clear: restoration measures contradict the unambiguous language of section 316(b). The EPA’s promulgation of the Phase II Rule obviously did nothing to alter the text of section 316(b), and the Agency cannot create ambiguity where none otherwise exists by defining statutory terms contrary to their plain meaning. Finally, as the foregoing analysis 41
    130. suggests, our decision in Riverkeeper I foreclosed the EPA from interpreting section 316(b) in the Phase II Rule to permit restoration measures as a means of complying with the statute, and, therefore, nothing in Brand X undermines the precedential value of our prior holding. Our statement in Riverkeeper I that we did not “mean to predetermine the factors and standard applicable to Phases II and III of the rulemaking,” was made in the narrow context of identifying “one reasonable reading” of particular statutory language relating to the standard for new and existing sources, not the restoration measures. 358 F.3d at 186 n.13. Where we held that the statutory language is unambiguous, Riverkeeper I is binding. Even assuming arguendo that we did not consider ourselves bound by Riverkeeper I, we are persuaded by its reasoning as applied here. Restoration measures are not part of the location, design, construction, or capacity of cooling water intake structures, Riverkeeper I, 358 F.3d at 189, and a rule permitting compliance with the statute through restoration measures allows facilities to avoid adopting any cooling water intake structure technology at all, in contravention of the Act’s clear language as well as its technology-forcing principle. As we noted in Riverkeeper I, restoration measures substitute after-the-fact compensation for adverse environmental impacts that have already occurred for the minimization of those impacts in the first instance. Id. The Agency’s attempt to define the word “minimize” to include “compensati[on] . . . after the fact,” 69 Fed. Reg. at 41,628, is simply inconsistent with that word’s dictionary definition: “to reduce to the smallest possible extent,” Webster’s Third New Int’l Dictionary 1438 (1986). Accordingly, the EPA impermissibly construed the statute by allowing compliance with section 316(b) via restoration measures, and we remand that aspect of the Rule. 42
    131. C. Site-Specific Compliance Alternatives As noted earlier, the Phase II Rule includes two site-specific compliance alternatives or variances from the generally applicable requirements. The cost-cost alternative authorizes a site-specific determination that “data specific to [a] facility demonstrate that the costs of compliance under . . . this section would be significantly greater than the costs considered by the Administrator . . . in establishing the applicable performance standards,” 40 C.F.R. § 125.94(a)(5)(i), while the cost-benefit alternative authorizes a site-specific determination that “data specific to [a] facility demonstrate that the costs of compliance under . . . this section would be significantly greater than the benefits of complying with the applicable performance standards.” Id. § 125.94(a)(5)(ii). If a facility makes either showing, the permitting authority “must make a site-specific determination of the best technology available” and impose “site-specific alternative requirements” that are “as close as practicable to the applicable performance standards.” Id. § 125.94(a)(5)(i), (ii). Petitioners challenge the cost-cost compliance alternative because, inter alia, they claim as a threshold matter that the Agency failed to comply with the APA’s notice and comment requirements by disclosing cost data for specific facilities that would be used in determining whether a facility qualifies for the cost-cost compliance alternative only at the time the final Rule was issued. Petitioners also challenge the cost-benefit compliance alternative on two substantive grounds. They contend that this alternative (1) impermissibly allows compliance with the statute to be based on cost-benefit analysis and (2) is analogous to a water-quality standard, which the Act permits only for thermal pollution. CWA § 316(a), 33 U.S.C. § 1326(a). We address each 43
    132. of these arguments in turn.22 1. Cost-Cost Compliance Alternative As already noted, a variance may be available to a facility pursuant to 40 C.F.R. § 125.94(a)(5)(i) if the facility’s compliance costs would be “significantly greater than” the costs considered by the Agency “in establishing the applicable performance standards.” This variance requires a calculation of compliance costs based on the suite of BTA technologies that the EPA has identified and promulgated in the final Rule. 69 Fed. Reg. at 41,644-46. We remand this provision because (1) the EPA did not give interested parties the requisite notice and opportunity to challenge the variance by failing to identify cost data for actual, named facilities, as opposed to model facilities, until after the notice and comment period had ended, Sprint Corp., 315 F.3d at 22 Section 316(b) does not specifically authorize the Agency to allow variances from generally applicable requirements. In Riverkeeper I, we accepted the argument that the EPA can allow variances even in the absence of explicit statutory authority. 358 F.3d at 193. Although the statutes to which section 316(b) refers contained variance provisions, we did not read them to require that section 316(b) permit (or by its silence prohibit) variances. Instead, we stated that [s]ection 316(b)’s silence with respect to variances does not . . . equal an unambiguous prohibition. In the absence of such a statutory bar, we think, consistent with precedent, that it is reasonable for the EPA to allow variances from regulations promulgated pursuant to section 316(b), for a regulatory system which allows flexibility, and a lessening of firm proscriptions in a proper case, can lend strength to the system as a whole. Id. at 193 (citation and internal quotation marks omitted). Riverkeeper I thus rejected the view that the EPA’s authority to grant a variance from the generally applicable requirements of a rule promulgated pursuant to section 316(b) derives from the statutory variance provisions in other sections of the Act. Instead, Riverkeeper I found that the variance provision would not be authorized if it left alternative requirements to the Agency’s “unfettered discretion” but would be authorized if it “guide[d] the permitting authority to consider appropriate factors and allow[ed] relaxation of the Rule’s uniform technology requirements only insofar as necessary to account for unusual circumstances not considered by the Agency during its rulemaking.” Id. at 193-94 (internal quotation marks omitted). 44
    133. 371, and (2) the variance is expressly premised on the validity of the BTA determination,23 which itself has been remanded for further explanation, see, e.g., Solite Corp. v. U.S. EPA, 952 F.2d 473, 494-95 (D.C. Cir. 1991) (remanding rule where the underlying grounds for its promulgation had been remanded to the EPA for procedural defects); cf. Chenery, 318 U.S. at 87-88 (a rule may only be upheld on the grounds that the agency proffers). In the Rule’s proposal, the EPA indicated that it had estimated compliance costs for 539 “model plants” based on factors such as “fuel source, mode of electricity generation, existing intake technologies, waterbody type, geographic location, and intake flow.” 67 Fed. Reg. at 17,144. An accompanying technical development document set forth the Agency’s cost calculation methodology for these model plants and listed the compliance cost estimates for each of the 539 model plants. The proposal indicated that a facility must “determine which model plant [it] most closely” resembles in order to identify the costs considered by the Agency in establishing the national performance standards. See id. The EPA subsequently published in the Federal Register a so-called Notice of Data Availability (“NODA”) in which it explained that it had changed its methodology for estimating the model plants’ compliance costs. Proposed Regulations to Establish Requirements for Cooling Water Intake Structures at Phase II Existing Facilities; Notice of Data Availability; Proposed Rule, 68 Fed. Reg. 13,522, 13,527 (Mar. 19, 2003). Accompanying documents explained in greater detail the costing methodology and cost data underlying the revised approach. The revised proposal, however, did not depart from the 23 This variance requires a comparison between the actual costs of compliance and those contemplated by EPA under the Rule. Because the Agency has calculated the costs it believes specific facilities will incur in adopting the appropriate BTA technologies (as currently defined) and then promulgated these costs in the final Rule, any change in the selection of BTA on remand will necessarily alter these costs. 45
    134. “model plant” approach. The final Rule, by contrast, assigned cost estimates to specific, named facilities rather than model facilities. 69 Fed. Reg. at 41,670-82. The Agency explained in the preamble to the final Rule that the EPA will adjust facility-specific costs pursuant to a multiple- step calculation formula to arrive at a final estimated cost the EPA considers a comparison for purposes of the cost-cost variance. Id. at 41,644-47. The EPA acknowledges that it did not disclose in the proposal or the NODA specific facility names in connection with cost data and explains that it failed to do so because it needed to protect certain confidential business information (“CBI”) and had not developed during the proposal stage a means to protect that information while still providing cost data to the public. We accept the EPA’s argument that masking the facility names did not prevent interested parties from commenting on the methodology and general cost data underlying the EPA’s approach because the NODA explained the costing methodology and because the general cost data, while not identified by the Agency as relating to actual, specific facilities, was made available to interested parties. Nat’l Wildlife Fed., 286 F.3d at 564-65 (holding that the EPA cannot be faulted for lack of notice in not releasing CBI data). We are persuaded, however, that the release of information and request for comments on the EPA’s new approach to developing compliance cost modules via the NODA did not afford adequate notice of the costs associated with specific facilities promulgated in the final Rule. We have previously stated that “[n]otice is said not only to improve the quality of rulemaking through exposure of a proposed rule to comment, but also to provide fairness to interested parties and to enhance judicial review by the development of a record through the commentary process.” Nat’l Black Media Coalition v. FCC, 791 F.2d 1016, 1022 (2d Cir. 1986). 46
    135. “While a final rule need not be an exact replica of the rule proposed in the Notice, the final rule must be a ‘logical outgrowth’ of the rule proposed.” Id. “The test that has been set forth is whether the agency’s notice would fairly apprise interested persons of the subjects and issues” of the rulemaking. Id. (citation and internal quotation marks omitted).24 Agencies accordingly are not permitted “to use the rulemaking process to pull a surprise switcheroo.” Envtl. Integrity Project, 425 F.3d at 996. Here, only the final Rule identified facilities by name in estimating compliance costs. Interested parties therefore could not comment on the basis for particular facilities’ cost figures that the EPA established. This is problematic because the availability of a variance turns on the relationship between the costs estimated in the Rule and those that a specific facility establishes in a permit proceeding. The EPA focuses on the notice it gave of its intended methodology for calculating the costs the Agency considered, but ignores the overriding importance of the cost estimates for a particular facility in determining whether a site-specific cost-cost variance is appropriate. Thus, the EPA should have afforded notice and an opportunity to challenge the cost estimates for specific facilities and not simply an opportunity to comment 24 The D.C. Circuit has phrased the test somewhat differently, stating that “[w]hether the ‘logical outgrowth’ test is satisfied depends on whether the affected party ‘should have anticipated’ the agency’s final course in light of the initial notice.” Covad Comms. Co. v. FCC, 450 F.3d 528, 548 (D.C. Cir. 2006) (citation omitted). It has also indicated that “[t]he ‘logical outgrowth’ doctrine does not extend to a final rule that finds no roots in the agency’s proposal because something is not a logical outgrowth of nothing, nor does it apply where interested parties would have had to divine the agency’s unspoken thoughts because the final rule was surprisingly distant from the Agency’s proposal.” Envtl. Integrity Project v. EPA, 425 F.3d 992, 996 (D.C. Cir. 2005) (citations, internal quotation marks, and alteration omitted). 47
    136. on the EPA’s methodology and general cost data.25 We remand this variance for inadequate notice and because of our remand of the BTA determination. 2. Cost-Benefit Compliance Alternative26 If a facility requests that it be permitted to demonstrate compliance with the Phase II Rule through the site-specific cost-benefit provision of 40 C.F.R. § 125.94(a)(5)(ii), the facility must submit with its application a Comprehensive Cost Evaluation Study, Benefits Valuation Study, and Site Specific Technology Plan. 40 C.F.R. § 125.95(b)(6). As part of the Benefits Valuation Study, the facility must indicate the monetized value of commercial, recreational, and ecological benefits of compliance with the generally applicable national performance standards 25 Because we remand on this procedural ground, we do not consider the provision on the merits. We presume that after comment on remand, however, the EPA will reevaluate the merits of the cost-cost variance provision, particularly in light of any reevaluation of BTA in which the Agency may engage. While we do not decide the issue here, we note our discomfort with the “significantly greater than” standard of 40 C.F.R. § 125.94(a)(5)(i), given the historical applicability of a “wholly disproportionate to” standard and the use of the latter standard in the Phase I Rule. We have not found entirely persuasive the EPA’s position that [t]his difference in standards for new and existing facilities is based on (1) the greater flexibility available to new facilities for selecting the location of their intakes and installing technologies at lower costs relative to the costs associated with retrofitting existing facilities and (2) the desire to avoid economically impracticable impacts on energy prices, production costs, and energy production that could occur if large numbers of Phase II existing facilities incurred costs that were more than “significantly greater” than but not “wholly out of proportion” to the costs in EPA’s record. 68 Fed. Reg. at 13,541. The EPA would presumably consider each of these two factors in establishing BTA for existing facilities, and need not further consider them in determining whether a particular facility warrants a variance from the generally applicable BTA. Because cost is not supposed to be a paramount consideration in determining BTA, see Riverkeeper I, 358 F.3d at 185, the “significantly greater than” standard poses substantial concerns. 26 In contrast to the cost-cost variance, the cost-benefit compliance alternative will not change on remand for the reconsideration of BTA. We thus reach the merits here. 48
    137. as well as a qualitative assessment of any so-called “non-use” benefits that cannot be monetized. 40 C.F.R. § 125.95(b)(6)(ii)(A), (E). Ultimately, the facility must demonstrate that its compliance costs are “significantly greater than” the benefits of compliance. The petitioners contend that this alternative impermissibly focuses on cost-benefit considerations, contrary to Congress’s directive, and is analogous to the kind of water-quality-based standard we found to be inconsistent with the statute in Riverkeeper I. 358 F.3d at 190. For both reasons, we are persuaded that the EPA exceeded its authority in permitting site-specific cost-benefit variances. In light of this conclusion, we do not reach the industry petitioners’ claim that the provision impermissibly requires consideration of qualitative non-use benefits in the cost-benefit analysis. As we discussed previously in analyzing the EPA’s determination of BTA, cost- benefit analysis is not consistent with the requirement of § 316(b) that cooling water intake structures “reflect the best technology available for minimizing adverse environmental impact.” Indeed, the statutory language requires that the EPA’s selection of BTA be driven by technology, not cost. The Agency is therefore precluded from undertaking such cost-benefit analysis because the BTA standard represents Congress’s conclusion that the costs imposed on industry in adopting the best cooling water intake structure technology available (i.e., the best-performing technology that can be reasonably borne by the industry) are worth the benefits in reducing adverse environmental impacts. Cf. Am. Textile Mfrs. Inst., 452 U.S. at 509 (noting that where Congress has defined the basic relationship between costs and benefits, a regulatory standard that strikes a different balance is inconsistent with the statute). Just as the Agency cannot determine BTA on the basis of cost-benefit analysis, it cannot authorize site-specific determinations of BTA based on cost-benefit analysis. 49
    138. The cost-benefit variance also impermissibly authorizes the EPA to consider the degraded quality of waterways in selecting a site-specific BTA. We stated in Riverkeeper I that in enacting the CWA, Congress rejected regulation by reference to water quality standards. 358 F.3d at 189-90. Before 1972, Congress “regulated point sources based on their effect on the surrounding water and allowed sources to discharge pollutants provided the discharge did not cause water quality to dip below an acceptable level.” Id. at 189. Congress changed its approach in 1972, in part because a plaintiff attempting to prove a violation of the law faced a nearly impossible burden of showing that a particular polluter had caused the water quality to dip below the regulatory standards. Id. at 189-90. The Act now regulates discharges from point sources rather than water quality. We thus concluded in Riverkeeper I that water-quality standards cannot be considered under section 316(b). Id. at 190. Of course, “water quality” in the context of the Act is generally understood to refer to pollutant concentration. As we noted in Riverkeeper I, however, for purposes of section 316(b), which regulates water intake rather than the discharge of pollutants, water quality is “measured by wildlife levels.” Id. at 189. This analysis in Riverkeeper I is, thus, equally applicable here.27 27 As the petitioners note, section 316(a) permits consideration of the quality of the receiving water for purposes of granting variances with respect to the rules concerning thermal pollution. Section 316(a) provides that the Administrator may issue a variance to the rules governing “thermal discharges” to a facility that establishes that those rules “require effluent limitations more stringent than necessary to assure the pro[t]ection and propagation of a balanced, indigenous population of shellfish, fish, and wildlife in and on the body of water into which the discharge is to be made.” CWA § 316(a), 33 U.S.C. § 1326(a). As the petitioners also note, section 316(b) does not similarly permit consideration of the quality of the receiving water, and this distinction is significant. See Russello, 464 U.S. at 23. Moreover, as we discussed in Riverkeeper I, the heat-pollution provision of section 316(a) is a “notable exception” to the CWA, which “otherwise relies on limitations on what a source can put into the water, not the ultimate effect of that discharge.” 358 F.3d at 190. Nothing in the statute, therefore, supports the view that the EPA can consider the quality of the receiving water in granting variances from 50
    139. The challenged provision of the Phase II Rule apparently would permit a facility to argue that, based on water quality (i.e., the level of aquatic wildlife in a particular body of water), the cost of complying with the national performance standards is not justified. The Agency explained in the preamble to the Rule that “in a waterbody that is already degraded, very few aquatic organisms may be subject to impingement or entrainment, and the costs of retrofitting an existing cooling water intake structure may be significantly greater than the benefits of doing so.” 69 Fed. Reg. at 41,604. This kind of water-quality-based regulation is not authorized by the CWA because it would exempt facilities from meeting the mandated performance standards simply because wildlife levels in the waterbody were already low, and as we held in Riverkeeper I, the CWA does permit the EPA to consider water quality in making BTA determinations. Finally, we note that to the extent that facilities on highly degraded waterbodies with relatively low wildlife levels face high compliance costs to achieve the national performance standards, those facilities may qualify for the cost-cost variance if such variance is retained on remand. Because the EPA exceeded its authority under section 316(b) by permitting (1) cost-benefit analysis and (2) assessment of the quality of the receiving water (i.e., the receiving water’s wildlife levels) in determining whether a variance is warranted, we do not need to defer to the Agency’s construction of the statute. We therefore remand this aspect of the Rule. D. TIOP Provision The Phase II Rule’s TIOP provision, 40 C.F.R. § 125.94(d), permits a facility to generally applicable rules promulgated pursuant to section 316(b). 51
    140. comply with the national performance standards determined on the basis of whether the facility has “complied with the construction, operational, maintenance, monitoring, and adaptive management requirements of a Technology Installation and Operation Plan.” Id. § 125.94(d)(1). The petitioners contend that this provision impermissibly allows a facility’s compliance to be determined not by reference to the performance standards themselves, but by evaluating whether a facility has complied with a plan to achieve the performance standards. In other words, they argue that the TIOP provision essentially allows for an unauthorized margin of error. The petitioners also argue that the EPA denied the public an opportunity to comment on the provision. Like the cost-cost compliance alternative, remand is appropriate here on two grounds: (1) the EPA did not give adequate notice regarding the provisions in section 125.94(d)(2); and (2) the record justification for the TIOP provision depends on the EPA’s selection of a suite of technologies as BTA, a selection which has been remanded for further explanation. Given this, we remand the TIOP provision without reaching the merits here. The Rule provides that during the first permit term, a facility may request that its compliance be determined based on whether it has complied with its TIOP, which must be designed to meet the performance standards, 40 C.F.R. § 125.94(d)(1), and submitted with a permit application, id. § 125.95(b)(4)(ii). During subsequent permit terms, if a facility has complied with its TIOP but is not meeting the performance standards, the facility may request that its compliance with the standards during the following term be based on whether it remains in compliance with its TIOP, revised in accordance with the facility’s adaptive management plan. 40 C.F.R. § 125.94(d)(2). The EPA explained in the Rule’s preamble that it is difficult to determine reductions in impingement mortality and entrainment relative to what would have 52
    141. occurred in the absence of control technologies given natural variability and the vagaries of sampling methods. 69 Fed. Reg. at 41,613. The EPA explained further that it established the TIOP compliance options to account for these variabilities on the ability of a technology to meet the performance standards consistently over time. Id. at 41,613-14. As previously noted, a “final rule must be a ‘logical outgrowth’ of the rule proposed.” Nat’l Black Media Coalition, 791 F.2d at 1022. The final rule must have roots in the proposal, Envtl. Integrity Project, 425 F.3d at 996, which must “fairly apprise interested persons of the subjects and issues” involved in the rulemaking, Nat’l Black Media Coalition, 791 F.2d at 1022. An agency cannot “pull a surprise switcheroo” on interested parties between a proposal and the issuance of a final rule. See Envtl. Integrity Project, 425 F.3d at 996. Although the Rule’s proposal notified interested parties that the Agency was considering a provision that would give facilities time to achieve the performance standards after implementing new technologies, the EPA gave inadequate notice of the potentially indefinite scope of this provision. Specifically, the EPA failed to provide notice of the Rule codified at 40 C.F.R. § 125.94(d)(2), which permits a facility to be deemed in compliance with the Phase II Rule in subsequent permit terms if it continues to adhere to its TIOP. In the Rule’s proposal, the EPA stated only that it was considering “the need for regulatory language that would allow facilities time to come into compliance [with the performance standards] if they choose to install technologies to meet the performance standards.” 68 Fed. Reg. at 13,586. The proposal indicated further that the EPA was “evaluating and considering allowing six months, one year, two years, or five years (one permit term) for a facility to come into compliance after issuance of its permit.” Id. The TIOP provision in the 53
    142. final Rule, by contrast, does not simply allow facilities additional time, up to one permit term, to come into compliance with the performance standards. Instead, it appears to permit a facility to satisfy the Rule’s requirements in subsequent permit terms, for an indefinite period, without ever demonstrating compliance with the performance standards, so long as the facility has adhered to its TIOP. 40 C.F.R. § 125.94(d)(2) (stating that “[d]uring subsequent permit terms” a facility “may request that compliance . . . be determined based on whether [it] remain[s] in compliance with” its TIOP). This aspect of the TIOP provision appears then not to be a “logical outgrowth” of the proposal, see Nat’l Black Media Coalition, 791 F.2d at 1022, because interested parties would not have divined from the proposal that facilities could be given an indefinite period to come into compliance with the national performance standards. We thus remand the rule for failure to provide notice and comment and because the record justification for the TIOP provision depends on the EPA’s selection of BTA, which has been remanded. E. Definitions of “New Facility” and “Existing Facility” The environmental petitioners challenge the reclassification in the Phase II Rule preamble of certain new constructions as “existing facilities,” thereby rendering them subject to the Phase II Rule rather than the more stringent Phase I requirements that apply to new facilities. We agree with the petitioners that the Agency interpretively modified a definition appearing in the Phase I Rule via statements in the preamble to the Phase II Rule without providing interested parties notice and an opportunity for comment. “An agency’s interpretation of its own . . . regulation must be given controlling 54
    143. weight unless it is plainly erroneous or inconsistent with the regulation.” Fowlkes v. Adamec, 432 F.3d 90, 97 (2d Cir. 2005) (citations and internal quotation marks omitted). Although we typically owe considerable deference to an agency’s construction of its own regulation, Udall v. Tallman, 380 U.S. 1, 16 (1965), “[u]nder settled principles of statutory and rule construction, a court may defer to administrative interpretations of a statute or regulation only when the plain meaning of the rule itself is doubtful or ambiguous,” Pfizer, Inc. v. Heckler, 735 F.2d 1502, 1509 (D.C. Cir. 1984) (emphasis in original). “Deference to agency interpretations is not in order if the rule’s meaning is clear on its face.” Id. Implicit in the rule that an agency cannot interpret a regulation contrary to its unambiguous meaning is the requirement that “an agency must adhere to its own rules and regulations.” Reuters Ltd. v. FCC, 781 F.2d 946, 950 (D.C. Cir. 1986). An agency may modify a regulation that has already been promulgated, therefore, only through the process of notice and comment rulemaking. See Alaska Prof’l Hunters Ass’n, Inc. v. FAA, 177 F.3d 1030, 1034 (D.C. Cir. 1999); see also 5 U.S.C. § 551(5) (defining “rule making,” which is governed by the notice and comment requirements of 5 U.S.C. § 553, as the “agency process for formulating, amending, or repealing a rule”); Shalala v. Guernsey Memorial Hosp., 514 U.S. 87, 100 (1995) (noting in dicta that APA rulemaking is required where an agency interpretation “adopt[s] a new position inconsistent with . . . existing regulations”). The Phase I Rule defined “new facility” as any structure whose construction commenced after January 17, 2002 that meets both the definition of “new source” in 40 C.F.R. § 122.29 (discussed below) and one of two other requirements: the structure must use either (1) “a newly constructed cooling water intake structure” or (2) “an existing cooling water intake structure whose design capacity is increased to accommodate the intake of additional cooling 55
    144. water.” See 40 C.F.R. § 125.83. A “new source” under section 122.29 is a facility that (1) “is constructed at a site at which no other source is located,” (2) “totally replaces the process or production equipment that causes the discharge of pollutants at an existing source,” or (3) undertakes “processes . . . substantially independent of an existing source at the same site.”28 40 C.F.R. § 122.29(b) (emphasis added). Section 122.29(b) provides further that, in determining whether a facility is “substantially independent” of an existing source, the director should consider “the extent to which the new facility is integrated with the existing plant; and the extent to which the new facility is engaged in the same general type of activity as the existing source.” 40 C.F.R. § 122.29(b)(iii). In determining whether a new construction qualifies as a “new facility” for purposes of the Phase I Rule, therefore, the permitting authority must perform a two-part, but not necessarily sequential, analysis. It must determine whether the construction uses a new cooling water intake structure or an existing structure whose capacity has been increased. The permitting authority must also determine whether the new construction qualifies as a “new source.” Failure to meet either part of this analysis precludes the new construction from qualifying as a “new facility,” and thus from falling under the Phase I Rule’s purview. The Phase I Rule stated that “new facilities” meeting the foregoing requirements 28 The Phase I Rule defined facilities meeting either of the first two tests of section 122.29(b) as “greenfield” facilities and facilities meeting the third test as “stand-alone” facilities. 40 C.F.R. § 125.83 (“A greenfield facility is a facility that is constructed at a site at which no other source is located, or that totally replaces the process or production equipment at an existing facility. A stand-alone facility . . . is constructed on property where an existing facility is located and whose processes are substantially independent of the existing facility at the same site.”). 56
    145. include a “stand-alone” facility, which the Phase I Rule defined as “a new, separate facility that is constructed on property where an existing facility is located and whose processes are substantially independent of the existing facility at the same site.” Id. § 125.83. This is because such a facility, by definition, essentially qualifies as a “new source.” Compare id. with § 122.29 (defining “new source” as including a facility that undertakes “processes . . . substantially independent of an existing source at the same site”). The Phase I Rule clarified, however, that “new facility” does not include “new units that are added to a facility for purposes of the same general industrial operation (for example, a new peaking unit at an electrical generating station).” Id. § 125.83. This is presumably because such units do not qualify as “new sources” in that they are not substantially independent of existing sources. See id. § 122.29(b)(1)(iii) (setting forth the factors to be considered in determining substantial independence, including “the extent to which the new facility is integrated with the existing plant; and the extent to which the new facility is engaged in the same general type of activity as the existing source”). The Phase I Rule thus appears to have left regulation over the following to a subsequent rulemaking phase: (1) new stand-alone facilities that use existing intake structures whose design capacity is not increased and (2) new units that are added to a facility for purposes of the same general industrial operation even if they require either an increase in the intake structure design capacity or the construction of a new cooling water intake structure altogether. Id.29 29 A facility would clearly find it advantageous to classify a new construction on its grounds as one added for purposes of the same general industrial operation rather than as a stand- alone facility. A stand-alone facility is treated as an existing facility only if it uses an existing intake structure whose capacity is not increased; a “new unit,” by contrast, is treated as part of an existing facility even if it requires the construction of a new intake structure or an increase in an existing intake structure’s capacity. 57
    146. The Phase II Rule defines “existing facility” as any facility whose construction commenced on or before January 17, 2002, “and any modification of, or any addition of a unit at such a facility that does not meet the definition of a new facility at § 125.83.” Id. § 125.93. Thus, from this definition, it appears that new stand-alone facilities that use existing, unmodified intake structures and new units added to a facility for purposes of the same industrial operation, regardless of their impact on the facility’s cooling water intake structure, (i.e., the two kinds of new constructions left unregulated by the Phase I Rule) are considered “existing facilities” and governed by the Phase II Rule. The parties’ dispute concerns statements in the preamble to the Phase II Rule that purportedly narrow, by way of interpretation, the Phase I Rule’s definition of “new facility”30 without the required procedures of notice and comment. In the preamble to the Phase II Rule, the EPA states that “the Phase I [R]ule treated almost all changes to existing facilities for purposes of the same industrial operation as existing facilities.” 69 Fed. Reg. at 41,579. The preamble then appears to distinguish stand-alone facilities from new units that are part of the same industrial operation, thereby defining the latter as existing facilities without reference to the definition of “new source” or the “substantial independence” test of 40 C.F.R. § 122.29. Id. at 41,579 n.2a. The preamble states that the “substantial independence” test does not apply where there is an addition to an existing facility for purposes of the same industrial operation, such as the “addition 30 We find no merit to the EPA’s argument that the state and environmental petitioners here are ostensibly challenging the Phase II Rule’s definition of “existing facility” but are actually seeking review of the meaning of “new facility” under the Phase I Rule – for which their claim would be time-barred. Though the EPA claims that “[n]othing in the Phase II Rule altered or amended the definition of ‘new facility,’” it is clear from the discussion above that the preamble to the Phase II Rule eliminates without notice or comment the analysis the Phase I Rule had required. 58
    147. of new generating units at the same site” as an existing facility, id. at 41,579, because such additions “are categorically treated as ‘existing facilities’ regardless of any other considerations unless they completely replace an existing facility and its cooling water design intake capacity is increased,” id. at 41,579 n.2a. These comments are contrary to the plain meaning of the relevant portion of the Phase I Rule. The Phase I Rule unambiguously stated that “new facility” means any structure that is a “new source,” as defined by 40 C.F.R. § 122.29, subject to certain other requirements. Under this provision, a source is considered “new” if, inter alia, “[i]ts processes are substantially independent of an existing source at the same site.” 40 C.F.R. § 122.29(b)(1)(iii). A permitting authority could not classify a source constructed at the site of an existing source as new or existing for purposes of the Phase I Rule, therefore, without reference to the “substantial independence” test. It is plain, then, that the Phase I Rule distinguished between “stand-alone” facilities and “new units,” where the new construction is not built at an empty site and does not totally replace an existing source, by reference to the definition of a “new source.” A stand-alone facility is “substantially independent” of an existing facility, and therefore a new source; a new unit that is part of the same industrial operation as an existing facility is not substantially independent of an existing facility, and therefore not a new source. It is impossible to determine which classification applies to a particular construction under the Phase I Rule without referring to the definition of “new source,” i.e., whether it satisfies the “substantial independence” test. Put differently, the touchstone of the definition of “new facility” in the Phase I Rule is whether a source is a “new source.” The Phase I Rule’s plain terms thus indicate that a unit that is “substantially independent” of an existing facility is not “part of the same general industrial 59
    148. operation” as the existing facility. Any elimination of the “substantial independence” inquiry, therefore, strikes at the heart of the Phase I Rule and its classification of what facilities are subject to its requirements. The EPA claims that the Phase II Rule has in no way eliminated the “substantial independence” test and that the Rule’s preamble merely makes clear that the fifth sentence in section 125.83 exempts “new units” from regulation under the Phase I Rule. This argument fails because the Phase I Rule provides no way to distinguish between stand-alone facilities and new units where the construction is built on a site where a source is already located and does not totally replace the existing source except by reference to the “substantial independence” test, i.e., without assessing the factors set forth at 40 C.F.R. § 122.29(b)(1)(iii) in order to determine whether the source is new or existing. Just as “stand-alone facility” has no intrinsic meaning, neither does “new unit.” The Phase I Rule defines each by reference to the “substantial independence” test of section 122.29(b). Thus, while an existing facility can be repowered with new generating units and remain an “existing facility” for regulatory purposes under section 316(b), the determination can only be made by reference to whether a particular new generating unit is a stand-alone facility or a new unit that is part of the same general industrial operation as an existing facility. In fact, a permitting authority must first determine whether a source is “new” within the meaning of 40 C.F.R. § 122.29(b) before it can conclude that the source is a stand-alone facility or a new unit added to an existing facility for purposes of the same general industrial operation. Because the Phase I Rule was not ambiguous, we do not owe deference to the Agency’s interpretation of the Phase I Rule in the preamble to the Phase II Rule. See Fowlkes, 60
    149. 432 F.3d at 97; Pfizer, 735 F.2d at 1509. By permitting the Agency to determine that a new construction is not subject to the Phase II Rule without any definitional guidance and in contravention of the Phase I Rule, the EPA has expanded the scope of what may be classified as a “new unit” while narrowing the Phase I definition of “stand-alone” facility. Moreover, by including a potentially expansive definition of “new unit” in the preamble to the Phase II Rule, the EPA has interpretively modified the definitions that appeared in the Phase I Rule without providing interested parties an opportunity for notice and comment. Accordingly, we direct the EPA on remand to adhere to the definitions set forth in the Phase I Rule, see Reuters, 781 F.2d at 950-52, or to amend those definitions following notice and comment, see Alaska Prof’l Hunters, 177 F.3d at 1034. IV. The Industry Petitioners A. Applicability of Section 316(b) to Existing Facilities Entergy argues that the EPA lacks authority to apply CWA section 316(b) to existing, as opposed to new, facilities. We disagree and conclude that, at the very least, the EPA permissibly interpreted the statute to cover existing facilities and that its interpretation is therefore entitled to deference under Chevron. Entergy’s argument turns primarily on the statutory language that the best technology available be reflected in the “location, design, construction, and capacity of cooling water intake structures” – a collection of words Entergy contends indicates Congress’s intent to 61
    150. regulate only new facilities.31 Entergy argues further that the EPA has authority to approve cooling water intake structures only before construction and cannot regulate these structures through the NPDES permits issued pursuant to CWA section 402(a)(1), 33 U.S.C. § 1342(a)(1), which allows the Administrator to “issue a permit for the discharge of any pollutant,” but not, in Entergy’s view, to cover existing intake structures. The EPA emphasizes that section 316(b) cross-references section 301, which applies to existing facilities, and that the Agency’s historical practice of applying section 316(b) to existing facilities effectuates Congress’s objectives in enacting the CWA. The EPA contends that Congress’s link between effluent limitations established pursuant to section 301 and BTA under section 316(b) indicates an intent to regulate cooling water intake structures at existing facilities. The EPA thus argues that the intake-structure standard is to be applied whenever an intake structure is present at a point source of pollutant discharge, whether that point source is new or existing. As to Entergy’s argument concerning the ability to assess intake structures during NPDES permitting proceedings, the EPA argues that its decision to implement the Phase II requirements through NPDES permits has a strong textual basis. It notes that section 402 31 Entergy cites a number of federal statutory and regulatory provisions using similar words and argues that each provision applies only in the pre-construction context. The environmental petitioners contend that the provisions upon which Entergy relies explicitly limit their application to new facilities and that, as a result, the words “location, design, construction and capacity,” standing alone, do not apply solely to new facilities; otherwise, the environmental petitioners’ argument goes, there would be no need to limit expressly the provisions’ applicability to new facilities. For example, 49 U.S.C. § 60103, which governs safety standards for liquefied natural gas pipelines, by its express terms does not apply to certain existing facilities. 49 U.S.C. § 60103(c) (“Except as provided in paragraph (2) of this subsection, a design, location, installation, construction, initial inspection, or initial testing standard prescribed under this chapter after March 1, 1978, does not apply to an existing liquefied natural gas pipeline facility . . . .”). These are additional reasons for the holding discussed in this opinion. 62
    151. provides for the issuance of “a permit for the discharge of any pollutant” so long as the discharge meets “all applicable requirements under sections 1311 . . . [and] 1316,” sections 301 and 306 of the CWA respectively. CWA § 402(a)(1), 33 U.S.C. § 1342(a)(1). EPA contends that the Phase II requirements are “requirements under sections 1311 . . . [and] 1316” and therefore that cooling water intake structures may be regulated via permits issued pursuant to section 402. The EPA has the better of both arguments. As to whether section 316(b) applies to existing facilities, we find Entergy’s textual argument, while superficially appealing, ultimately to be unavailing. Nothing in section 316(b) indicates that because it applies to the “location, design, construction, and capacity” of a facility’s cooling water intake structure, the section is therefore limited to new facilities and does not require existing facilities either to modify existing intake structures or to construct new intake structures in order to come into compliance with the EPA’s Rule.32 In fact, given the cross-references in section 316(b) to provisions governing both new and existing facilities, the EPA’s reading is far more reasonable than Entergy’s. See E.I. du Pont de Nemours & Co. v. Train, 430 U.S. 112, 121 (1977) (“Section 301(b) [to which section 316(b) expressly refers] defines the effluent limitations that shall be 32 We are not persuaded by Entergy’s selective definitions of the terms “location, design, construction, and capacity.” While we agree that words in a statute are to be accorded “their ordinary, contemporary, common meaning,” Harris v. Sullivan, 968 F.2d 263, 265 (2d Cir. 1992), it is clear that the EPA’s interpretation of the statute does not deviate from this requirement. See, e.g., Black’s Law Dictionary 958 (8th ed. 1999) (“[L]ocation” is “[t]he specific place or position of a person or thing.”); id. at 478 (“[D]esign” means “a plan or scheme” or “[t]he pattern or configuration of elements in something.”); id. at 332 (“[C]onstruction” is “[t]he act of building,” but also “the thing so built.”); Webster’s Third New Int’l Dictionary 330 (1986) (“[C]apacity” means “the power or ability to hold, receive or accommodate” and “a containing space: a measure of content for gas, liquid, or solid.”). Nothing in the above definitions suggests the EPA could not have reasonably interpreted such words to include existing facilities. 63
    152. achieved by existing point sources . . . .”); id. at 136 (holding that “301 does authorize the [Agency] to promulgate effluent limitations for classes and categories of existing point sources”). The cross-reference to section 301 is particularly significant given that Congress, having made this explicit cross-reference, did not then limit section 316(b)’s application to new facilities – which would have been a simple task to do. At the very least, the EPA’s view that section 316(b) applies to existing facilities is a reasonable interpretation of the statute, and we therefore accord it deference. See Chevron, 467 U.S. at 842-43. Entergy’s argument concerning the permitting process presents a closer question, but it is ultimately not persuasive and does not undermine our conclusion that section 316(b), on its face, applies to existing facilities. The textual basis for the EPA to regulate cooling water intake structures during the periodic permitting process applicable to the discharge of pollutants is not immediately apparent. Section 402 conditions the issuance of a permit on the circumstance that a “discharge will meet . . . all applicable requirements under sections 1311 . . [and] 1316.” CWA § 402(a)(1), 33 U.S.C. § 1342(a)(1) (emphasis added). While the Phase II requirements are “requirements” under sections 301 and 306, they do not apply to the discharge of pollutants, and section 402 says nothing about conditioning a permit on compliance with other requirements of sections 301 and 306, i.e., requirements not relating to the discharge of pollutants. Despite this textual hiccup, the EPA’s decision to use the NPDES process to enforce section 316(b) is not unreasonable. Insofar as the provision applies to existing facilities – and the cross-reference in section 316(b) to section 301 provides a clear textual basis for that conclusion – the EPA could enforce it only through some permit process following the issuance of an initial construction permit. Moreover, the structure of section 316(b) supports the view that its requirements are to 64
    153. be enforced through the same process used to enforce the effluent limitations of sections 301 and 306. As noted, the statute requires that any standard established by the EPA to govern the discharge of pollutants from existing facilities must also regulate cooling water intake structures. CWA § 316(b), 33 U.S.C. § 1326(b) (providing that “[a]ny standard established pursuant to section 1311 . . . or section 1316” shall also regulate the cooling water intake structures of point sources). In light of this language, it is at least reasonable to conclude that Congress intended the requirements of section 316(b) to be part and parcel of any regulation of, and therefore any permit issuance relating to, the discharge of pollutants. See Riverkeeper I, 358 F.3d at 185-86. It is a fair conclusion that section 402 implicitly requires permitting authorities to ensure compliance with section 316(b) as a permit condition. See U.S. Steel Corp. v. Train, 556 F.2d 822, 850 (7th Cir. 1977) (“[Section] 402(a)(1) implicitly requires the Administrator to insure compliance with § 316(b) as one of the permit conditions.”), overruled on other grounds by City of West Chicago, Ill. v. U.S. Nuclear Regulatory Comm’n, 701 F.2d 632, 644 (7th Cir. 1983) (abandoning the view that 5 U.S.C. § 558(c) independently provides that formal adjudicatory hearings must be held when requested by a license applicant under CWA § 402). Section 402 thus does not undermine the deference to which the Agency’s interpretation of section 316(b) is entitled under Chevron. Because section 316(b) plainly applies to existing facilities and Congress intended the requirements of section 316(b) to apply in tandem with the effluent limitations established pursuant to sections 301 and 306, we conclude that the EPA may regulate cooling water intake structures via the NPDES permit process. Otherwise, Congress’s intent to regulate the intake 65
    154. structures of existing facilities could not be effectuated.33 Accordingly, we reject this aspect of Entergy’s challenge. B. Definition of “Adverse Environmental Impact” In the Phase II Rule, as in the Phase I Rule, the EPA has interpreted the statutory directive of section 316(b) to minimize “adverse environmental impact” (“AEI”) to require the reduction of “the number of aquatic organisms lost as a result of water withdrawals associated” with cooling water intake structures. 69 Fed. Reg. at 41,586. This interpretation reflects the fact that section 316(b) is a somewhat unusual provision of the CWA in that it governs the environmental effects of large scale withdrawals from waters of the United States rather than the release of pollutants into receiving water. As did the industry petitioners in Riverkeeper I, PSEG argues that the EPA arbitrarily defined AEI to include any loss of or harm to aquatic organisms 33 Entergy also contends that section 316(b) cannot be enforced via a citizen suit pursuant to section 505(a)(1), 33 U.S.C. § 1365(a)(1), because that provision covers only violations of “an effluent standard or limitation” or “an order issued by the Administrator or a State with respect to such a standard or limitation,” and that the statute therefore applies only in the pre-construction context. Because the case before us is not a citizen suit, we are not directly presented with the question of whether a citizen can sue to enforce section 316(b) and do not decide the question. We are not, however, persuaded by Entergy’s argument. The citizen suit provision states that a citizen may commence a suit against any person who is alleged to be in violation of “an effluent standard or limitation under this chapter.” CWA § 505(a)(1), 33 U.S.C. § 1365(a)(1). Viewed in light of this language alone, it is difficult to characterize a violation of regulations promulgated pursuant to section 316(b) as a violation of an “effluent standard or limitation.” The statute, however, defines “effluent standard or limitation” to include “an effluent limitation or other limitation under section 1311” and a “standard of performance under section 1316.” CWA § 505(f), 33 U.S.C. § 1365(f). Arguably, therefore, a limitation established pursuant to section 316(b) is an “other limitation under section 1311” and a “standard of performance under section 1316,” given the cross-reference to sections 301 and 306 in section 316(b), and thus falls within the scope of the citizen-suit provision. While we do not decide the question here, we do not read the citizen suit provision to undermine the deference we accord the EPA’s reasonable interpretation pursuant to Chevron that section 316(b) applies to existing facilities. 66
    155. due to impingement mortality and entrainment rather than only more severe “population-level effects.” It contends that the EPA has historically focused on the “population dynamics” of aquatic organisms and the fact that many of these organisms are “density dependent,” i.e., they produce large numbers of offspring, only a few of which survive to adulthood.34 On the theory that the “vast majority” of entrained organisms would have died of natural causes in any event, PSEG argues that reduction of impingement mortality and entrainment will have only a marginal positive environmental impact.35 PSEG contends that because the Agency has changed course from its longstanding interpretation of AEI without giving a clear and reasoned justification for its decision, the EPA’s Rule is entitled to less deference than it otherwise would receive. PSEG also argues that the Phase II Rule’s exclusion from the entrainment-reduction requirement of facilities withdrawing small amounts of water, facilities withdrawing water from lakes other than the Great Lakes, and facilities that have a small capacity utilization rate undercuts the EPA’s 34 PSEG relies on the Draft Guidance for Evaluating the Adverse Impact of Cooling Water Intake Structures on the Aquatic Environment, prepared by the EPA in 1977. While the EPA indicated in this document that “[a]dverse environmental impacts occur whenever there will be entrainment or impingement damage as a result of the operation of a specific cooling water intake structure,” PSEG focuses on the Agency’s statement that the “critical question” is “the magnitude of any adverse impact.” 35 The environmental petitioners contend that PSEG has missed the mark here entirely. They argue that when organisms die of natural causes they remain available as food for top predators, but that when organisms are entrained, and potentially disintegrated, they are consumed by lower organisms. They argue also that entrained organisms are not available to consume organisms lower on the food chain. The environmental petitioners thus contend that one of the primary adverse environmental impacts of impingement mortality and entrainment is their effect on the ecosystem as a whole by disrupting the food chain. The EPA discussed these and other environmental impacts attributable to impingement mortality and entrainment in the preamble to the Phase II Rule, concluding that “[d]ecreased numbers of aquatic organisms can disrupt aquatic food webs and alter species composition and overall levels of biodiversity.” 69 Fed. Reg. at 41,586. 67
    156. determination that impingement mortality and entrainment are per se adverse environmental impacts. We are not persuaded by PSEG’s arguments. We agree with the EPA that the Phase II Rule is based on substantially the same record evidence of impingement mortality and entrainment relied upon in promulgating the Phase I Rule and that we rejected substantially the same arguments advanced here by the industry petitioners in Riverkeeper I, 358 F.3d at 197 (“The EPA considered all of the factors that UWAG now raises, and we are inclined to defer to the EPA’s judgment of how best to define and minimize ‘adverse environmental impact.’” (internal footnote omitted)). Riverkeeper I thus controls this issue. In Riverkeeper I, we rejected the arguments that some species are nuisances and require eradication, that other species respond to population losses by increasing their reproduction, and that removing large numbers of aquatic organisms from waterbodies is not in and of itself an adverse impact. 358 F.3d at 196. We specifically rejected the view that “the EPA should only have sought to regulate impingement and entrainment where they have deleterious effects on the overall fish and shellfish populations in the ecosystem, which can only be determined through a case-by-case, site-specific regulatory regime.” Id. We emphasized that “the EPA’s focus on the number of organisms killed or injured by cooling water intake structures is eminently reasonable.” Id. We reiterated that Congress had “rejected a regulatory approach that relies on water quality standards,” analogizing the argument pressed there as urging what is essentially a water quality standard that focuses on fish populations and consequential 68
    157. environmental harm.36 Id. at 196-97. Given that the record evidence on this issue has not changed in any meaningful way since the Phase I rulemaking, we are both persuaded and bound by our statements on this issue in Riverkeeper I. Were we considering the issue in the first instance, however, we would be inclined to defer to the EPA’s judgment in any event. The EPA explained that it has set “performance standards for minimizing adverse environmental impact based on a relatively easy to measure and certain metric – reduction of impingement mortality and entrainment.” 69 Fed. Reg. at 41,600. It explained further that it chose this approach “because impingement and entrainment are primary, harmful environmental effects that can be reduced through the use of specific technologies” and stated that “where other impacts at the population, community, and ecosystem levels exist, these will also be reduced by reducing impingement and mortality.” Id. We see no reason to second-guess this judgment, given the Agency’s consideration of the various environmental consequences of cooling water intake structures. See Nat’l Wildlife Fed’n, 286 F.3d at 570 (noting that courts afford the EPA considerable discretion to weigh and balance 36 We make an additional observation here, which we cited in Riverkeeper I as a reason for rejecting restoration measures as impermissible under the statute. It is significant that in section 316(a), which governs thermal discharges, Congress permits the EPA to vary the standard applicable to a point source “by considering the particular receiving waterbody’s capacity to dissipate the heat and preserve a ‘balanced, indigenous’ wildlife population.” 358 F.3d at 190. It is also significant that Congress “did not include that [water quality or population level] approach (or make any reference to it) in the very next subsection,” id., since “where Congress includes particular language in one section of a statute but omits it in another section of the same Act, it is generally presumed that Congress acts intentionally and purposely in the disparate inclusion or exclusion.” Id. (quoting Bates v. United States, 522 U.S. 23, 29-30 (1997) (internal quotation marks omitted)). The statutory structure thus indicates that Congress did not intend to limit “adverse environmental impact” in section 316(b) to population-level effects. 69
    158. various factors in determining how to establish performance standards).37 C. Zero Entrainment Survival Assumption The Phase II Rule requires a reduction of impingement mortality, but a reduction of entrainment generally. See 40 C.F.R. § 125.94(b). The industry petitioners contend that the EPA improperly presumed that all entrained organisms are killed. They argue that the Rule’s assumption that no organisms survive entrainment is contrary to the evidence which, in their view, indicates a survival rate of significantly more than zero. We conclude that in light of uncertain record evidence, the EPA acted within its discretion in assuming zero entrainment survival. The EPA explained in the preamble to the Phase II Rule that it assumed zero percent entrainment survival because it “does not have sufficient data to establish performance standards based on entrainment survival for the technologies used as the basis for today’s rule.” 69 Fed. Reg. at 41,620. It explained further that it “believes the current state of knowledge does not support reliable predictions of entrainment survival that would provide a defensible estimate for entrainment survival above zero at a national level.” Id. It also stated that the performance standard would likely have been higher had it incorporated entrainment survival into its 37 We also find no merit in PSEG’s claim that the final Rule gave no notice of the supposed change in the EPA’s view of “adverse environmental impact.” Not only did the proposed Rule seek comment on several competing definitions, one of which referred to gauging such impact in part by examination of the “absolute damage” wrought by impingement and entrainment, but in which the EPA noted that “there will be adverse environmental impact whenever there is entrainment or impingement ‘damage’ as a result of a cooling water intake structure.” 67 Fed. Reg. at 17,162. While the EPA did not ultimately adopt any of the definitions it noticed, it is clear that PSEG was “fairly apprise[d]” that the EPA was considering an approach to AEI that looked to entrainment and impingement at the individual level. Nat’l Black Media Coalition, 791 F.2d at 1022. 70
    159. conclusions. Id. While impingement mortality can be readily quantified, the EPA contends, entrainment mortality cannot because many entrained organisms are small, fragile, and prone to disintegrate during entrainment. The EPA also contends that death from entrainment sometimes occurs immediately but other times only after an organism is discharged back into the waterbody. In view of these factors, the EPA claims that it reasonably concluded that the available data did not support an estimate of entrainment survival at the national level. None of the peer reviewers accepted the EPA’s assumption of zero percent survival. For instance, peer reviewer Dr. Mark Bain was “not convinced by the arguments presented that fish do not survive entrainment in significant numbers” and concluded that there is “very strong evidence that entrainment survival is not zero.” Another peer reviewer, Dr. Charles Hocutt, concluded that the EPA’s assumption is based on inference and innuendo and does not statistically refute opposing views. Although peer reviewer Dr. Greg Garman stated that the study submitted by the power industry was “very clearly biased” and “too seriously flawed to provide a serious challenge to the EPA position,” he also noted that “EPA’s position is only slightly more defensible” given the lack of rigorous statistical analyses. No peer reviewer, however, expressed the belief that reliable national statistics on entrainment survival exist. Hocutt found “it difficult for the layman and professional alike to draw confident conclusions without a detailed analysis” of the evidence, and Garman suspected a lack of sufficient data “to conduct a definitive and statistically valid test of the EPA zero survival assumption.” While these comments do not, on balance, support the EPA’s assumption, neither do they reflect any meaningful agreement on the incidence of entrainment survival. Given the statutory directive to set national standards and the well-documented 71
    160. uncertainty in the entrainment data, the EPA was well within its authority to determine that it could not provide a reasonable estimate of entrainment survival on a national basis. Judicial review is considerably deferential when “the agency’s decision rests on an evaluation of complex scientific data within the agency’s technical expertise.” Texas Oil & Gas Ass’n, 161 F.3d at 934; City of Waukesha v. EPA, 320 F.3d 228, 247 (D.C. Cir. 2003) (stating that an agency is entitled to “an extreme degree of deference . . . when it is evaluating scientific data within its technical expertise” (citation and internal quotation marks omitted)). Moreover, “it is within EPA’s discretion to decide that in the wake of uncertainty, it would be better to give the values a conservative bent rather than err on the other side.” Am. Iron & Steel Inst. v. EPA, 115 F.3d 979, 993 (D.C. Cir. 1997). Indeed, one peer reviewer expressly noted that the EPA had adopted a “conservative approach” by its assumption of zero entrainment survival in the Rule. It is thus clear that the EPA acted well within its discretion in presuming zero entrainment survival after the Agency had reviewed a substantial body of complex scientific data, and acknowledging that the evidence is inconclusive, it adopted a conservative approach. For these reasons and those stated in Riverkeeper I, we therefore “defer to the EPA’s judgment of how best to define and minimize ‘adverse environmental impact.’” 358 F.3d at 197. D. Nuclear Plants Entergy contends that the Phase II Rule fails to account for its purportedly disproportionate impacts on nuclear power plants and is therefore arbitrary and capricious. Entergy argues that nuclear facilities face unique safety concerns associated with the stable flow of cooling water to ensure safe reactor operation and shutdown. Any change in water intake or 72
    161. obstruction of water intake systems due to, for example, the clogging of screens, it argues further, affects nuclear power facilities in specific and serious ways. Entergy takes the position that the EPA failed to account for these issues in the Phase II Rule. We disagree because the record demonstrates adequate consideration by the EPA of nuclear plants’ particular concerns. The EPA considered and responded to comments from nuclear facilities during the rulemaking process. Most importantly, the Agency considered whether the Rule’s requirements presented any concerns relating to the safety of nuclear facilities. 69 Fed. Reg. at 41,585 (noting that the EPA had coordinated with the Nuclear Regulatory Commission to ensure that there would not be a conflict between the EPA Rule and safety requirements applicable to nuclear facilities). The EPA ultimately included in the Phase II Rule a provision that accounts for this concern by providing for a site-specific compliance alternative for nuclear facilities. This provision states that if a nuclear facility “demonstrate[s] to the [EPA] based on consultation with the Nuclear Regulatory Commission that compliance with this subpart would result in a conflict with a safety requirement established by the Commission, the [EPA] must make a site-specific determination of best technology available for minimizing adverse environmental impact that would not result in a conflict.” 40 C.F.R. § 125.94(f). We defer to the EPA’s determination that this compliance alternative ensures that any safety concerns unique to nuclear facilities will prevail over application of the general Phase II requirements. See Nat’l Wildlife Fed’n, 286 F.3d at 570 (noting that appellate courts give an agency considerable discretion when it has weighed and balanced the appropriate factors); BP Exploration & Oil, Inc. v. EPA, 66 F.3d 784, 802 (6th Cir. 1995) (“The overriding principle in our review of the Final Rule is that the agency has broad discretion to weigh all relevant factors 73
    162. during rulemaking. The CWA does not state what weight should be accorded to the relevant factors; rather, the Act gives EPA the discretion to make those determinations.”). Moreover, we are persuaded that the generous cost-cost compliance alternative, which we remand for lack of notice but do not address on the merits, may further account for Entergy’s concerns. Accordingly, we deny the petition for review insofar as it challenges the Rule’s application to nuclear facilities. E. Independent Suppliers The Phase II Rule provides that a large, existing facility is subject to the Rule’s requirements even when it obtains cooling water from an independent supplier that is not itself a Phase II existing facility. 40 C.F.R. § 125.91(c). Put differently, a Phase II facility can purchase cooling water only from suppliers whose intake structures are in compliance with the Phase II Rule. The provision is intended to prevent circumvention of the Rule by purchasing cooling water from non-Phase II entities. UWAG argues that the EPA gave inadequate notice of the scope of this so-called third-party or independent-supplier Rule. We agree. UWAG contends that while the Phase I Rule included an independent-supplier provision similar to the one at issue here, the parallel provision of the Phase I Rule applies only to third-party suppliers that are not point sources, and thus do not need discharge permits and are not subject to any rule promulgated pursuant to section 316(b).38 UWAG argues that the Rule’s 38 The Phase I Rule provided that [u]se of a cooling water intake structure includes obtaining cooling water by any sort of contract or arrangement with an independent supplier (or multiple suppliers) of cooling water if the supplier or suppliers withdraw(s) water from waters of the United States. . . . [t]his provision is intended to prevent 74
    163. proposal indicated that the Phase II provision would track the language of the Phase I provision. UWAG contends, therefore, that the EPA gave inadequate notice of the more broadly phrased provision that was actually promulgated: a rule applying both to the intake structures of third- parties that are not point sources, and therefore not subject to direct regulation under section 316(b), as well as to facilities with intake structures that will be governed by the Phase III rule, which will encompass smaller power plants and other facilities. The issue is thus whether the EPA provided adequate notice that the Rule ultimately promulgated would impose Phase II requirements on Phase III facilities that supply cooling water to Phase II facilities. As we have noted, our inquiry into whether an agency has provided adequate notice of its rulemaking as required by the APA is guided by the “logical outgrowth” test. Nat’l Black Media Coalition, 791 F.2d at 1022. That is, we must determine whether the Agency’s notice fairly apprised interested parties of the rulemaking, id., or whether the final Rule was sufficiently remote or distant from the Agency’s proposal to constitute a “surprise switcheroo,” Envtl. Integrity Project, 425 F.3d at 996. The proposed Rule published in the Federal Register stated that “[u]se of a cooling water intake structure includes obtaining cooling water by any sort of contract or arrangement with an independent supplier (or multiple suppliers) of cooling water if the supplier or suppliers withdraw(s) water from waters of the United States.” 67 Fed. Reg. at 17,220. The notice then stated that the provision was intended “to prevent circumvention of these circumvention of these requirements by creating arrangements to receive cooling water from an entity that is not itself a point source. 40 C.F.R. § 125.81(b). 75
    164. requirements by creating arrangements to receive cooling water from an entity that is not itself a point source,” id. (emphasis added), indicating that the provision would track the Phase I Rule’s language. The initial language of the provision appearing in the proposal – defining “independent supplier” as any provider that withdraws water from waters of the United States – is virtually identical to the language in the final Rule.39 The final Rule, however, states that it “is intended to prevent circumvention of these requirements by creating arrangements to receive cooling water from an entity that is not itself a Phase II existing facility.” 40 C.F.R. § 125.91(c) (emphasis added). This difference, while small, is not insignificant. As noted, under the proposed Rule, Phase II facilities could purchase cooling water from facilities complying with the Phase I, II, or III requirements. Under the final Rule, by contrast, Phase II facilities can purchase cooling water only from facilities complying with the Phase II Rule. The proposal therefore apprised affected parties of the general subject, but not the scope, of the Rule ultimately promulgated. Interested parties were thus given notice that the EPA sought to prevent circumvention of its rules and an opportunity to comment on this general policy, but could not have anticipated the final Rule’s scope. Indeed, while the final provision has roots in the proposal, it clearly reaches further than the proposed provision and even the more stringent Phase I Rule. Affected parties would therefore have had no reason to anticipate the Agency’s final 39 The final Rule provides that “[u]se of a cooling water intake structure includes obtaining cooling water by any sort of contract or arrangement with one or more independent suppliers of cooling water if the supplier withdraws water from waters of the United States but is not itself a Phase II existing facility . . . . This provision is intended to prevent circumvention of the requirements by creating arrangements to receive cooling water from an entity that is not itself a Phase II existing facility.” 40 C.F.R. § 125.91(c). 76
    165. course in light of the initial notice. Because the EPA provided inadequate notice of the scope of the Phase II Rule’s independent-supplier provision, we conclude that the Rule ultimately promulgated is not a “logical outgrowth” of the proposed Rule. Nat’l Black Media Coalition, 791 F.2d at 1022. Our conclusion rests in large part on the similarity between the Phase I Rule’s independent-supplier provision and the proposed Phase II Rule’s parallel provision. Given that the requirements under the Phase I Rule are more stringent than those imposed under the Phase II Rule, the proposal provided no notice that the Phase II Rule’s independent-supplier provision would be more stringent than the Phase I Rule’s provision. We therefore remand this aspect of the Rule. F. Definition of “Great Lakes” The entrainment performance standard of 40 C.F.R. § 125.94(b)(2) applies to facilities that use cooling water “withdrawn from . . . one of the Great Lakes.” 40 C.F.R. § 125.49(b)(2)(ii)(A). “Great Lakes,” however, is not defined in the Rule. An affidavit of UWAG’s counsel states that UWAG members have been told by state regulators that they have been told by EPA Headquarters that EPA would apply the Great Lakes national performance standards regarding impingement and entrainment to the cooling water intake structures located in the Great Lakes connecting channels or in waterways with open fish passage to a Great Lake and within 30 miles from a Great Lake. UWAG argues that interested parties were given no notice of this interpretation of the Phase II Rule or opportunity to comment on it and that the interpretation has no record support. UWAG also remarks that the EPA mentioned in the preamble to the Rule that in assessing the national 77
    166. environmental benefits of its final Phase II Rule, it had evaluated the benefits in seven study regions. The EPA defined the Great Lakes region for that purpose as follows: The Great Lakes region includes all facilities in scope of the Phase II rule that withdraw water from Lakes Ontario, Erie, Michigan, Huron, and Superior or are located on a waterway with open fish passage to a Great Lake and within 30 miles of the lake. 69 Fed. Reg. at 41,655. UWAG contends that the EPA never indicated that this definition would apply to § 125.94(b)(2) and seeks either a ruling that “Great Lakes” has its ordinary meaning or a remand for an express definition of what the term means. Notwithstanding UWAG’s proffer that the EPA has informally interpreted “Great Lakes,” the Rule itself does not define what is encompassed by the term, and UWAG has provided no documentary evidence that the EPA has issued a formal and binding definition or even applied a particular definition in a permitting proceeding. There is, therefore, no final agency action for us to review. We agree with the holding of the Seventh Circuit in American Paper Institute, Inc. v. Environmental Protection Agency, that in the absence of a formal and binding rule or some other final agency action, judicial review is not available at this time. 882 F.2d 287, 289 (7th Cir. 1989). We therefore dismiss for lack of jurisdiction so much of the petition for review as challenges the purported definition of “Great Lakes.” G. Preemptive Preservation of Issues UWAG has purported to “preserve” the right to raise new challenges to the Phase II Rule if we remand significant aspects of it to the EPA because UWAG views the Rule as an integrated whole. If certain aspects of the Rule are remanded, UWAG suggests, previously unobjectionable provisions may become, in its view, unacceptable. We are not sure what 78
    167. challenges UWAG seeks to preserve. Of course, UWAG will have the right to challenge any rule the EPA may promulgate on remand through a new petition for review. See 33 U.S.C. § 1369(b). Insofar as UWAG seeks to raise further challenges following the issuance of our ruling but before the EPA acts on remand, however, it waived those challenges by failing to raise them in the briefs it has already submitted to this Court. See Norton v. Sam’s Club, 145 F.3d 114, 117 (2d Cir. 1998) (noting that issues not argued in a party’s briefs are considered waived). We thus reject UWAG’s claim to have preserved the right to raise new challenges to the Rule currently before us on this petition for review. CONCLUSION For the foregoing reasons, the state and environmental petitioners’ petitions are granted in part and denied in part, and the industry petitioners’ petitions granted in part, denied in part, and dismissed in part for lack of jurisdiction. We remand to the EPA the provision establishing BTA so that it may provide either a reasoned explanation of its decision or a new determination of BTA based on permissible considerations. We further remand the site-specific cost-cost variance and the TIOP provision because the cost-cost variance and subpart (d)(2) of the TIOP provision provided inadequate notice and both depend on the BTA determination, which we remand today. We remand as based on impermissible constructions of the statute those provisions that (1) set performance standards as ranges without requiring facilities to achieve the greatest reduction of adverse impacts they can; (2) allow compliance through restoration measures; and (3) authorize a site-specific cost-benefit variance as impermissible under the statute. We further remand for notice and comment the independent suppliers provision. We 79
    168. also direct the EPA on remand to adhere to the definition of “new facility” set forth in the Phase I Rule or to amend that definition by rulemaking subject to notice and comment. Finally, we dismiss for lack of jurisdiction so much of the petitions as challenges the purported definition of “Great Lakes” and deny as moot the motions to strike certain material from the record and to supplement the record with other material. 80
    169. UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT August Term, 2004 (Argued: January 5, 2005 Decided: February 16, 2006) Docket No. 04-0743-cv _____________________________________________ JOHN PAUL HANKINS, Plaintiff-Appellant, v. ERNEST S. LYGHT and NEW YORK ANNUAL CONFERENCE OF THE UNITED METHODIST CHURCH, Defendants-Appellees, STONY BROOK COMMUNITY CHURCH, Defendant. ____________________________________ SOTOMAYOR, Circuit Judge, dissenting: The Religious Freedom and Restoration Act (“RFRA”) is not relevant to this dispute. First, appellees have unambiguously indicated that they do not seek to raise a RFRA defense, and the statute’s protections, even if otherwise applicable, are thus waived. Second, the statute does not apply to disputes between private parties. Third, we should affirm the judgment of the district court without reaching the RFRA issue on the ground that Supreme Court and Second Circuit precedent compels a finding that the Age Discrimination in Employment Act (ADEA), 29 U.S.C. § 621 et seq., does not govern disputes between a religious entity and its spiritual leaders. 1
    170. The majority’s opinion thus violates a cardinal principle of judicial restraint by reaching unnecessarily the question of RFRA’s constitutionality. For these reasons, I respectfully dissent. A. Because the parties’ original submissions to this Court mentioned RFRA without providing a detailed analysis of either the Act’s constitutionality or its relevance to this case, we ordered supplemental briefing. The letter-briefs submitted in response to our order make clear that appellees have waived any RFRA defense. In several portions of appellees’ supplemental brief that the majority neglects to mention, appellees state plainly that they do not intend to raise a RFRA defense. Appellees’ supplemental brief explains that “the reference to RFRA in Appellees’ [original] brief was for the limited purpose of providing an example of how critically the question of ‘entanglement’ was viewed” by Congress. In other words, appellees’ aim was not to rely on the statute as a defense against appellant’s claims, but merely to illustrate Congress’s agreement with the proposition that “entanglement of the Government in church affairs [was] prohibited by the First Amendment.” (emphasis added). In fact, appellees explicitly reject the application of RFRA to their claims because they believe that the statute does not apply to suits between private parties, and “the case at bar is a matter relating to a private employment situation and does not involve actions by the government.” The letter-brief concludes: “We do not think this issue [RFRA] is determinative in the matters raised by this case.” While the majority might find appellees’ position unwise or “supris[ing],” Maj. Op. at 12, appellees’ letter-brief clearly waives any RFRA defense.1 1 In addition to ignoring most of the language in the appellees’ brief relating to waiver, the majority opinion makes two factually erroneous claims regarding the content of the supplemental letter-briefs. First, the majority writes that “appellant argues that the RFRA is 2
    171. The majority does not contest that RFRA’s protections are generally waivable. Maj. Op. at 13; see United States v. Amer, 110 F.3d 873, 879 n.1 (2d Cir. 1997); see also In re Watson, 403 F.3d 1, 7 (1st Cir. 2005) (holding that RFRA argument was forfeited); Bethesda Lutheran Homes & Servs., Inc. v. Leean, 122 F.3d 443, 449 (7th Cir. 1997) (holding that RFRA argument was waived); Cochran v. Morris, 73 F.3d 1310, 1317 n.3 (4th Cir. 1996) (holding that RFRA claim was waived). In the majority’s view, however, because appellees’ arguments relate to rights protected under RFRA—namely, First Amendment religious rights—appellees have “[i]n substance” relied on RFRA and thus have not, despite their explicit disclaimer, waived its protections. Maj. Op. at 14. The majority’s refusal to recognize appellees’ waiver in this case is at odds with RFRA’s text, which provides that individuals “may assert” a RFRA defense when challenging a substantial burden on their religious rights, not that they must assert a RFRA defense when religious rights are burdened. 42 U.S.C. § 2000bb-1(c) (emphasis added). Moreover, the majority’s insistence on the viability of a RFRA defense despite appellees’ waiver leads the Court to assess RFRA’s constitutionality unnecessarily. See Cutter v. Wilkinson, 125 S. Ct. 2113, 2118 n.2 (2005) (noting that the Supreme Court has “not had occasion to rule” whether RFRA “remains operative as to the Federal Government”); see also City of Boerne v. Flores, 521 inapplicable only because it is unconstitutional.” Maj. Op. at 12. On the contrary, appellant argues also that RFRA is inapplicable because “[t]here is no substantial burden to the free exercise of religion that could result from a ruling by this court” that appellees violated the ADEA. The majority also contends that “[t]he parties have not briefed the issue of how [RFRA] impacts the merits of this case.” Maj. Op. at 24. Both parties, however, have addressed the question of RFRA’s relevance to this suit. Appellant argues that RFRA is inapplicable because “[t]here is no substantial burden to the free exercise of religion” in this case, and that, in any event, “application of RFRA to federal law is unconstitutional.” Appellees, in turn, argue that RFRA is constitutional but should not affect the outcome of this case. 3
    172. U.S. 507, 532-36 (1997) (invalidating RFRA as applied to state law). By going out of its way to reach this constitutional question, the majority violates one of the “cardinal rules governing the federal courts,” namely, “never to anticipate a question of constitutional law in advance of the necessity of deciding it.” Brockett v. Spokane Arcades, Inc., 472 U.S. 491, 501 (1985) (citation and internal quotation marks omitted).2 The majority’s approach is also inconsistent with our case law, which has recognized waiver of statutory religious rights even where a litigant raises claims under the Free Exercise Clause. In Fifth Avenue Presbyterian Church v. City of New York, 293 F.3d 570 (2d Cir. 2002), for example, the plaintiff argued before this Court that its religious rights had been violated under both the First Amendment and the Religious Land Use and Institutionalized Persons Act (RLUIPA)—a statute virtually identical to RFRA in all aspects relevant to the issue of waiver in the instant case.3 Although we ruled on the merits of the plaintiff’s Free Exercise claim in Fifth Avenue Presbyterian Church, we refused to reach the RLUIPA issue because the plaintiff had raised it for the first time on appeal. See id. at 576. It is impossible to square our refusal to 2 The other “cardinal rule[]” cited in Brockett is that federal courts should “never . . . formulate a rule of constitutional law broader than is required by the precise facts to which it is to be applied.” 472 U.S. at 501 (citation and internal quotation marks omitted). 3 Like RFRA, RLUIPA prohibits the government from imposing substantial burdens on religion even where the burden results from a neutral law of general applicability. See 42 U.S.C. § 2000cc. RLUIPA’s remedial provision is virtually identical to RFRA’s. Compare 42 U.S.C. § 2000cc-2(a) (“A person may assert a violation of this Act as a claim or defense in a judicial proceeding and obtain appropriate relief against a government.”), with 42 U.S.C. § 2000bb-1(c) (“A person whose religious exercise has been burdened in violation of this section may assert that violation as a claim or defense in a judicial proceeding and obtain appropriate relief against a government.”). RLUIPA is simultaneously more broad and more narrow than RFRA, however. RLUIPA is more broad because it still reaches state law. See Cutter v. Wilkinson, 125 S. Ct. 2113 (2005). It is more narrow because it applies only to certain government actions involving land use regulations and correctional facilities. See 42 U.S.C. §§ 2000cc, 2000cc-1. 4
    173. consider plaintiff’s belated RLUIPA claim in Fifth Avenue Presbyterian Church with our refusal to recognize the defendant’s voluntary waiver of a RFRA defense in the instant case. There is no meaningful difference between RFRA and RLUIPA that could justify such inconsistent results. The most troublesome aspect of the majority’s ruling on waiver, however, is that it fundamentally misconstrues the nature of RFRA and First Amendment rights, and, in doing so, directly contradicts Supreme Court precedent. The majority holds that because appellees invoke the First-Amendment-based “ministerial exception” and allege interference with their rights under the Free Exercise and Establishment Clauses, they have effectively “ask[ed] us to apply the RFRA, but not to mention it.” Maj. Op. at 14. This is incorrect. RFRA and the First Amendment do not provide identical protections, and the invocation of First Amendment rights—whether under the Free Exercise or the Establishment Clause—does not necessarily implicate RFRA. As interpreted by the Supreme Court, for example, the Free Exercise Clause does not normally “inhibit enforcement of otherwise valid laws of general application that incidentally burden religious conduct,” Cutter, 125 S. Ct. at 2118 (citing Employment Div., Dep’t of Human Res. v. Smith, 494 U.S. 872, 878-82 (1990)), such as the ADEA. RFRA, in contrast, requires strict scrutiny of such laws where the incidental burden on religion is substantial. See 42 U.S.C. § 2000bb-1. Indeed, the fact that RFRA’s protections sweep more broadly than those of the Free Exercise Clause provided the principal basis for the Supreme Court’s holding in City of Boerne v. Flores that RFRA could not be considered “preventive” or “remedial” legislation under Section Five of the Fourteenth Amendment. 521 U.S. at 532. The Court found RFRA’s protections “so out of proportion to a supposed remedial or preventive object that [the statute] 5
    174. cannot be understood as responsive to, or designed to prevent, unconstitutional behavior.” Id. Because RFRA went so far beyond what the First Amendment required, the Boerne Court understood the statute as “attempt[ing] a substantive change in constitutional protections”—a change that Congress was not authorized to make. Id. Although Boerne does not resolve the issue of RFRA’s constitutionality as applied to federal law, as opposed to state law,4 the case does firmly establish that RFRA and the Free Exercise Clause create different standards for the protection of religion and that RFRA’s substantive protections extend far beyond what the Free Exercise Clause requires. Thus, the majority’s suggestion that a claim alleging unconstitutional interference with the free exercise of religion is “[i]n substance” a RFRA claim flies in the face of Boerne.5 See also Kaufman v. McCaughtry, 419 F.3d 678, 681 (7th Cir. 2005) (noting that RFRA provides protections beyond those guaranteed by the First Amendment); Brzonkala v. Va. 4 I express no view on whether RFRA is constitutional as applied to federal law because it is unnecessary for us to reach this question. 5 Before Boerne, a reasonable argument could have been made that all Free Exercise Clause claims required scrutiny under RFRA. The Tenth Circuit, for example, held in Werner v. McCotter, 49 F.3d 1476 (10th Cir. 1995), that RFRA applied to all Free Exercise claims, even where the parties had not raised a claim or defense under the statute. In a subsequent en banc opinion, however, the Tenth Circuit recognized that Boerne had undermined its earlier conclusion: [I]n Werner, decided prior to City of Boerne, we were laboring under the false understanding that RFRA “legislatively overturned a number of recent Supreme Court [free exercise] decisions” and that it created a new rule of constitutional law. Thus, we concluded that because the language of RFRA made it applicable to “all cases where free exercise of religion is substantially burdened,” its standard ought to control a Free Exercise Clause claim even when not raised. Because the Supreme Court has made clear that the Werner court’s assumptions about RFRA were faulty, its rationale is no longer convincing. United States v. Hardman, 297 F.3d 1116, 1125 n.15 (10th Cir. 2002) (en banc) (alteration in original) (citations omitted). 6
    175. Polytech. Inst. & State Univ., 169 F.3d 820, 881-82 (4th Cir. 1999) (“The [RFRA] created a right of religious exercise that was more generous than that right protected by the Constitution . . . .”), aff’d sub nom. United States v. Morrison, 529 U.S. 598 (2000). Nor can the majority plausibly argue that appellees’ Establishment Clause defense necessarily implicates RFRA. To satisfy the Establishment Clause: (1) the statute must have “a secular legislative purpose”; (2) the statue’s “principal or primary effect must be one that neither advances nor inhibits religion”; and (3) “the statute must not foster an excessive government entanglement with religion.” Lemon v. Kurtzman, 403 U.S. 602, 612-13 (1971) (citation and internal quotation marks omitted). Thus, like the Free Exercise Clause, the Establishment Clause imposes less stringent requirements on federal statutes than RFRA, which mandates strict scrutiny even of neutral, generally applicable laws that incidentally impose substantial burdens on religion.6 Furthermore, Congress made clear in enacting RFRA that the statute was not intended to have any effect on Establishment Clause claims. See 42 U.S.C. § 2000bb-4 (“Nothing in this chapter shall be construed to affect, interpret, or in any way address that portion of the First Amendment prohibiting laws respecting the establishment of religion.”). The majority’s assertion that appellees have presented a RFRA defense in “all but name” would be more plausible if something in appellees’ briefs indicated that they sought protection beyond that which the Constitution guarantees. Nothing in the briefs, however, supports such a conclusion. Appellees’ briefs rely heavily on the Free Exercise Clause, the Establishment 6 As recently emphasized by a plurality of Justices, the Supreme Court has not applied the Lemon test with much consistency. See Van Orden v. Perry, 125 S. Ct. 2854, 2860-61 (2005) (plurality opinion). I am unaware of any application of the Establishment Clause, however, that would invalidate a neutral, generally applicable law imposing an incidental but substantial burden on religion. 7
    176. Clause, and case law interpreting those provisions. Nowhere do they ask that the Court apply a standard stricter than what the First Amendment requires.7 On the contrary, appellees’ supplemental brief explicitly disclaims any intent to rely on RFRA. In sum, because appellees’ religious freedom argument relies only on the Free Exercise and Establishment Clauses, and because the substance of the protections afforded by these constitutional provisions differs considerably from the protections afforded by RFRA, as interpreted by the Supreme Court, I cannot agree with the majority’s conclusion that appellees have “[i]n substance” relied on RFRA. Maj. Op. at 14. The majority’s refusal to recognize appellees’ clear waiver of any RFRA defense appears to rest, in part, on its disagreement with the reasons underlying appellees’ decision not to pursue such a defense. Specifically, the majority takes issue with appellees’ conclusion that RFRA does not apply to suits between private parties. See Maj. Op. at 10-11. I am unaware of any other case in which this Court, after ordering supplemental briefing to allow a party to discuss a waivable statutory defense, refused to recognize the party’s subsequent waiver of that defense on the ground that the Court disagreed with counsel’s reasons for declining to rely on the statute. Cf. DeLuca v. Lord, 77 F.3d 578, 588 (2d Cir. 1996) (observing that where defense counsel in a 7 The closest appellees come to making a RFRA argument, as opposed to a First Amendment argument, is a statement in their original brief that application of the ADEA would “substantially burden the free exercise rights of the United Methodist Church.” This is the only occasion, however, in which appellees employ RFRA-like language by referring to the alleged intrusion on their rights as a “substantial[] burden,” and it is clear from context that the statement formed part of appellees’ Establishment Clause argument that application of the ADEA would foster an excessive entanglement with religion. The brief did not purport to raise a separate defense under RFRA. In any event, even if appellees’ mention of a “substantial[] burden” in their original brief could be generously construed as an attempt to present a RFRA defense, appellees’ subsequent letter-brief makes clear that this was not their intent and that they do not seek to invoke RFRA’s protections. 8
    177. criminal case has made “a considered decision, after investigation, not to pursue” a particular defense, this Court should be “extremely reluctant to second-guess that decision”). Even if such second-guessing of a party’s decision not to pursue a particular defense is appropriate in certain limited circumstances, the majority’s refusal to acknowledge the clear waiver in this case is improper, given that appellees are adequately represented by counsel and based their waiver on a reasonable interpretation of the law. Indeed, the majority concedes that it is unable to find a single holding that contradicts appellees’ view that RFRA does not apply to suits between private parties. See Maj. Op. at 25 n.4. Quoting the Supreme Court, the majority argues that “[w]hen an issue or claim is properly before the court, the court is not limited to the particular legal theories advanced by the parties, but rather retains the independent power to identify and apply the proper construction of governing law.” Maj. Op. at 14 (quoting Kamen v. Kemper Fin. Servs., Inc., 500 U.S. 90, 99 (1991)). This certainly is true, but it only begs the question of whether the “issue or claim is properly before the court.” Id. Given appellees’ clear indication that they do not seek to rely on RFRA, the applicability of that statute is not before us. The majority’s disagreement with appellees’ reasoning does not change that fact. B. Even assuming, arguendo, that appellees’ clear disclaimer of any RFRA defense does not suffice to waive such a defense, I would find it improper to remand the case to the district court for consideration of RFRA’s implications because I disagree with the majority’s conclusion regarding RFRA’s applicability. RFRA by its terms does not apply to suits between private parties. 9
    178. Two provisions of the statute implicitly limit its application to disputes in which the government is a party. Section 2000bb-1(c) states that “[a] person whose religious exercise has been burdened in violation of this section may assert that violation as a claim or defense in a judicial proceeding and obtain appropriate relief against a government” (emphasis added). In the majority’s view, we should read this provision as “broadening, rather than narrowing, the rights of a party asserting the RFRA.” Maj. Op. at 11. This interpretation would be questionable even if Section 2000bb-1(c) were the only provision of the statute affecting the question of whether RFRA applies to private suits. When read in conjunction with the rest of the statute, however, it becomes clear that this section reflects Congress’s understanding that RFRA claims and defenses would be raised only against the government. For instance, section 2000bb-1(b) of RFRA provides that where a law imposes a substantial burden on religion, the “government” must “demonstrate[] . . . that application of the burden” is the least restrictive means of furthering a compelling governmental interest (emphasis added). The statute defines “demonstrate” as “meet[ing] the burdens of going forward with the evidence and of persuasion.” 42 U.S.C. § 2000bb-2(3). Where, as here, the government is not a party, it cannot “go[] forward” with any evidence.8 In my view, this provision strongly suggests that Congress did not intend RFRA to 8 There are two plausible ways to reconcile section 2000bb-1(b) of RFRA with the majority opinion in this case. The first would be to require government intervention in every private suit where one of the parties asserts that a law has—even incidentally—imposed a substantial burden on religious freedom. Absent a clear statement that Congress intended such a result, it is not the role of this Court to mandate such widespread and automatic federal intervention in lawsuits between private parties. Moreover, were we to read the statute to require government intervention, this would surely underscore the wisdom in recognizing appellees’ explicit waiver of any RFRA defense. The second would be to force private parties to bear the burden RFRA places on the government. The statute gives no indication that Congress intended private parties to bear such a burden, nor would it be appropriate to require private parties to satisfy the stringent burden RFRA places on the government. 10
    179. apply in suits between private parties.9 I recognize that according to RFRA’s “applicability” section, the statute applies “to all Federal law.” 42 U.S.C. § 2000bb-3. This provision, however, is not inconsistent with a finding that the statute does not apply to suits between private parties. Read in conjunction with the rest of the statute, the provision simply requires courts to apply RFRA “to all Federal law” in any lawsuit to which the government is a party. The majority objects that this interpretation makes RFRA’s protections improperly dependent on whether a private party, as opposed to the EEOC, brings suit under the ADEA. “[T]he substance of the ADEA’s prohibitions,” the majority argues, “cannot change depending on whether it is enforced by the EEOC or an aggrieved private party.” Maj. Op. at 11. The majority does not explain, however, why this is so. If RFRA amends all federal statutes as they apply to suits in which the government is a party, then the substance of the ADEA’s prohibitions most certainly can change depending on who enforces it. Although the majority evidently finds this unsatisfactory from a policy perspective, there is no acceptable reading of the statute that would yield the kind of consistency the majority desires. Finally, as noted above, the majority concedes that it is unable to locate a single court holding that directly supports its novel application of RFRA to a suit between private parties. 9 All of the examples cited in the Senate and House Reports on RFRA involve actual or hypothetical lawsuits in which the government is a party. See S. Rep. No. 103-111 (1993); H.R. Rep. 103-88 (1993). The lack of even a single example of a RFRA claim or defense in a suit between private parties in these Reports tends to confirm what is evident from the plain language of the statute: It was not intended to apply to suits between private parties. 11
    180. See Maj. Op. at 25 n.4.10 This is telling, for Congress enacted RFRA over twelve years ago. The plain language of the statute, its legislative history, and its interpretation by courts over the past twelve years demonstrate that RFRA does not apply to suits between private parties. C. Even if appellees had not waived the RFRA defense, and even if RFRA applied to suits between private parties, I would still find it unnecessary to reach the RFRA issue, or to analyze the statute’s constitutionality, because Supreme Court and Second Circuit precedent compel the conclusion that the ADEA does not apply to this dispute. Because the ADEA does not apply, there is no “substantial burden” on religion, and RFRA, even if constitutional, is irrelevant. In analyzing the ADEA’s applicability to this case, we find guidance in the principles articulated by the Supreme Court in NLRB v. Catholic Bishop of Chicago, 440 U.S. 490 (1979). To determine whether the National Labor Relations Act (NLRA) authorized the National Labor Relations Board to regulate labor relations between a parochial school and its faculty, the Catholic Bishop Court considered two principal questions. See id. at 501. First, it considered whether this application of the NLRA raised First Amendment concerns. The Court concluded that it did, explaining that judicial oversight of labor relations at a parochial school would risk excessive entanglement between secular and religious authorities in violation of the Establishment Clause. Id. at 501-04. Second, the Court examined whether Congress expressed an intention to apply the statute to religious institutions despite these constitutional concerns. Because the Court discerned no such congressional intent, it construed the NLRA in a manner 10 The majority cites dicta from district court opinions in Indiana and Arizona but concedes that those courts “assumed” that RFRA could apply without analyzing the issue in any depth. See Maj. Op. at 25-26 n.4. 12
    181. that avoided the constitutional difficulty, holding that the statute did not apply to labor disputes between parochial schools and their employees.11 Id. at 504-07; see id. at 500 (citing the longstanding principle that acts of Congress “ought not be construed to violate the Constitution if any other possible construction remains available”) (citing Murray v. The Charming Betsy, 6 U.S. (2 Cranch) 64, 118 (1804)); see also Hsu By & Through Hsu v. Roslyn Union Free Sch. Dist. No. 3, 85 F.3d 839, 854 (2d Cir. 1996) (noting this Court’s “consistent . . . practice of avoiding constitutional questions where possible”). Distinguishing Catholic Bishop, we concluded in DeMarco v. Holy Cross High Sch., 4 F.3d 166 (2d Cir. 1993), that the ADEA, unlike the NRLA, generally applies to religious institutions. Id. at 172. Specifically, we held that a former lay teacher could bring an ADEA action against a parochial school even though the teacher performed some religious duties. Id. at 168-72. In so holding, we observed that the ADEA, unlike the NRLA, does not pose the risk of “extensive or continuous administrative or judicial intrusion into the functions of religious institutions.” Id. at 170. Instead, the ADEA involves “‘routine regulatory interaction’” and requires “‘no inquiries into religious doctrine, no delegation of state power to a religious body, and no detailed monitoring [or] close administrative contact between secular and religious bodies.’” Id. at 170 (quoting Hernandez v. Comm’r, 490 U.S. 680, 696-97 (1989) (internal quotation marks omitted)); see also id. (“In age discrimination cases, the EEOC’s authority extends only to the investigation and attempted conciliation or resolution of individual or group complaints; it is limited in time and scope.” (citation and internal quotation marks omitted)). 11 The Court reached this conclusion even though the NLRA did not expressly include religious institutions in its list of eight types of employers exempted from the act. See Catholic Bishop, 440 U.S. at 511 (Brennan, J., dissenting) (citing 29 U.S.C. § 152(2)). 13
    182. These factors distinguished the ADEA from the NLRA.12 As a general rule, federal courts may decide civil disputes, including employment discrimination disputes, between a religious institution and its employees without violating the First Amendment. See Merkos L’Inyonei Chinuch, Inc. v. Otsar Sifrei Lubavitch, Inc., 312 F.3d 94, 99-100 (2d Cir. 2002) (citing Martinelli v. Bridgeport Roman Catholic Diocesan Corp., 196 F.3d 409, 431 (2d Cir. 1999); Gargano v. Diocese of Rockville Ctr., 80 F.3d 87, 90 (2d Cir. 1996); DeMarco, 4 F.3d at 172; cf. Employment Div., Dep’t of Human Res. v. Smith, 494 U.S. 872, 879 (1990) (“[T]he right of free exercise does not relieve an individual of the obligation to comply with a valid and neutral law of general applicability on the ground that the law proscribes (or prescribes) conduct that his [or her] religion prescribes (or proscribes).” (internal quotation marks omitted)). The instant case, however, presents the more difficult question of whether this general rule applies in the narrow context of a forced-retirement dispute between a religious body and a member of its clergy. As we noted in DeMarco, the relationship between a religious institution and certain of its employees may be “so pervasively religious that it is impossible to engage in an age- discrimination inquiry without serious risk of offending the Establishment Clause.” Id. at 172. This risk is particularly serious in employment disputes between religious institutions and their spiritual leaders where the enforcement of statutes like the ADEA might threaten the “power of religious bodies to decide for themselves, free from state interference, matters of church government as well as those of faith and doctrine.” Serbian E. Orthodox Diocese for the U.S. & 12 As discussed below, DeMarco also found the ADEA distinguishable from the NLRA because Congress clearly intended the ADEA to apply to religious institutions. See 4 F.3d at 172. 14
    183. Can. v. Milivojevich, 426 U.S. 696, 722 (1976) (internal quotation marks and alteration omitted). “A church’s selection of its own clergy” is a “core matter of ecclesiastical self-governance” at the “heart” of the church’s religious mission. Bollard v. Cal. Province of the Soc’y of Jesus, 196 F.3d 940, 946 (9th Cir. 1999). Federal court entanglement in matters as fundamental as a religious institution’s selection or dismissal of its spiritual leaders risks an unconstitutional “trespass[] on the most spiritually intimate grounds of a religious community’s existence.” EEOC v. Roman Catholic Diocese of Raleigh, N.C., 213 F.3d 795, 800 (4th Cir. 2000). In light of these serious constitutional concerns, we must ask whether Congress intended to apply the ADEA to religious institutions in their selection of spiritual leaders. See Catholic Bishop, 440 U.S. at 504. We concluded in DeMarco that Congress “implicitly expressed an intention to apply the ADEA to religious institutions.” 4 F.3d at 172. We based this conclusion, in part, on the ADEA’s similarity to Title VII of the Civil Rights Act, 42 U.S.C. § 2000e et seq. “Given that Congress intended to apply Title VII to religious institutions, and that Congress modelled the ADEA’s coverage upon that of Title VII,” we were “convinced that [Congress] also intended to apply the ADEA to such institutions.” Id. at 173. DeMarco, however, involved an employment dispute between a religious institution and a math teacher who, despite having some religious duties, served primarily non-religious functions in a parochial school. Here, in contrast, the dispute is between a minister with primarily religious duties and a church that no longer wishes him to serve as pastor of a congregation. That Congress intended the ADEA and Title VII to apply under the circumstances described in DeMarco does not indicate an intention that those statutes should apply in all circumstances. Nothing in the text, structure, or legislative history of the ADEA indicates an intention to extend 15
    184. its provisions to a religious body’s selection or dismissal of its ministers. See Catholic Bishop, 440 U.S. at 504; DeMarco, 4 F.3d at 169, 172-73. Accordingly, I believe that the ADEA does not apply to the case at bar.13 Because the ADEA does not apply, there is no substantial burden on religion that could trigger RFRA. The majority suggests that reliance on Catholic Bishop (and DeMarco) is unwarranted, because “RFRA [is] the full expression of Congress’s intent with regard to the religion-related issues before us and displace[s] earlier judge-made doctrines that might have been used to ameliorate the ADEA’s impact on religious organizations and activities.” Maj. Op. at 8. Even if RFRA applied to private suits and had not been waived in this case, I would disagree with the majority’s suggestion that the statute completely displaces the Catholic Bishop analysis. Although the Catholic Bishop rule and RFRA serve similar purposes, they require courts to undertake different inquiries. See Univ. of Great Falls v. NLRB, 278 F.3d 1335, 1347 (D.C. Cir. 13 This conclusion is consistent with the holdings of at least seven of our sister Circuits, which have adopted a limited “ministerial exception” that exempts religious institutions on First Amendment grounds from employment discrimination suits brought by clergy members or other employees serving primarily religious roles. See Roman Catholic Diocese of Raleigh, N.C., 213 F.3d at 800, 805; Gellington v. Christian Methodist Episcopal Church, Inc., 203 F.3d 1299, 1304 (11th Cir. 2000); Bollard, 196 F.3d at 949; Combs v. Central Tex. Annual Conf. of the United Methodist Church, 173 F.3d 343, 351 (5th Cir. 1999); EEOC v. Catholic Univ. of Am., 83 F.3d 455, 463 (D.C. Cir. 1996); Young v. N. Ill. Conf. of United Methodist Church, 21 F.3d 184, 187 (7th Cir. 1994); Scharon v. St. Luke’s Episcopal Presbyterian Hosps., 929 F.2d 360, 363 (8th Cir. 1991). Most circuits have reached the constitutional question directly and have held that the First Amendment bars adjudication of ministerial employment disputes. See, e.g., Gellington, 203 F.3d at 1304; Combs; 173 F.3d at 351; Young, 21 F.3d at 187. Here, in contrast, I would apply Catholic Bishop’s principles of statutory construction so as to avoid making definitive pronouncements on the constitutional question. See 440 U.S. at 507; see also Scharon, 929 F.2d at 361-63 (applying the Catholic Bishop analysis to an employment discrimination action brought by a priest). Despite this difference, my conclusion is substantially the same as that of other Circuits: courts may not adjudicate employment discrimination lawsuits brought by clergy members challenging a religious body’s refusal to select or retain them as spiritual leaders. 16
    185. 2002) (holding that the court need not address a university’s RFRA argument because the university was entitled to an exemption under Catholic Bishop, and observing that “RFRA presents a separate inquiry from Catholic Bishop”). Catholic Bishop requires courts, where possible, to interpret statutes in ways that would avoid raising serious constitutional concerns. In some cases, no such interpretation will be reasonably available. In those cases, RFRA may provide an independent avenue both for protecting religious rights and for avoiding definitive resolution of constitutional questions. Thus, RFRA should not be read to supplant the Catholic Bishop inquiry, but to supplement it. Indeed, given that RFRA’s express purpose was to enhance protection for religion, see 42 U.S.C. § 2000bb, it makes little sense to read the statute as eliminating the protection afforded by the Catholic Bishop rule. D. I believe that a remand is a wasteful expenditure of judicial resources and an unnecessary and uninvited burden on the parties. The district court is in no better position than we are to decide either the statutory or constitutional questions presented in this case. In my view, the most appropriate disposition of this case would be to affirm the district court’s dismissal of appellant’s claims on the ground that the ADEA does not apply to employment suits brought against religious institutions by their spiritual leaders. Because the majority’s contrary approach disregards a clear and voluntary waiver, conflicts with RFRA’s text and with binding precedent, and unnecessarily resolves a contested constitutional question, I respectfully dissent.14 14 I take no issue, however, with the analysis of the ADEA’s procedural requirements in section (a) of the majority’s opinion. See Maj. Op. at 5-8. 17
    186. 1 UNITED STATES COURT OF APPEALS 2 3 FOR THE SECOND CIRCUIT 4 5 August Term, 2004 6 7 (Argued: January 5, 2005 Decided: February 16, 2006) 8 9 Docket No. 04-0743-cv 10 11 12 13 JOHN PAUL HANKINS, 14 15 Plaintiff-Appellant, 16 17 v. 18 19 ERNEST S. LYGHT and NEW YORK ANNUAL CONFERENCE OF THE UNITED 20 METHODIST CHURCH, 21 22 Defendants-Appellees, 23 24 STONY BROOK COMMUNITY CHURCH, 25 26 Defendant. 27 28 29 30 B e f o r e: WINTER, SOTOMAYOR, and B.D. PARKER, Circuit 31 Judges. 32 33 Appeal from the dismissal of a minister’s age discrimination 34 action against his church in the Eastern District of New York 35 (Denis R. Hurley, Judge). We hold that the Religious Freedom 36 Restoration Act of 1993 is constitutional as applied to federal 37 law. It therefore amended the ADEA and governs the merits of 38 this action. We vacate and remand for reconsideration in light 39 of the RFRA. 40 Judge Sotomayor dissents in a separate opinion. 41 1
    187. 1 BRUCE MILES SULLIVAN, Stony Brook, 2 New York, for Plaintiff-Appellant. 3 4 FREDERICK K. BREWINGTON, Hempstead, 5 New York, for Defendants-Appellees. 6 7 WINTER, Circuit Judge: 8 9 John Paul Hankins appeals from the dismissal by Judge Hurley 10 of his age discrimination action. Hankins was a clergy member 11 ordained by appellee New York Annual Conference of the United 12 Methodist Church ("NYAC"). He was forced into retirement when he 13 attained the age of 70. Appellee Ernest S. Lyght is the Bishop 14 of the NYAC and has the power to appoint clergy to NYAC churches. 15 Hankins claims that the NYAC’s mandatory retirement policy 16 violates the Age Discrimination in Employment Act of 1967 17 ("ADEA"), 29 U.S.C. § 621 et seq. We hold that the Religious 18 Freedom Restoration Act of 1993 ("RFRA"), 42 U.S.C. § 2000bb et 19 seq., is constitutional as applied to federal law; it therefore 20 amended the ADEA and governs the merits of the principal issue 21 raised by the parties. We vacate the dismissal of Hankins’ 22 complaint and remand for a determination of whether application 23 of the ADEA to Hankins’ relationship with the NYAC and Lyght 24 violates the RFRA. 25 BACKGROUND 26 We assume the existence of the facts as alleged in the 27 complaint. Hankins was ordained by the NYAC and served as a 28 clergy member from 1962 to July 1, 2003. He turned 70 on 2
    188. 1 November 5, 2002, and was forced into retirement on July 1, 2 2003, as prescribed by paragraph 356 of the Methodist Book of 3 Discipline. 4 According to a statement by the Methodist Church's Council 5 of Bishops, the Book of Discipline is neither "sacrosanct" nor 6 "infallible, but . . . is the most current statement of how 7 United Methodists agree to live together" as "an inclusive 8 society without regard to ethnic origin, economic condition, 9 gender, age, or the disabilities of its constituents." The 10 complaint alleges that the Book of Discipline contains "subject 11 matters that are sectarian and ecclesiastical in nature[,] being 12 related to the nature of the Deity and the Trinity, the 13 scriptures, the tenets of the United Methodist Church, the 14 theological grounding of biblical faith, the teachings of John 15 Wesley and/or other religious principles or values (. . . 16 ‘religious considerations')," as well as "subject matters that 17 are secular, temporal and/or civil in nature[,] not being 18 determined, controlled or influenced by any religious 19 considerations." The complaint further claims that paragraph 20 356, under which Hankins was mandatorily retired, "is a secular, 21 temporal, and/or civil subject matter, not being determined, 22 controlled or influenced by any religious considerations." 23 Bishop Lyght told Hankins and other members of the Church 24 that he had the authority to reappoint Hankins as pastor, despite 3
    189. 1 the fact that Hankins is over 70 years old. However, Bishop 2 Lyght also stated that it is his "personal policy (as 3 distinguished from the policy set forth in the Book of 4 Discipline) never to reappoint members of the clergy who have 5 attained age seventy to the church out of which they were 6 retired." 7 Appellant brought an age discrimination charge to the Equal 8 Employment Opportunity Commission ("EEOC") on March 19, 2003. 9 The EEOC issued a Notice of Right to Sue on April 11, 2003. 10 Appellant also filed a Verified Complaint with the New York 11 Division of Human Rights on June 11, 2003; that Complaint was 12 dismissed for administrative convenience on July 1, 2003. 13 Appellant filed the instant suit on July 3, 2003. 14 Appellant’s complaint claimed that the mandatory retirement 15 policy violated the ADEA, the New York Human Rights Law, and the 16 NYAC's covenant with him (Counts I, II, and IV); and that Bishop 17 Lyght's personal policy against reappointing retired clergy 18 violated the ADEA and Human Rights Law (Count III).1 19 Appellees moved to dismiss for lack of subject matter 20 jurisdiction and for failure to state a claim upon which relief 21 could be granted, under Rules 12(b)(1) and (6) respectively. The 22 district court, ruling orally, declined to decide the 12(b)(1) 23 motion, which was apparently based on deficiencies in the EEOC’s 24 review of appellant’s charge. Instead, the court granted the 4
    190. 1 12(b)(6) motion based on a “ministerial exception” to the ADEA -- 2 a rule adopted by several circuits that civil rights laws cannot 3 govern church employment relationships with ministers without 4 violating the free exercise clause because they substantially 5 burden religious freedom. See, e.g., McClure v. Salvation Army, 6 460 F.2d 553, 560 (5th Cir. 1972) (applying Title VII to church- 7 minister relationship "would result in an encroachment by the 8 State into an area of religious freedom into which it is 9 forbidden to enter" by the Free Exercise Clause). The court 10 dismissed the complaint under Rule 12(b)(6). 11 DISCUSSION 12 Appellant argues that the ministerial exception should not 13 insulate a church’s non-religious regulations that discriminate 14 against ministers on the basis of age. Appellees assert that 15 this action is barred by EEOC errors. Alternatively, they 16 continue to rely upon "the ministerial exception," the Free 17 Exercise clause, and the Establishment Clause, claiming that 18 applying the ADEA to the church-minister relationship would 19 substantially burden religion. In that regard, appellees note 20 that "for this very reason" Congress passed the RFRA. We address 21 the alleged EEOC errors before turning to the main issue: 22 whether the RFRA amended the ADEA. 23 a) Completion of Administrative Proceedings 24 Appellees argue that the district court lacked jurisdiction 5
    191. 1 because the EEOC issued appellant’s Notice of Right to Sue fewer 2 than sixty days after his charge was filed.2 We disagree. 3 Appellant satisfied all statutory requirements for bringing 4 this private action under the ADEA. He filed an age 5 discrimination charge with the EEOC on March 19, 2003; the EEOC 6 issued a Notice of Right to Sue on April 11, 2003. Under 29 7 U.S.C. § 626(d) and (e), appellant had to file the instant suit 8 more than sixty days after filing his EEOC complaint and within 9 ninety days of his receipt of the EEOC Notice. Hankins complied 10 with both requirements by filing suit on July 3, 2003 -- more 11 than 60 days after March 19, and 83 days after April 11. 12 Furthermore, contrary to appellees’ arguments, the instant suit 13 was not barred by appellant’s June 11, 2003 filing of a Complaint 14 with the New York Division of Human Rights because the Division 15 dismissed the complaint on July 1, 2003, before appellant filed 16 this suit. See 29 U.S.C. § 633(b) (ADEA prohibits bringing suit 17 before 60 days after commencement of state proceedings, "unless 18 such proceedings have been earlier terminated"). 19 Appellees rely for their jurisdictional contention on two 20 Title VII cases: Martini v. Fed. Nat’l Mortgage Ass’n, 178 F.3d 21 1336 (D.C. Cir. 1999), and Rodriguez v. Connection Tech. Inc., 65 22 F. Supp. 2d 107 (E.D.N.Y. 1999). These cases inferred from the 23 language of 42 U.S.C. § 2000e-5(f)(1)3 that the EEOC lacks 24 authority to issue right-to-sue notices based on Title VII claims 6
    192. 1 before 180 days after a charge is filed. E.g., Martini, 178 F.3d 2 at 1347 (“[T]he EEOC’s power to authorize private suits within 3 180 days undermines its express statutory duty to investigate 4 every charge filed, as well as Congress’s unambiguous policy of 5 encouraging informal resolution of charges up to the 180th 6 day.”). We have not decided whether the regulation allowing 7 early issuance of right-to-sue notices, 29 C.F.R. § 8 1601.28(a)(2), is a permissible construction of Section 2000e-5. 9 We express no opinion on the issue here, although we note that 10 two circuits and several district courts within this circuit have 11 disagreed with Martini and Rodriguez. Sims v. Trus Joist 12 MacMillan, 22 F.3d 1059, 1061-63 (11th Cir. 1994) (early issuance 13 of right-to-sue letter by EEOC does not bar a Title VII suit); 14 Saulsbury v. Wismer & Becker, Inc., 644 F.2d 1251, 1257 (9th Cir. 15 1980) (same); Commodari v. Long Island Univ., 89 F. Supp. 2d 353, 16 381-83 (E.D.N.Y. 2000) (same); Palumbo v. Lufthansa German 17 Airlines, 1999 U.S. Dist. LEXIS 11412, No. 98 Civ. 5005, 1999 WL 18 540446, at *2 (S.D.N.Y. July 26, 1999) (same); Figueira v. Black 19 Entm’t Television, Inc., 944 F. Supp. 299, 303-08 (S.D.N.Y. 1996) 20 (same). 21 The key fact in the present matter is that the language of 22 29 U.S.C. § 626, which authorizes suits under the ADEA, differs 23 significantly from that of Section 2000e-5(f)(1). Section 626 24 provides that “[n]o civil action may be commenced by an 7
    193. 1 individual under this section until 60 days after a charge 2 alleging unlawful discrimination has been filed with the [EEOC]." 3 Id. § 626(d). Appellant complied with this provision by waiting 4 sixty days after filing his EEOC charge before bringing the 5 instant suit. The fact that the EEOC terminated its proceedings 6 prior to the expiration of sixty days was irrelevant to the 7 district court’s authority to entertain the case. This is 8 especially so because Section 626, unlike Section 2000e-5, 9 explicitly contemplates early termination of EEOC investigations. 10 Id. § 626(e) (“If a charge filed with the [EEOC] under this 11 chapter is dismissed or the proceedings of the [EEOC] are 12 otherwise terminated by the [EEOC], the [EEOC] shall notify the 13 person aggrieved.”). This suit was therefore properly before the 14 district court. 15 b) The Religious Freedom Restoration Act 16 In our view, the dispositive issue in this matter concerns 17 the application of the RFRA. The statute's substantive 18 provisions state: 19 (a) In general. Government shall not substantially 20 burden a person's exercise of religion even if the 21 burden results from a rule of general applicability, 22 except as provided in subsection (b). 23 (b) Exception. Government may substantially burden a 24 person's exercise of religion only if it demonstrates 25 that application of the burden to the person-- 26 (1) is in furtherance of a compelling governmental 27 interest; and 28 (2) is the least restrictive means of furthering that 29 compelling governmental interest. 30 8
    194. 1 42 U.S.C. § 2000bb-1. 2 The test set out in Subsection (b)(1) and (2) “applies to 3 all Federal law, and the implementation of that law, whether 4 statutory or otherwise, and whether adopted before or after 5 November 16, 1993.” Id. § 2000bb-3(a). The RFRA's remedial 6 provision states that “[a] person whose religious exercise has 7 been burdened in violation of this section may assert that 8 violation as a claim or defense in a judicial proceeding and 9 obtain appropriate relief against a government.” Id. § 10 2000bb-1(c). "[G]overnment" is in turn defined to include any 11 "branch, department, agency, instrumentality, and official (or 12 other person acting under color of law) of the United States." 13 Id. § 2000bb-2(1). 14 The present action is a suit against a church and an 15 official of that church. The suit claims that the defendants 16 violated a federal statute, the ADEA, and seeks judicial 17 remedies; appellees claim that application of the statute would 18 substantially burden the exercise of their religion. If the 19 RFRA's test for evaluating burdens on religious activity -- 20 Subsections (b)(1) and (2) -- is not met, appellees can arguably 21 assert a violation of the RFRA as a complete defense. 22 The district court dismissed the case based on a 23 "ministerial exception" that some courts had read into various 24 anti-discrimination laws -- an unresolved issue in this circuit - 9
    195. 1 - including the ADEA. Whatever the merits of that exception as 2 statutory interpretation or policy, it has no basis in statutory 3 text, whereas the RFRA, if applicable, is explicit legislation 4 that could not be more on point. Given the absence of other 5 relevant statutory language, the RFRA must be deemed the full 6 expression of Congress’s intent with regard to the religion- 7 related issues before us and displace earlier judge-made 8 doctrines that might have been used to ameliorate the ADEA’s 9 impact on religious organizations and activities. City of 10 Milwaukee v. Illinois, 451 U.S. 304, 314 (1981) ("Federal common 11 law is a necessary expedient, and when Congress addresses a 12 question previously governed by a decision rested on federal 13 common law the need for such an unusual exercise of lawmaking by 14 federal courts disappears.") (internal quotation marks and 15 citations omitted). 16 There is little caselaw addressing the issue whether the 17 RFRA applies to an action by a private party seeking relief under 18 a federal statute against another private party who claims that 19 the federal statute substantially burdens his or her exercise of 20 religion.4 The RFRA's language surely seems broad enough to 21 encompass such a case. The statutory language states that it 22 "applies to all federal law, and the implementation of that law," 23 42 U.S.C. § 2000bb-3(a), and that a defendant arguing that such a 24 law substantially burdens the exercise of religion "may assert [a 10
    196. 1 violation of the RFRA] as a . . . defense in a judicial 2 proceeding." Id. § 2000bb-1(c). This language easily covers 3 the present action. The only conceivably narrowing language is 4 the phrase immediately following: "and obtain appropriate relief 5 against a government." Id. However, this language would seem 6 most reasonably read as broadening, rather than narrowing, the 7 rights of a party asserting the RFRA. The narrowing 8 interpretation -- permitting the assertion of the RFRA as a 9 defense only when relief is also sought against a governmental 10 party -- involves a convoluted drawing of a hardly inevitable 11 negative implication. If such a limitation was intended, 12 Congress chose a most awkward way of inserting it. The 13 legislative history is neither directly helpful nor harmful to 14 that view. 15 We need not, however, decide whether the RFRA applies to a 16 federal law enforceable only in private actions between private 17 parties. The ADEA is enforceable by the EEOC as well as private 18 plaintiffs, and the substance of the ADEA's prohibitions cannot 19 change depending on whether it is enforced by the EEOC or an 20 aggrieved private party. See United States v. Brown, 79 F.3d 21 1550, 1559 n.16 (11th Cir. 1996) ("The meaning of the statutory 22 words 'scheme to defraud' does not change depending on whether 23 the case is Civil RICO or criminal."). An action brought by an 24 agency such as the EEOC is clearly one in which the RFRA may be 11
    197. 1 asserted as a defense, and no policy of either the RFRA or the 2 ADEA should tempt a court to render a different decision on the 3 merits in a case such as the present one. Indeed, appellant 4 argues that the RFRA is inapplicable only because it is 5 unconstitutional. 6 1. Waiver 7 First, however, we must address whether appellees have 8 waived or forfeited reliance upon the RFRA. In their original 9 brief, as noted, appellees argued that the ADEA was an unlawful 10 burden on their religious activities and that Congress has 11 enacted the RFRA, a statute that applied to all federal laws, 12 "for this very reason." Appellant’s Brief at 28. Believing that 13 this reference to a seemingly dispositive but otherwise 14 unmentioned statute needed some elaboration and unconvinced that 15 appellant's claim that the Supreme Court had held the RFRA 16 unconstitutional in all circumstances was correct, we asked for 17 further briefing. 18 Somewhat to our surprise, appellees’ post-argument letter- 19 brief states that, although all pertinent portions of the RFRA 20 are constitutional, the statute is inapplicable because “the case 21 at bar is a matter relating to a private employment situation and 22 does not involve actions by the government.” Nevertheless, 23 appellees continue to rely upon the "ministerial exception" and 24 the Free Exercise and Establishment Clauses. 12
    198. 1 In our view, as discussed above, the RFRA’s provisions are 2 directly on point, and allow parties who, like appellees, claim 3 that a federal statute, like the ADEA, substantially burdens the 4 exercise of their religion to assert the RFRA as a defense to any 5 action asserting a claim based on the ADEA. The issue then is 6 whether their post-argument letter-brief constitutes a waiver or 7 forfeiture of that defense. 8 A party may certainly waive or forfeit a RFRA defense by 9 failing to argue that a law or action substantially burdens the 10 party’s religion. For example, in United States v. Amer, 11 appellant had forfeited the defense that his child kidnaping 12 conviction violated the RFRA, because “[a]t no point during the 13 pretrial, trial, or sentencing proceedings did [appellant] argue 14 that his act of removing and retaining the children was 15 religiously mandated or inspired.” 110 F.3d 873, 879 & n.1 (2d 16 Cir. 1997). Where a party fails to assert a substantial burden 17 on religious exercise before a district court, therefore, the 18 party may not raise that issue -- an inherently fact-based one -- 19 for the first time on appeal. 20 However, appellees argued in the district court and here -- 21 and continue to argue -- that application of the ADEA to the 22 relationship between their church and appellant substantially 23 burdens their religion. They continue to assert the "ministerial 24 exception," which in their view tracks the Free Exercise clause 13
    199. 1 of the Constitution and the Establishment Clause as well. 2 Appellees’ Brief at 4-15; see Elvig v. Calvin Presbyterian 3 Church, 397 F.3d 790, 790 (9th Cir. 2005) ("[T]he 'ministerial 4 exception' to Title VII is carved out from the statute based on 5 the commands of the Free Exercise and Establishment Clauses of 6 the First Amendment."). In substance, therefore, they ask us to 7 apply the RFRA, but not to mention it. 8 Appellees' position that the RFRA does not apply to suits 9 between private parties is not determinative of our analysis, 10 given that they have vigorously pursued and preserved the 11 substance of the issue. We are required to interpret federal 12 statutes as they are written -- in this case the ADEA as amended 13 by the RFRA -- and we are not bound by parties’ stipulations of 14 law. Becker v. Poling Transp. Corp., 356 F.3d 381, 390 (2d Cir. 15 2004); see also Kamen v. Kemper Fin. Servs. Inc., 500 U.S. 90, 99 16 ("When an issue or claim is properly before the court, the court 17 is not limited to the particular legal theories advanced by the 18 parties, but rather retains the independent power to identify and 19 apply the proper construction of governing law."). We are not in 20 the business of deciding cases according to hypothetical legal 21 schemes, particularly when the hypothetical scheme posed by a 22 party tracks the actual law in all but name. 23 2. Constitutionality 24 In addressing the constitutional issues raised by appellant 14
    200. 1 with regard to the RFRA, we first describe the statutory 2 background. 3 The RFRA was passed in response to Employment Div. v. Smith, 4 494 U.S. 872 (1990). The Supreme Court held there that "the 5 right of free exercise does not relieve an individual of the 6 obligation to comply with a valid and neutral law of general 7 applicability on the ground that the law proscribes (or 8 prescribes) conduct that his religion prescribes (or 9 proscribes)." Id. at 879 (internal quotation marks and citation 10 omitted). Smith limited the applicability of the "compelling 11 state interest" test the Court had previously applied to neutral 12 laws before allowing them to place a substantial burden on 13 religious practice. Id. at 883-84 (limiting test to mean that 14 "where the State has in place a system of individual exemptions, 15 it may not refuse to extend that system to cases of ‘religious 16 hardship' without compelling reason").5 17 Congress enacted the RFRA pursuant to two sources of 18 authority, Section 5 of the Fourteenth Amendment and the 19 Necessary and Proper Clause of the Constitution. See H.R. Rep. 20 No. 103-88, at 17 (1993) (“Finally, the Committee believes that 21 Congress has the constitutional authority to enact [the RFRA]. 22 Pursuant to Section 5 of the Fourteenth Amendment and the 23 Necessary and Proper Clause of the Constitution, the legislative 24 branch has been given the authority to provide statutory 15
    201. 1 protection for a constitutional value . . . .”). The Supreme 2 Court held that the RFRA could not be enacted under Section 5 of 3 the Fourteenth Amendment, which empowers Congress to enforce the 4 Amendment's other provisions against the states. City of Boerne 5 v. Flores, 521 U.S. 507, 519 (1997) (“Congress does not enforce a 6 constitutional right by changing what that right is.”). The RFRA 7 is therefore unconstitutional as applied to state law. 8 However, the RFRA applies by its terms not only to the 9 states but also to “all Federal law, and the implementation of 10 that law, whether statutory or otherwise, and whether adopted 11 before or after November 16, 1993.” 42 U.S.C. § 2000bb-3(a); see 12 also id. § 2000bb-2(1) (“‘[G]overnment’ includes a branch, 13 department, agency, instrumentality, and official (or other 14 person acting under color of law) of the United States.”). 15 Boerne could not have addressed whether the RFRA was validly 16 enacted under the Necessary and Proper Clause because the only 17 issue before the Court was the denial of a building permit to a 18 church by local zoning authorities. 521 U.S. at 512. Since 19 Boerne, “[e]very appellate court that has squarely addressed the 20 question has held that the RFRA governs the activities of federal 21 officers and agencies." O'Bryan v. Bureau of Prisons, 349 F.3d 22 399, 401 (7th Cir. 2003); Guam v. Guerrero, 290 F.3d 1210, 1221 23 (9th Cir. 2002); Henderson v. Kennedy, 265 F.3d 1072, 1073 (D.C. 24 Cir. 2001); Kikumura v. Hurley, 242 F.3d 950, 960 (10th Cir. 16
    202. 1 2001); Christians v. Crystal Evangelical Free Church (In re 2 Young), 141 F.3d 854, 856 (8th Cir. 1998); see also Madison v. 3 Riter, 355 F.3d 310, 315 (4th Cir. 2003). 4 We join the other circuits in holding that the RFRA is 5 constitutional as applied to federal law under the Necessary and 6 Proper Clause of the Constitution. As presented in this case, 7 the issue is simply whether Congress had the authority to amend 8 the ADEA to include the RFRA standard. See In re Young, 141 F.3d 9 at 861 (the RFRA “has effectively amended the Bankruptcy Code, 10 and has engrafted the additional clause to § 548(a)(2)(A) that a 11 recovery that places a substantial burden on a debtor's exercise 12 of religion will not be allowed unless it is the least 13 restrictive means to satisfy a compelling governmental 14 interest.”). 15 Congress enacted the ADEA pursuant to its Commerce Clause 16 powers under Article I. Kimel v. Fla. Bd. of Regents, 528 U.S. 17 62, 78 (2000) (“the ADEA constitutes a valid exercise of 18 Congress' power ‘[t]o regulate Commerce . . . among the several 19 States’”) (citing EEOC v. Wyoming, 460 U.S. 226, 243 (1983)) 20 (alterations in original); McGinty v. New York, 251 F.3d 84, 91 21 (2d Cir. 2001); see U.S. Const., Art. I, § 8, cl. 3 (“The 22 Congress shall have power . . . [t]o regulate commerce with 23 foreign Nations, and among the several States, and with the 24 Indian Tribes."). Furthermore, the Necessary and Proper Clause 17
    203. 1 authorizes Congress “[t]o make all Laws which shall be necessary 2 and Proper for carrying into Execution” its Article I powers, 3 including its Commerce Clause powers. U.S. Const. art. I, § 8, 4 cl. 18. The Clause allows all legitimate legislation “plainly 5 adapted” to a constitutional end. M’Culloch v. Maryland, 17 U.S. 6 (4 Wheat.) 316, 421 (1819) (“Let the end be legitimate, let it be 7 within the scope of the constitution, and all means which are 8 appropriate, which are plainly adapted to that end, which are not 9 prohibited, but consist with the letter and spirit of the 10 constitution, are constitutional.”). Finally, the "plainly 11 adapted" standard requires only “that the effectuating 12 legislation bear a rational relationship to a permissible 13 constitutional end.” United States v. Wang Kun Lue, 134 F.3d 79, 14 84 (2d Cir. 1998). 15 It is obvious to us that because Congress had the power to 16 enact the ADEA, it also had the power to amend that statute by 17 passing the RFRA. The RFRA was authorized by the Necessary and 18 Proper Clause because its purpose -- to protect First Amendment 19 rights as interpreted by the Congress, see S. Rep. No. 103-111, 20 at 14 (1993), reprinted in 1993 U.S.C.C.A.N. 1892, 1903 -- was 21 permissible. “When Congress acts within its sphere of power and 22 responsibilities, it has not just the right but the duty to make 23 its own informed judgment on the meaning and force of the 24 Constitution.” Boerne, 521 U.S. at 535. 18
    204. 1 The RFRA was also proper as applied to the ADEA in 2 particular because, as noted, Congress had authority to enact 3 that statute under the Commerce Clause. See INS v. Chadha, 462 4 U.S. 919, 941 (1983) ("’Congress has plenary authority in all 5 cases in which it has substantive legislative jurisdiction, so 6 long as the exercise of that authority does not offend some other 7 constitutional restriction.’”) (quoting Buckley v. Valeo, 424 8 U.S. 1, 132 (1976)) (internal citation omitted); Guerrero, 290 9 F.3d at 1220 (“Congress derives its ability to protect the free 10 exercise of religion from its plenary authority found in Article 11 I of the Constitution; it can carve out a religious exemption 12 from otherwise neutral, generally applicable laws based on its 13 power to enact the underlying statute in the first place.”); In 14 re Young, 141 F.3d at 861 (“[W]e can conceive of no argument to 15 support the contention[] that Congress is incapable of amending 16 the legislation that it has passed.”).6 17 In his post-argument letter-brief, appellant argues that 18 application of the RFRA to federal law violates separation of 19 powers principles and the Establishment Clause of the 20 Constitution.7 We address these issues in turn. 21 Appellant's separation of powers challenge is that because 22 the RFRA mandates evaluation of laws and actions that burden 23 religion by a standard different from that prescribed by the 24 Supreme Court, it is a Congressional usurpation of judicial 19
    205. 1 power. However, we agree with the Eighth Circuit that “[t]he key 2 to the separation of powers issue in this case is . . . not 3 whether Congress disagreed with the Supreme Court’s 4 constitutional analysis, but whether Congress acted beyond the 5 scope of its constitutional authority in applying RFRA to federal 6 law.” In re Young, 141 F.3d at 860; United States v. Marengo 7 County Comm'n, 731 F.2d 1546, 1562 (11th Cir. 1984) 8 (“[C]ongressional disapproval of a Supreme Court decision does 9 not impair the power of Congress to legislate a different result, 10 as long as Congress had that power in the first place.”). 11 Indeed, “Congress has often provided statutory protection of 12 individual liberties that exceed the Supreme Court’s 13 interpretation of constitutional protection.” In re Young, 141 14 F.3d at 860 (collecting examples); Guerrero, 290 F.3d at 1221 15 (“Certainly Congress can provide more individual liberties in the 16 federal realm than the Constitution requires without violating 17 vital separation of powers principles.”). That the RFRA provides 18 more protection from federal actors and statutes than may be 19 required by the First Amendment hardly undermines separation of 20 powers principles. 21 With respect to appellant's Establishment Clause argument, 22 the Clause provides that "Congress shall make no law respecting 23 an establishment of religion." U.S. Const. amend. I. The 24 Supreme Court has established a three-prong test to determine 20
    206. 1 whether a statute violates the Clause. 2 First, the statute must have a secular legislative 3 purpose; second, its principal or primary effect must 4 be one that neither advances nor inhibits religion; 5 finally, the statute must not foster an excessive 6 government entanglement with religion. 7 8 Lemon v. Kurtzman, 403 U.S. 602, 612-13 (1971) (quotations and 9 citations omitted). Applying this test, the Court has held that 10 exempting religious organizations from compliance with neutral 11 laws does not violate the Constitution. E.g., Corp. of the 12 Presiding Bishop of the Church of Jesus Christ of Later-Day 13 Saints v. Amos, 483 U.S. 327, 338-40 (1987) (exemption from 14 federal antidiscrimination laws for religious organizations does 15 not violate Establishment Clause); see also Gillette v. United 16 States, 401 U.S. 437, 460 (1971) (exemption from military draft 17 for religious conscientious objectors does not violate 18 Establishment Clause); Walz v. Tax Comm'n, 397 U.S. 664, 680 19 (1970) (state property tax exemption for religious organizations 20 does not violate Establishment Clause). 21 Given these holdings, appellant faces an unwinnable battle 22 in claiming that the RFRA -- a limited exemption for religious 23 organizations from compliance with neutral laws -- violates the 24 Establishment Clause. The RFRA had a secular legislative purpose 25 within the meaning of Lemon -- namely, to protect individual 26 First Amendment rights as interpreted by the Congress. As noted, 27 this purpose was not only permissible but was also required by 21
    207. 1 Congress’s duty to interpret the Constitution. Boerne, 521 U.S. 2 at 535. A “secular legislative purpose” need not be “unrelated 3 to religion”; rather, Lemon’s first prong aims to prevent 4 Congress “from abandoning neutrality and acting with the intent 5 of promoting a particular point of view in religious matters.” 6 Amos, 483 U.S. at 335; Gillette, 401 U.S. at 454 ("'Neutrality' 7 in matters of religion is not inconsistent with 'benevolence' by 8 way of exemptions from onerous duties, so long as an exemption is 9 tailored broadly enough that it reflects valid secular 10 purposes.") (citation omitted). The RFRA reflected no purpose to 11 promote a particular religious point of view. 12 The RFRA also satisfies the other two prongs of the Lemon 13 test. Its principal effect neither advances nor inhibits 14 religion within the meaning of Lemon. “For a law to have 15 forbidden ‘effects’ under Lemon, it must be fair to say that the 16 government itself has advanced religion through its own 17 activities and influence,” rather than simply by granting an 18 exemption to religious organizations. Amos, 483 U.S. at 337-38 19 (“Where . . . government acts with the proper purpose of lifting 20 a regulation that burdens the exercise of religion, we see no 21 reason to require that the exemption come packaged with benefits 22 to secular entities.”). Although the RFRA certainly provides 23 some benefit to religious organizations, “a law is not 24 unconstitutional simply because it allows churches to advance 22
    208. 1 religion, which is their very purpose.” Id. at 337. Finally, 2 there is no question that the RFRA decreases rather than fosters 3 government entanglement with religion, as required by the third 4 prong of Lemon. Amos, 483 U.S. at 339 (An exemption “effectuates 5 a more complete separation of [church and state] and avoids . . . 6 intrusive inquiry into religious belief.”). 7 We note in general that the Supreme Court approved of and 8 invited legislative enactments of religious exceptions to neutral 9 laws in Smith itself. 494 U.S. at 890. The court pointed to 10 state exceptions to drug laws for sacramental peyote use and 11 noted with approval that “a society that believes in the negative 12 protection accorded to religious belief can be expected to be 13 solicitous of that value in its legislation as well.” Id. 14 (“[T]o say that a nondiscriminatory religious-practice exemption 15 is permitted, or even that it is desirable, is not to say that it 16 is constitutionally required.”). We therefore hold that the 17 RFRA, as applicable to federal law, does not violate the 18 Establishment Clause of the Constitution. 19 Having found the portions of the RFRA applicable to the 20 federal government and federal law constitutional, we have little 21 difficulty finding those portions severable from the RFRA’s 22 unconstitutional sections. A court must sever the invalid parts 23 of a statute from the valid parts “unless it is evident that the 24 Legislature would not have enacted those provisions which are 23
    209. 1 within its power, independently of that which is not.” Chadha, 2 462 U.S. at 931-32 (internal quotation marks, citations, and 3 alterations omitted); Alaska Airlines, Inc. v. Brock, 480 U.S. 4 678, 684 (1987) (“A court should refrain from invalidating more 5 of the statute than is necessary.”) (alteration omitted). We 6 know of no evidence that Congress would not have applied the RFRA 7 to the federal government unless it could also be applied to 8 state and local governments. We therefore hold the portion of 9 the RFRA applicable to the federal government severable from its 10 unconstitutional portions. See Kikumura, 242 F.3d at 959-60 11 (finding federal portions of the RFRA severable); In re Young, 12 141 F.3d at 859 (same). 13 CONCLUSION 14 The RFRA is an amendment to the ADEA and, as such, is 15 constitutional. The parties have not briefed the issue of how it 16 impacts the merits of this case. The district court did not 17 apply the RFRA, relying instead on the “ministerial exception” to 18 the ADEA. We believe that, while the RFRA's application is a 19 matter of law, it would be appropriate to hear from the district 20 court first, rather than seek yet further briefing in this court. 21 We therefore vacate and remand for reconsideration under the 22 RFRA standards. 23 24 24
    210. FOOTNOTES 1. Appellant initially moved for a preliminary injunction requiring appellees to restore his active status, but he withdrew the motion after the NYAC and Lyght appointed another clergy member to fill his vacant position. 2. The district court did not address this issue, but because it raises purely legal questions, we do so here. See McGinty v. New York, 251 F.3d 84, 90 (2d Cir. 2001) (addressing question not decided by district court where facts were undisputed and legal question was briefed). 3. Section 2000e-5(f)(1) provides in pertinent part: If a charge filed with the Commission . . . is dismissed by the Commission, or if within one hundred and eighty days from the filing of such charge . . . the Commission has not filed a civil action . . . or the Commission has not entered into a conciliation agreement to which the person aggrieved is a party, the Commission . . . shall so notify the person aggrieved and within ninety days after the giving of such notice a civil action may be brought against the respondent named in the charge. . . . 4. No court appears to have addressed the issue squarely, but some suggestive caselaw exists. Some courts seem to have assumed 25
    211. without discussion that the RFRA may be asserted as a defense by a private party against another private party. See, e.g., Guinan v. Roman Catholic Archdiocese of Indianapolis, 42 F. Supp. 2d 849, 853 (S.D. Ind. 1998) (permitting the private party defendant to assert a RFRA defense but rejecting it after first finding that the ministerial exception negated the need to discuss the RFRA defense); Urantia Found. v. Maaherra, 895 F. Supp. 1335, 1336-37 (D. Ariz. 1995) (permitting the defendant to raise a RFRA defense but rejecting it because the defendant did not contest the constitutionality of the trademark and copyright laws in general or as applied to her). Bankruptcy courts have also generally permitted a private-party defendant to assert a RFRA defense against a Chapter 7 trustee. See Christians v. Crystal Evangelical Free Church (In re Young), 82 F.3d 1407, 1418-19 (8th Cir. 1996) (permitting a defendant to assert a RFRA defense and recover debtors’ tithes to the church because “the government action in question meaningfully curtails, albeit retroactively, a religious practice”), vacated, 521 U.S. 1114 (1997), reaff’d, 141 F.3d 854 (8th Cir. 1998); see also In re Tessier, 190 B.R. 396 (Bankr. D. Mont. 1995); Newman v. Midway Southern Baptist Church (In re Newman), 183 B.R. 239 (Bankr. D. Kan. 1995), aff’d, 203 B.R. 468 (D. Kan. 1996). A bankruptcy trustee is arguably "acting under color of law" and therefore falls within the RFRA's definition of "government." 42 U.S.C. § 2000bb-2(1). United 26
    212. States trustees are part of the executive branch and protect the interests of the United States in the liquidation. See 28 U.S.C. § 586(a); 11 U.S.C. §§ 701(a)(1), 703(b)-(c) and 704(9); In re Shoenewerk, 304 B.R. 59, 62-63 (Bankr. E.D.N.Y. 2003). 5. The RFRA’s stated purposes include "restor[ing] the compelling interest test as set forth in Sherbert v. Verner, 374 U.S. 398 (1963) and Wisconsin v. Yoder, 406 U.S. 205 (1972)." 42 U.S.C. § 2000bb(b)(1). The Supreme Court noted that "Congress enacted RFRA in direct response to the Court’s decision in" Smith. City of Boerne v. Flores, 521 U.S. 507, 512 (1997). 6. We find no principled constitutional distinction between Congress’s ability to amend statutes on an individual basis and its power to do so in a wholesale manner through an enactment such as the RFRA. See Guerrero, 290 F.3d at 1221 n.18. 7. Appellant also argues that Boerne explicitly invalidated all of the RFRA due to separation of powers concerns. Specifically, appellant relies upon the statement that the “RFRA contradicts vital principles necessary to maintain separation of powers and the federal balance.” Boerne, 521 U.S. at 536. The argument is entirely unconvincing. The quoted language simply explained why Congress could not enact the RFRA pursuant to its Section 5 27
    213. power. The quoted phrase reads in full as follows: “Broad as the power of Congress is under the Enforcement Clause of the Fourteenth Amendment, RFRA contradicts vital principles necessary to maintain separation of powers and the federal balance.” Id. This analysis has no application to any separation of powers concerns raised by the RFRA’s enactment and application to the federal government under the Necessary and Proper Clause. See Guerrero, 290 F.3d at 1220 (Boerne’s “discussion of the separation of powers doctrine was entirely within the framework of its section 5 analysis -- not an independent rationale.”). 28
    214. 04-5711(L)-cv, 04-5943-cv Walczyk v. Rio UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT August Term, 2005 (Argued: April 3, 2006 Decided: August 1, 2007) Docket Nos. 04-5711-cv(L), 04-5943-cv(XAP) T HOMAS W ALCZYK, E LIZABETH W ALCZYK, M AXIMINA W ALCZYK, EACH INDIVIDUALLY AND AS P.P.A. FOR M ICHELLE W ALCZYK, A MINOR CHILD,1 Plaintiffs-Appellees-Cross-Appellants, —v.— J AMES R IO, B RIAN K ILLIANY, J AMES J EPSEN, W ILLIAM T YLER, A NGELA D ESCHENES, AND S HAWN B ROWN, Defendants-Appellants-Cross-Appellees. Before: C ABRANES, S OTOMAYOR, and RAGGI, Circuit Judges. Interlocutory appeal from so much of an order of the United States District Court for the District of Connecticut as (1) denied defendants qualified immunity on plaintiffs’ federal 1 We direct the Clerk of Court to change the official caption to comport with this decision. 1
    215. and state constitutional challenges to the execution of arrest and search warrants. Cross- appeal from so much of the order as (2) denied plaintiff Elizabeth Walczyk summary judgment on the liability element of her illegal search claim and (3) granted defendants summary judgment on Thomas Walczyk’s claim of excessive bail. R EVERSED AND R EMANDED on part of defendants’ qualified immunity appeal. A FFIRMED in all other respects. Judge Sotomayor concurs in a separate opinion. T HOMAS R. G ERARDE (John J. Radshaw, III, on the brief), Howd & Ludorf, LLC, Hartford, Connecticut, for Defendants-Appellants-Cross- Appellees. J ON L. S CHOENHORN (Jennifer L. Bourn, on the brief), Jon L. Schoenhorn & Associates, Hartford, Connecticut, for Plaintiffs-Appellees-Cross- Appellants. R EENA R AGGI, Circuit Judge: In 2001, plaintiff Thomas Walczyk (“Walczyk”) was convicted after a jury trial in Connecticut on state law charges of disorderly conduct, see Conn. Gen. Stat. § 53a-182(a)(2); reckless endangerment, see id. § 53a-64(a); and improper firearm storage, see id. § 29-37i. On appeal, the Connecticut Appellate Court reversed, holding that Walczyk’s conviction violated federal and state law because it was based on incriminating evidence obtained through search warrants that were not supported by probable cause. See State v. Walczyk, 76 Conn. App. 169, 182, 818 A.2d 868, 876 (Conn. App. Ct. 2003). Thereafter, Walczyk, 2
    216. his wife Maximina, his minor child Michelle, and his mother Elizabeth initiated this civil action, suing defendants, all members of the Farmington, Connecticut Police Department, in the United States District Court for the District of Connecticut (Robert N. Chatigny, Chief Judge), pursuant to 42 U.S.C. §§ 1983 and 1988 and Connecticut law for money damages arising from events relating to Walczyk’s reversed conviction. Although the district court granted defendants’ motion for summary judgment with respect to some of plaintiffs’ claims, defendants now pursue an interlocutory appeal from so much of the district court’s order, entered on September 30, 2004, as denied them qualified immunity from plaintiffs’ unlawful arrest and search claims. See Walczyk v. Rio, 339 F. Supp. 2d 385, 389-91 (D. Conn. 2004). Not surprisingly, plaintiffs defend that denial. At the same time, Elizabeth Walczyk cross-appeals the district court’s denial of her motion for summary judgment on the liability element of her challenge to the search of her home. See id. at 391. Meanwhile, Thomas Walczyk cross-appeals the award of summary judgment to defendants on his Eighth Amendment claim that he was detained on excessive bail. See id. at 390. For the reasons discussed herein, we conclude that the arrest of Thomas Walczyk and the search of the home he shared with his wife and daughter were supported by probable cause. We reverse so much of the district court’s order as concluded otherwise, and we remand with directions to enter summary judgment in favor of defendants on that part of plaintiffs’ complaint. With respect to defendants’ search of Elizabeth Walczyk’s home, we 3
    217. affirm the district court’s denial of qualified immunity to defendants because the warrant authorizing that search was procured on the basis of plainly stale information and questions of fact remain as to whether any or all defendants acted knowingly or recklessly in misleading the issuing magistrate as to the currency of that information. Those same questions of fact prompt us to affirm the district court’s denial of summary judgment to Elizabeth Walczyk on the liability element of her unlawful search claim. Finally, with respect to Walczyk’s excessive bail claim, we affirm the award of summary judgment in favor of defendants on the ground of absolute immunity. I. Factual Background A. The Underlying Land Dispute 1. Barberino Realty Acquires the Land This case has its origins in a longstanding property dispute between the Walczyk family and Barberino Realty and Development Corporation (“Barberino”). The property — undeveloped land adjacent to the Farmington homes of Thomas Walczyk at 28 Tunxis Street and of his parents, Elizabeth and Lucien Walczyk,2 at 27 Tunxis Street — was acquired by Barberino in 1973. Over the next two decades, Barberino encountered various difficulties developing the land, only some of which are relevant to this appeal. 2. 1981: Walczyk Brandishes a Rifle at Barberino Workers Sometime in 1981, a Barberino work crew entered onto the undeveloped land to drill 2 Lucien Walczyk is not a party to this lawsuit, having died prior to its commencement. 4
    218. for soil samples preliminary to development. Thomas Walczyk, who was licensed to possess numerous firearms, brandished a rifle at the workmen and challenged their actions. The workmen sought police assistance, after which their work proceeded apparently without interruption and without any official action being taken against Walczyk. The incident nevertheless prompted Barberino’s counsel to seek assurances from Elizabeth and Lucien Walczyk that there would be no further attempts to hinder development of the land. In response, an attorney for the elder Walczyks advised that his clients were claiming title to the undeveloped land by adverse possession. The claim was based on the Walczyks’ long use of a portion of the undeveloped land for vegetable gardening and cattle grazing. 3. 1988: Walczyk Again Brandishes a Gun at a Barberino Worker Despite these 1981 events, the relationship between the Walczyks and Barberino appears to have remained uneventful until January 1988 when, in response to a Barberino demand that the Walczyks remove certain items from the property, the elder Walczyks reiterated their adverse possession claim. A few months later, in March 1988, a Barberino worker equipped with a bulldozer attempted forcibly to remove various items from the disputed property. Once again, Thomas Walczyk confronted the worker with a licensed firearm, specifically, an AR-15 automatic assault rifle loaded with thirty rounds of ammunition, and ordered him off the property. Police responded to the scene and directed Walczyk to drop his weapon. Walczyk initially 5
    219. ignored several such directives, “yell[ing] about trespassing and some statute.” Police Rpt., Mar. 24, 1988, at 2. When Walczyk finally put down the rifle, a “wrestling match[]” ensued as he tried to prevent the police from taking him into custody. Id. at 3. Charged with threatening, reckless endangerment, and interfering with police, Walczyk eventually pleaded guilty to the lesser infraction of creating a public disturbance. 4. The Walczyks’ Lawsuits Claiming Adverse Possession The following month, in April 1988, Elizabeth and Lucien Walczyk sued for adverse possession of the undeveloped property. The action settled in 1991 with Barberino paying the elder Walczyks $20,000 and granting them a perpetual agricultural easement over a portion of the disputed land. In return, Elizabeth and Lucien Walczyk signed a quitclaim of any right, title, or interest in the property and promised not to oppose Barberino’s development plans before the town planning and zoning commission. Four years later, in January 1995, Thomas Walczyk sued Barberino, as well as his parents, claiming that he held title to the disputed property through adverse possession. On March 14, 1997, the Connecticut Superior Court rejected Walczyk’s claim as a matter of law.3 In granting judgment to Barberino and quieting title in its favor, the Connecticut court 3 In addition to holding that Walczyk failed to adduce evidence sufficient to establish any of the elements of adverse possession, the court ruled that his claim was barred by the equitable doctrines of unclean hands and laches because he had “initiated and directed” his parents’ 1988 suit against Barberino and made the strategic choice to pursue that claim and its settlement only in their name. See Walczyk v. Barberino Realty, Inc., No. cv- 950465712S, 1997 Conn. Super. LEXIS 715, at *35 (Conn. Super. Ct. Mar. 14, 1997) (“The plaintiff, by his failure to disclose his own claim in a timely fashion, effectively misled the 6
    220. stated: “Thomas Joseph Walczyk has no estate, interest in or encumbrance of said real property or any part thereof.” Walczyk v. Barberino Realty & Dev. Corp., No. cv- 950465712S, 1997 Conn. Super. LEXIS 718, at *2 (Conn. Super. Ct. Mar. 14, 1997). This judgment was affirmed on direct appeal, see Walczyk v. Barberino Realty & Dev. Corp., 48 Conn. App. 911, 719 A.2d 1233 (Conn. App. Ct. 1998), and the Connecticut Supreme Court declined further review, see Walczyk v. Barberino Realty & Dev. Corp., 245 Conn. 904, 719 A.2d 1165 (1998). B. Events Relating to the Challenged Arrest and Searches 1. Walczyk’s April 1999 Threat to “Take Matters Into My Own Hands” Despite the state courts’ unequivocal rejection of his adverse possession claim, Walczyk persisted in asserting a superior interest in the disputed land. On April 9, 1999, he visited the Farmington Police Department to complain about Barberino’s development efforts, insisting to defendant Captain James Rio that he (Walczyk) “had a common law right to the land because he had been farming and maintaining it for some time.” Arrest Warrant Aff. at 2. When Rio explained that the police had received notice of the court order to the contrary, Walczyk stated that he expected to secure reversal of that judgment based on witness perjury and judicial misconduct. More significantly for purposes of the issues raised on this appeal, Walczyk told Rio that, “[i]f you guys don’t comply with what I’m telling you defendants [in the settlement of that claim] . . . and now seeks to take unfair advantage of a strategic decision he made, with the advice of counsel, to prosecute the first adverse possession claim in his parents’ names only.”). 7
    221. I’ll take matters into my own hands.” Id. Rio warned Walczyk not to do anything illegal, but Walczyk stated that he would “do what [he] had to do to protect his property.” Id. (alteration in original). 2. Walczyk’s August 1999 Reference to a Potential “Bloodbath” Some five months later, on August 30, 1999, Walczyk called the Farmington police to complain again that Barberino personnel were trespassing on the disputed property. Responding to the scene, Officer David Hebert explained to Walczyk that the police could not act on his trespass complaint without some documentary support for his property claim. In his report of the encounter, Hebert noted that W alczyk made “some off color com[m]ents that the police were not taking the action needed to avoid a ‘blood bath.’” Police Rpt., Aug. 30, 1999, at 1.4 At Walczyk’s subsequent criminal trial, Hebert explained that, although he considered this remark offensive, he did not immediately place Walczyk under arrest because the officer did not feel any direct threat to himself. Nevertheless, he did understand Walczyk’s comment as a threat toward “the Barberino Corporation and who[m]ever they were going to have down there working.” Trial Tr. vol. 1, 56, Mar. 23, 2001. Indeed, Hebert informed Barberino of the bloodbath statement, prompting its counsel to contact Captain Rio to request 4 Walczyk acknowledged the comment at his deposition in this case: “I said well here’s the law. It’s got a thousand years of history behind it and it’s clearly designed to prevent blood shed and disputes over property. Now if a blood bath ensues, are you going to be responsible, being the police, because they refused to uphold the law.” Walczyk Dep. at 77. 8
    222. police protection at the disputed property site during any work periods. 3. The Challenged Arrest and Search W arrants Soon thereafter, Rio reviewed Hebert’s report of his August 30, 1999 encounter with Walczyk. Rio was, of course, aware of Walczyk’s earlier statement that, if police did not assist him in his land dispute, he would take matters into his “own hands” and do what he “had to do” to protect his rights. Moreover, Rio knew that Walczyk was the licensed owner of a variety of firearms and that, over the years, he had responded to various situations by displaying, discharging, or threatening to discharge a firearm. In addition to the 1981 and 1988 incidents, detailed supra at [5-6], during which Walczyk had brandished firearms specifically at Barberino workers, these situations included a 1990 road-rage incident during which Walczyk, armed with a loaded AK-47 rifle, confronted an angry motorist who had followed him home;5 a 1992 complaint by neighbors that Walczyk shot a cat in his backyard;6 and a 1996 argument during which Walczyk threatened to shoot his brother John for using the undeveloped land for driving practice.7 5 Although Walczyk was initially charged with threatening, the state’s attorney ultimately declined prosecution. 6 Originally charged with unlawful discharge of a firearm, cruelty to animals, and conspiracy to commit cruelty to animals, Walczyk ultimately pleaded guilty to breach of the peace. 7 John Walczyk told police that he did not fear imminent physical injury during this argument in which no firearms were actually displayed; nevertheless, he felt nervous because he knew his brother owned guns and could act on his threat. No charges were filed in connection with this incident. 9
    223. Viewing the bloodbath comment in this larger context, Rio concluded that the events of August 30, 1999, demonstrated probable cause to arrest Walczyk for the Connecticut Class A misdemeanor of threatening, see Conn. Gen. Stat. § 53a-62(a),8 and to search Walczyk’s home and that of his parents for firearms that could be used as instrumentalities of the bloodbath threat. Rio did not speak with Officer Hebert before making this determination, but he did consult with a state’s attorney, who concurred in the captain’s probable cause assessment. Rio then communicated the relevant circumstances to defendant Sergeant William Tyler and directed him to prepare the paperwork necessary to procure an arrest warrant for Walczyk. After Tyler completed and signed the arrest warrant, he and Rio used the same information to prepare search warrant applications for the homes of Thomas Walczyk and his parents. These papers were then given to defendants Corporal Angela Deschenes and Officer Shawn Brown, who acted as affiants for the search warrant applications. On 8 At the time of the events in question, section 53a-62(a) stated: A person is guilty of threatening when: (1) By physical threat, he intentionally places or attempts to place another person in fear of imminent serious physical injury, or (2) he threatens to commit any crime of violence with the intent to terrorize another, to cause evacuation of a building, place of assembly, or facility of public transportation, or otherwise to cause serious public inconvenience, or (3) he threatens to commit such crime in reckless disregard of the risk of causing such terror or inconvenience. Conn. Gen. Stat. § 53a-62(a) (1999) (amended 2001 & 2002). All citations herein are to this version of the provision. 10
    224. September 4, 1999, a magistrate authorized the arrest and search warrants.9 4. Facts Supporting the Warrants Because plaintiffs claim, inter alia, that the warrant affidavits, on their face, fail to establish probable cause to support the challenged arrest and searches, we here reproduce the facts as detailed in the affidavits: On 08-30-99, Officer Hebert of the Farmington Police Department responded to [a] trespassing complaint made by Mr. Thomas Walczyk . . ., 27 Tunxis Street, Farmington, CT. Walczyk complained of trespassing by employees of the Barberino Realty & Development Corporation on property located on Tunxis Street. Walczyk has had a long standing dispute over that property and has made claims in the past that he has common law rights to the land. Walczyk told Officer Hebert that the Farmington Police were not taking the action needed to avoid a “bloodbath.” Officer Hebert reported Walczyk’s complaint to Mr. [Stephen] Barberino Jr., the owner of the land in question. As a result of Walczyk’s threat of a “bloodbath,” Atty Robert Reeve, representing Barberino, contacted Capt. James Rio of the Farmington Police Department. Reeve expressed concerns for the safety of employees during imminent construction work planned for the Tunxis Street property. He requested extra police presence during work periods. In the early spring of 1999, the Farmington Police Department received a letter from Barberino Jr.’s attorney along with a copy of a March 14, 1997 decision made by the State of Connecticut Superior Court regarding the issue of the land in question. The decision by Judge Christine E. Keller was in favor of Barberino Realty & Development Corp., and stated that “Thomas Joseph Walczyk has no estate, interest in or encumbrance of said real property or any part thereof.” During late winter of 1998 and early spring of 1999 Walczyk came to the 9 We use the term “magistrate” as a general term for a judicial officer in the State of Connecticut. 11
    225. Farmington Police Department to speak with Capt. Rio about the land dispute and the impending land development. He told Capt. Rio at that time that he had a common law right to the land because he had been farming and maintaining it for some time. Walczyk said that he was in the process of getting a Superior Court ruling to reverse the one made in Barberino’s favor. He claimed that Stephen Barberino Jr. had perjured himself and the presiding Judge had acted inappropriately. Capt. Rio explained that the Farmington Police had been advised of the ruling in favor of Barberino and that until we were officially notified otherwise, all parties and the police department would have to abide by the last court ruling. W alczyk responded that, “If you guys don’t comply with what I’m telling you I’ll take matters into my own hands.” Capt. Rio advised Walczyk against any illegal actions to which Walczyk responded that he would, “ . . . do what [he] had to do to protect his property.” The Farmington Police Department has investigated Walczyk on previous occasions for incidents involving threatening during which times he has either threatened the use of or displayed a gun. On 09-15-96 Officer Charette of the Farmington Police Department investigated a disturbance on Tunxis Street involving Walczyk and his brother. The argument was over property on Tunxis Street for which Thomas Walczyk was suing his parents. His brother claimed that Walczyk pushed him and threatened to shoot him. His brother felt no imminent threat but was concerned because he knew Walczyk owned numerous guns. Walczyk denied making the threat and no arrest was made. On 02-15-92 Walczyk was arrested in Farmington for cruelty to animals and unlawful discharge of a firearm. Neighbors reported seeing him shoot a cat on his property with a handgun. On 12-08-90 neighbors complained that Walczyk was shooting guns on property at the end of Tunxis Street. He was shooting but was not in violation. On 07-30-90 Walczyk was arrested by the Farmington Police for threatening. A motorist followed Walczyk home to complain about the way he was driving. Walczyk went inside and came back with a A-K assault rifle and an argument ensued. The assault rifle was taken as evidence. It was loaded with twenty rounds of ammunition. On 03-24-88 the Farmington Police Department responded to a disturbance at 12
    226. Tunxis Street. The disturbance was over the same land dispute between Walczyk and Barberino employees. Barberino employees were working on the land. Walczyk approached them carrying an AR 15 assault rifle ordering them to get off his property. One of the employee[]s complained that Walczyk had pointed the gun directly at him. Walczyk was arrested for threatening, reckless endangerment, and interfering with police. He denied actually pointing the gun at anyone. The gun was seized as evidence. It contained one .223 round in the chamber and twenty-nine rounds in the magazine. Walczyk fought with officers prior to being arrested. As of 09-03-99, Walczyk, according to Connecticut State Police records, has the following handguns registered in his name. 1. Colt model 1903, 32 caliber, ser. #: 354507. 2. Colt Govt. Model, 45 caliber, ser. #: 40562G70. 3. Smith & Wesson model 629, 44 caliber, ser. #: N872450. 4. Walthers Woodsman model, .22 caliber, ser. #: 142639. He also has the following assault weapons registered in his name. 1. Non-classified, 86S, ser. #: A000316. 2. Ruger (SR), Mini-14, ser. #: 18465824. 3. Colt, AR15-A2 H-BAR, ser. #: 325465. 4. Non-classified, MAK-90, ser. #: 9362979. That a review of Farmington Police records indicate[s] that Walczyk has maintained residences at both 27 and 28 Tunxis St., Farmington, CT. That town of Farmington property records show that 27 Tunxis Street is owned by Lucian Walzak [sic], and 28 Tunxis Street is owned by Thomas Walzak [sic]. Search Warrant Aff. and App. at 2-3.10 5. Execution of the Warrants The challenged warrants were executed on September 7, 1999. On that date, defendant Sergeant James Jepsen contacted Thomas Walczyk and, on the pretense of wishing to discuss the land dispute, proposed a meeting at the police station. Upon Walczyk’s arrival, 10 The arrest warrant affidavit contained identical facts, but did not include the last paragraph describing the Tunxis Street residences. 13
    227. Sergeant Tyler placed him under arrest and detained him in a cell block on $10,000 bail.11 Walczyk remained in custody until later that day, when his mother posted bail. While Walczyk was in custody, a team of officers, including Sergeant Jepsen and defendant Detective Brian Killiany executed the challenged search warrants, seizing nearly 60 licensed firearms from Thomas Walczyk’s home and 18 licensed firearms from his parents’ home, as well as approximately 2,600 rounds of ammunition, gun clips, ammunition belts, and other items related to firearms’ use. C. Connecticut’s Invalidation of the Challenged W arrants After a Connecticut jury found Walczyk guilt of disorderly conduct, see Conn. Gen. Stat. § 53a-182(a)(2); reckless endangerment, see id. § 53a-64(a); and two counts of improper firearm storage, see id. § 29-37i, 12 he was sentenced to pay a fine of $100 for each count of conviction. The Appellate Court of Connecticut reversed Walczyk’s conviction, holding that the search warrant that resulted in seizure of the charged guns was not supported by probable cause. See State v. W alczyk, 76 Conn. App. at 180-82, 818 A.2d at 875-76.13 In reaching 11 Under Connecticut law, police officers are empowered to set temporary bail. See Conn. Gen. Stat. § 54-63c(a) (discussed infra at [43-45]). 12 Walczyk was acquitted on four other counts of improper firearm storage; risking injury to a child, see Conn. Gen. Stat. § 53-21; and threatening, the charge that had initially prompted his arrest and the search of his and his parents’ homes. 13 Although plaintiffs note that this decision was authored by former Connecticut Supreme Court Chief Justice Ellen A. Peters, they do not argue that this ruling is dispositive in this case. See Norton v. Sam’s Club, 145 F.3d 114, 117 (2d Cir. 1998) (noting that 14
    228. this conclusion, the court faulted the warrant’s supporting affidavit for failing “to reconcile a construction of the ‘bloodbath’ statement as a threat . . . with the statement . . . of what the defendant actually had said.” Id. at 180, 818 A.2d at 875. Specifically, the court held that “[a] statement to a police officer that the police needed to act to avoid a ‘bloodbath’ cannot be the basis of probable cause to believe that the defendant, at that time or in the immediate future, would engage in threatening behavior.” Id. at 181-82, 818 A.2d at 876 (emphasis in argument not raised on appeal is deemed waived). Nor is it likely that such an argument would be convincing in light of numerous decisions declining to hold individual state officials bound, in their individual capacities, by determinations adverse to the state in prior criminal cases. See Jenkins v. City of New York, 478 F.3d 76, 85-86 (2d Cir. 2007) (holding that ruling in New York state criminal proceeding that defendant’s arrest was not supported by probable cause did not collaterally estop police from relitigating question when defendant sued them under § 1983); Bilida v. McCleod, 211 F.3d 166, 170-71 (1st Cir. 2000) (holding that collateral estoppel did not bar Rhode Island officers sued under § 1983 from asserting legality of searches found unconstitutional in earlier criminal proceedings: “[T]he interests and incentives of the individual police [officers] . . . are not identical to those of the state, and the officers normally have little control over the conduct of a criminal proceeding”); McCoy v. Hernandez, 203 F.3d 371, 374-75 (5th Cir. 2000) (same re: suit against Texas officers); Kinslow v. Ratzlaff, 158 F.3d 1104, 1105-06 (10th Cir. 1998) (same re: Oklahoma officers); Kraushaar v. Flanigan, 45 F.3d 1040, 1050-51 (7th Cir. 1995) (reaching same result regarding an Illinois officer); Duncan v. Clements, 744 F.2d 48, 51-52 (8th Cir. 1984) (same under Missouri law); Davis v. Eide, 439 F.2d 1077, 1078 (9th Cir. 1971) (same with respect to California officers). While we need not conclusively decide the issue, there is no reason to think Connecticut law would support a different conclusion regarding estoppel in this case. See, e.g., State v. Fritz, 204 Conn. 156, 173, 527 A.2d 1157, 1166 (1987) (observing that privity necessary to trigger collateral estoppel is not established “from the mere fact that persons may happen to be interested in the same question or in proving or disproving the same facts. While the concept of privity is difficult to define precisely, it has been held that a key consideration for its existence is the sharing of the same legal right by the parties allegedly in privity.” (internal quotation marks and citation omitted)), overruled on other grounds by State v. Crawford, 257 Conn. 769, 779-80, 778 A.2d 947, 954 (2001); accord Tevolini v. Tevolini, 66 Conn. App. 16, 22 n.6, 783 A.2d 1157, 1163 n.6 (Conn. App. Ct. 2001). 15
    229. original). The Connecticut court also noted that the affidavit failed to establish probable cause because it did not state that any of Walczyk’s earlier misconduct had resulted in his “conviction of threatening or of any other crime,” distinguish “between recent incidents and those that ha[d] become stale,” or state that his firearm possession was in any way unlawful. Id. at 180, 818 A.2d at 875 (emphasis in original). Nor did the court think that Walczyk’s prior statement to Captain Rio — that “he would take matters into his own hands and do what he had to do to protect his property” — established probable cause because Rio advised Walczyk “not to do so,” and, on August 30, 1999, Walczyk “followed instructions to report any possible trespass to the police.” Id. at 181, 818 A.2d at 876 (emphasis in original). D. The District Court Action On August 30, 2002, plaintiffs commenced this action, charging defendants with (1) violating their federal and state constitutional rights to have arrests and searches supported by probable cause, (2) depriving them of their federal rights to equal protection of the laws and to free expression, (3) violating their federal and state constitutional rights to bear arms, and (4) holding Walczyk on excessive bail. Defendants moved for summary judgment, which the district court granted with respect to all claims except those challenging Thomas Walczyk’s arrest, the searches of his and his parents’ homes, and Walczyk’s First Amendment claim, which apparently had been previously abandoned. We need not here discuss the district court rulings with respect to the plaintiffs’ equal protection or right to bear arms claims because neither is challenged on this appeal. As for 16
    230. Walczyk’s excessive bail claim, the district court ruled “as a matter of law” that “when a police officer sets temporary bail under Conn. Gen. Stat. § 54-63c, he performs a judicial function and hence has absolute immunity from suit.” Walczyk v. Rio, 339 F. Supp. 2d at 390. With respect to plaintiffs’ unlawful arrest and search challenges, the district court concluded that, although the supporting warrants were “facially valid,” defendants were not entitled to summary judgment on the ground of qualified immunity because questions of fact existed as to whether they had “knowingly and deliberately, or with reckless disregard of the truth, made material misstatements or omissions in the warrant affidavit[s] that were necessary to the finding of probable cause.” Id. at 389; see Franks v. Delaware, 438 U.S. 154, 155-56 (1978). The court identified three such material omissions: the affidavits’ failure to disclose that (1) the defendants “had not spoken with Officer Hebert about his conversation” with Walczyk, (2) none of Walczyk’s previous arrests “had resulted in a conviction for threatening,” and (3) Walczyk “had not lived at 27 Tunxis Street for seven years.” Walczyk v. Rio, 339 F. Supp. 2d at 389. The court concluded that “[a] reasonable juror could find that the omission of the first two items of information was critical to the finding of probable cause for the arrest, and that the omission of all three items was critical to the finding of probable cause for the searches of the houses and the seizures of the firearms.” Id. Thus, it ruled that defendants were not entitled to summary judgment on the basis of qualified immunity under either federal or state law (assuming arguendo that 17
    231. Connecticut would afford immunity to state constitutional claims14) because, when the record was viewed in the light most favorable to the plaintiffs, “a jury could find that the defendants lacked even arguable probable cause to believe that [Walczyk] had committed the crime of threatening or that the firearms to be seized were connected with criminal activity.” Id. at 390 (noting that ruling was consistent with Connecticut Appellate Court’s determination that affidavits “fell well short of establishing probable cause”).15 Nevertheless, the district court 14 We need not decide on this appeal whether Connecticut affords qualified immunity in cases of unlawful searches or seizures. See Rustici v. Malloy, No. cv-970164460S, 2004 Conn. Super. LEXIS 1734, at *46 n.26 (Conn. Super. Ct. July 1, 2004) (assuming that “qualified immunity appl[ies] to state constitutional claims”). Our holding that probable cause supports the arrest of Walczyk and the search of his home, see infra at [31-38], obviates the need for an immunity shield — state or federal — on those claims. See, e.g., Weyant v. Okst, 101 F.3d 845, 852 (2d Cir. 1996) (“The existence of probable cause to arrest constitutes justification and is a complete defense to an action for false arrest, whether that action is brought under state law or under § 1983.” (internal quotation marks and citation omitted)); Beinhorn v. Saraceno, 23 Conn. App. 487, 492, 582 A.2d 208, 210-11 (Conn. App. Ct. 1990) (stating that claim for false arrest under Connecticut law requires proof that arresting officer lacked probable cause). As to Elizabeth Walczyk’s unlawful search claim, because we identify factual issues, see infra at [41-43], that could moot defendants’ qualified immunity claim, we conclude that the availability of state law immunity need not be addressed unless and until these issues are resolved favorably to the defendants. 15 To the extent Captain Rio claimed that the evidence was insufficient to ascribe supervisory responsibility to him for any warrant deficiencies, the district court concluded that sufficient evidence had been adduced to support a jury finding that Rio was actually “involved in preparing the warrant affidavit.” Walczyk v. Rio, 339 F. Supp. 2d at 390. Because we agree with this conclusion, see Hayut v. State Univ. of New York, 352 F.3d 733, 753 (2d Cir. 2003) (noting that supervisory liability is supported by “evidence of a supervisory official’s personal involvement in the challenged conduct” (internal quotation marks omitted)), it is unnecessary for us to distinguish between Rio and the other defendants in discussing the probable cause question that is the crux of plaintiffs’ unlawful search and arrest challenges. 18
    232. denied Elizabeth Walczyk’s cross-motion for summary judgment on the liability phase of her search warrant challenge, concluding that she had not shown that no reasonable juror could find defendants’ acts lawful. II. Discussion A. Jurisdiction and the Standard of Review Because the denial of a motion for summary judgment is not a final judgment, it is generally not immediately appealable. See, e.g., Jones v. Parmley, 465 F.3d 46, 54 (2d Cir. 2006). An exception obtains, however, when the denied motion was based on a claim of immunity, at least to the extent the immunity claim presents a “purely legal question.” Mitchell v. Forsyth, 472 U.S. 511, 530 (1985) (recognizing jurisdiction to review “purely legal question on which . . . claim of immunity turns”); see O’Bert ex rel. Estate of O’Bert v. Vargo, 331 F.3d 29, 38 (2d Cir. 2003) (observing that “[u]nder the collateral order doctrine . . . the denial of a qualified-immunity-based motion for summary judgment is immediately appealable to the extent that the district court has denied the motion as a matter of law, although not to the extent that the defense turns solely on the resolution of questions of fact”); accord Jones v. Parmley, 465 F.3d at 54. The rationale for this exception is the law’s recognition that immunity shields a defendant from suit itself, not merely from liability. See Saucier v. Katz, 533 U.S. 194, 199 (2001) (“The privilege is ‘an immunity from suit rather than a mere defense to liability; . . . it is effectively lost if a case is erroneously permitted to go to trial.’” (quoting Mitchell v. Forsyth, 472 U.S. at 526 (emphasis in original))). In this 19
    233. case, defendants’ appeal from the district court’s denial of qualified immunity on plaintiffs’ search and arrest claims can be decided as a matter of law; accordingly, our jurisdiction is established. Although an interlocutory appeal would not be available from either the denial of Elizabeth Walczyk’s motion for summary judgment on her unlawful search claim or the district court’s dismissal of Walczyk’s excessive bail claim on the ground of absolute immunity, we elect to exercise pendent jurisdiction over both. “[W]e may exercise pendent jurisdiction over . . . issues that are not ordinarily subject to interlocutory review only when: (1) they are ‘inextricably intertwined’ with the determination of qualified immunity; or (2) their resolution is ‘necessary to ensure meaningful review’ of the district court’s ruling on qualified immunity.” Jones v. Parmley, 465 F.3d at 64 (quoting Swint v. Chambers County Comm’n, 514 U.S. 35, 51 (1995)). As we explain further below, see infra at [42-43], Elizabeth Walczyk’s claim is “inextricably intertwined” with the determination of defendants’ entitlement to qualified immunity in that the same disputed factual issues that preclude a finding of qualified immunity on this claim at this stage also make summary judgment inappropriate. As to Walczyk’s excessive bail claim, if we were to determine that the district court improperly granted defendants absolute immunity, they might nonetheless be entitled to qualified immunity, and thus review of this determination is also inextricably intertwined with our resolution of defendants’ entitlement to qualified immunity. Cf. Clynch 20
    234. v. Chapman, 285 F. Supp. 2d 213, 219 n.6 (D. Conn. 2003) (characterizing absolute immunity in excessive bail claim as a “cousin issue” to qualified immunity). We review de novo defendants’ legal challenge to the district court’s qualified immunity ruling, see Jones v. Parmley, 465 F.3d at 55, as well as Elizabeth and Thomas Walczyks’ cross-appeals from other summary judgment rulings, see, e.g., Root v. Liston, 444 F.3d 127, 130 (2d Cir. 2006). B. Plaintiffs’ Search and Arrest Claims 1. The Qualified Immunity Standard When a defendant officer charged with violations of federal constitutional rights invokes qualified immunity to support a motion for summary judgment, a court must first consider a threshold question: Do the facts, viewed in the light most favorable to the plaintiff, show that the officer’s conduct violated a constitutional right? If the answer to this question is no, “there is no necessity for further inquiries concerning qualified immunity.” Saucier v. Katz, 533 U.S. at 201; see X-Men Sec., Inc. v. Pataki, 196 F.3d 56, 66 (2d Cir. 1999) (observing that resolution of this first question favorable to defendant “moots” further inquiry into qualified immunity). The reason for this rule is that, where there is no viable constitutional claim, defendants have no need of an immunity shield. See generally Farrell v. Burke, 449 F.3d 470, 499 n.14 (2d Cir. 2006) (“Because we have found no cognizable violation of [p]laintiff’s rights in this case, we need not reach the question of qualified immunity.”); Holcomb v. Lykens, 337 F.3d 217, 223-25 (2d Cir. 2003) (declining to decide 21
    235. qualified immunity question and affirming summary judgment on ground that, as a matter of law, defendants did not violate plaintiff’s due process rights). Only if the answer to the first question is yes must a court proceed to the inquiry for qualified immunity: Was the right at issue clearly established at the time of the defendant’s actions? As the Supreme Court has explained, this question is not answered by reference to how courts or lawyers might have understood the state of the law: “The relevant, dispositive inquiry in determining whether a right is clearly established is whether it would be clear to a reasonable officer that his conduct was unlawful in the situation he confronted.” Saucier v. Katz, 533 U.S. at 202 (emphasis added). If the right at issue was not clearly established by then existing precedent, then qualified immunity shields the defendant. Even if the right at issue was clearly established in certain respects, however, an officer is still entitled to qualified immunity if “officers of reasonable competence could disagree” on the legality of the action at issue in its particular factual context. Malley v. Briggs, 475 U.S. 335, 341 (1986); accord Iqbal v. Hasty, – F.3d –, 2007 WL 1717803, at * 20 (2d Cir. June 14, 2007). Cerrone v. Brown, 246 F.3d 194, 202 (2d Cir. 2001); Lennon v. Miller, 66 F.3d 416, 420 (2d Cir. 1995); see Saucier v. Katz, 533 U.S. at 208 (holding officer entitled to qualified immunity if “[a] reasonable officer in [his] position could have believed that [the challenged conduct] was within the bounds of appropriate police responses”). In this respect, the Supreme Court has observed that qualified immunity protects “all but the plainly incompetent or those who knowingly violate the law.” Malley v. Briggs, 475 U.S. at 341 (quoted 22
    236. approvingly in Saucier v. Katz, 533 U.S. at 202). 16 16 Our concurring colleague takes exception to these standards at the same time that she acknowledges their reiteration of well established precedent. Her concern that a bifurcation of the “clearly established” inquiry might allow a defendant to secure qualified immunity for conduct already held unconstitutional “in the particularized sense,” post at [SS Concurrence at 6-7] is, in fact, unwarranted. If controlling authority has already established the unlawfulness of the challenged conduct in the particularized circumstances presented in the pending case, then no reasonable officer could think otherwise and, thus, qualified immunity would not shield the defendant. See, e.g., Groh v. Ramirez, 540 U.S. 551, 564 (2004). Judge Sotomayor’s further criticism — that determining clearly established law by reference to disagreements among reasonably competent officers, as indicated in Malley v. Briggs, 475 U.S. at 341, is “more permissive of defendants” than a single reasonable officer standard, post at [SS Concurrence at 8]— might merit attention if Malley contemplated “officers of reasonable competence” disagreeing based on unreasonable views of existing law. In fact, neither Malley nor today’s decision supports that conclusion. Instead, what Malley does is provide courts with a useful tool for assessing when pre-existing law that did not recognize the invoked right in the particularized context at issue, nevertheless, “must” have alerted the defendant to the unlawfulness of his action. See Anderson v. Creighton, 483 U.S. 635, 640 (1987) (holding that, where particular action at issue has not previously been held unlawful, defendant is not entitled to qualified immunity if, “in the light of pre-existing law the unlawfulness must [have] be[en] apparent”). By instructing courts to focus on whether “officers of reasonable competence could disagree” about the illegality of the challenged conduct, Malley sounds a useful reminder: because law enforcement work relies on probabilities and reasonable suspicions in an almost infinite variety of circumstances, many requiring prompt action, there can frequently be a range of responses to given situations that competent officers may reasonably think are lawful. W ithin this range, an officer enjoys qualified immunity for “reasonable mistakes.” Saucier v. Katz, 533 U.S. at 205, 206. To the extent Judge Sotomayor’s objection to Malley’s formulation relies on recent Supreme Court habeas jurisprudence, we note that the considerations informing limitations on habeas review are sufficiently distinct from those prompting recognition of qualified immunity to preclude easy analogy. See, e.g., Harlow v. Fitzgerald, 457 U.S. 800, 807 (1982) (recognizing qualified immunity because of “need to protect officials who are required to exercise their discretion and the related public interest in encouraging the vigorous exercise of official authority”). Nothing in the Supreme Court’s qualified immunity jurisprudence signals a narrowing of these considerations or an abandonment of Malley’s analysis. To the contrary, as we note in text, Saucier v. Katz cites approvingly to Malley’s 23
    237. 2. The Legality of the Challenged Arrest and Searches Applying these principles to this case, we consider first whether defendants’ actions violated plaintiffs’ rights under both the United States and Connecticut Constitutions to be free from unreasonable searches and arrests. See U.S. Const. amend. IV;17 Conn. Const. art. First, §§ 7, 9.18 Ordinarily, an arrest or search pursuant to a warrant issued by a neutral magistrate is presumed reasonable because such warrants may issue only upon a showing of probable cause. See Franks v. Delaware, 438 U.S. at 171; United States v. Awadallah, 349 F.3d 42, 64 (2d Cir. 2003); Golino v. City of New Haven, 950 F.2d 864, 870 (2d Cir. 1991); observation that qualified immunity is intended to shield “‘all but the plainly incompetent or those who knowingly violate the law.’” 533 U.S. at 202 (quoting Malley v. Briggs, 475 U.S. at 341). Finally, insofar as Judge Sotomayor expresses some concern about courts contemplating persons reaching different reasonable conclusions about the same facts, we note simply that courts do so routinely in upholding jury verdicts as long as “any rational trier of fact” could have reached the challenged result. United States v. MacPherson, 424 F.3d 183, 187 (2d Cir. 2005) (and cases cited therein). Accordingly, we hold that courts may continue to rely on Malley in resolving qualified immunity disputes. 17 “The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.” U.S. Const. amend. IV. 18 “The people shall be secure in their persons, houses, papers and possessions from unreasonable searches or seizures; and no warrant to search any place, or to seize any person or things, shall issue without describing them as nearly as may be, nor without probable cause supported by oath or affirmation.” Conn. Const. art. First, § 7. “No person shall be arrested, detained or punished, except in cases clearly warranted by law.” Id. art. First, § 9. 24
    238. see also United States v. Leon, 468 U.S. 897, 913-14 (1984). Plaintiffs nevertheless insist that the presumption is defeated in this case because (1) the warrant affidavits, on their face, fail to demonstrate probable cause, see generally United States v. Leon, 468 U.S. at 923; and (2) the issuing magistrate was, in any event, misled into finding probable cause by material omissions for which defendants were knowingly or recklessly responsible, see Franks v. Delaware, 438 U.S. at 155-56; Golino v. City of New Haven, 950 F.2d at 870-71. a. The Probable Cause Standard Before discussing these two contentions, we observe that federal and Connecticut law are identical in holding that probable cause to arrest exists when police officers have “knowledge or reasonably trustworthy information of facts and circumstances that are sufficient to warrant a person of reasonable caution in the belief that the person to be arrested has committed or is committing a crime.” Weyant v. Okst, 101 F.3d 845, 852 (2d Cir. 1996); see State v. James, 261 Conn. 395, 415, 802 A.2d 820, 833 (2002) (“Probable cause exists when the facts and circumstances within the knowledge of the officer and of which he has reasonable trustworthy information are sufficient in themselves to warrant a man of reasonable caution to believe that a [crime] has been committed.” (internal quotation marks omitted)). Similarly, under both federal and state law, probable cause to search is demonstrated where the totality of circumstances indicates a “fair probability that contraband or evidence of a crime will be found in a particular place.” Illinois v. Gates, 462 U.S. 213, 238 (1983); accord United States v. Gaskin, 364 F.3d 438, 456 (2d Cir. 2004); State v. 25
    239. Vincent, 229 Conn. 164, 171, 640 A.2d 94, 98 (1994) (noting that valid search requires “probable cause to believe that the particular items to be seized are connected with criminal activity or will assist in a particular apprehension or conviction” and “that the items sought to be seized will be found in the place to be searched”); State v. Orellana, 89 Conn. App. 71, 80, 872 A.2d 506, 516 (Conn. App. Ct. 2005) (citing Illinois v. Gates, 462 U.S. at 231-32)). Accordingly, we need not separately discuss federal and state law in assessing probable cause for the challenged arrest and searches. As the Supreme Court has famously observed, probable cause is “a fluid concept . . . not readily, or even usefully, reduced to a neat set of legal rules.” Illinois v. Gates, 462 U.S. at 232; see United States v. Gaskin, 364 F.3d at 456. While probable cause requires more than a “mere suspicion,” of wrongdoing, Mallory v. United States, 354 U.S. 449, 455 (1957), its focus is on “probabilities,” not “hard certainties,” Illinois v. Gates, 462 U.S. at 231. In assessing probabilities, a judicial officer must look to “‘the factual and practical considerations of everyday life on which reasonable and prudent men, not legal technicians, act.’” Id. (quoting Brinegar v. United States, 338 U.S. 160, 175 (1949)); accord United States v. Gaskin, 364 F.3d at 456. “Finely tuned standards such as proof beyond a reasonable doubt or by a preponderance of the evidence, useful in formal trials, have no place” in a probable cause determination. Illinois v. Gates, 462 U.S. at 235. Nor can probable cause be analogized to a prima facie case. See id. (observing that “‘only the probability, and not a prima facie showing, of criminal activity’” is necessary to establish probable cause to search 26
    240. or arrest (quoting Spinelli v. United States, 393 U.S. 410, 419 (1969))). In sum, probable cause does not demand any showing that a good-faith belief be “correct or more likely true than false.” Texas v. Brown, 460 U.S. 730, 742 (1983). It requires only such facts as make wrongdoing or the discovery of evidence thereof probable. It has long been recognized that, where there is no dispute as to what facts were relied on to demonstrate probable cause, the existence of probable cause is a question of law for the court. See Stewart v. Sonneborn, 98 U.S. 187, 194 (1878) (observing that whether facts alleged to show probable cause are true is a matter of fact, “but whether, supposing them to be true, they amount to a probable cause, is a question of law” (internal quotation marks omitted)); accord Director Gen. of R.R.’s v. Kastenbaum, 263 U.S. 25, 28 (1923) (observing that where facts are in dispute, court submits the question of probable cause to the jury, but “with instructions as to what facts will amount to probable cause if proved”); Sanders v. Palmer, 55 F. 217, 220 (2d Cir. 1893) (holding that question whether facts, “supposing them to be true, . . . amount to a probable cause, is a question of law”; when the facts are disputed, “it is the duty of the court to instruct the jury what facts, if established, will constitute a probable cause . . . and to submit to them only the question as to the existence of those facts”); see also United States v. Awadallah, 349 F.3d at 65 (distinguishing between de novo review of legal question whether undisputed facts support probable cause and deferential review of factual question whether, in case of misstated or omitted material facts, affiant’s actions were deliberate or reckless). In this case, there can be no dispute as to what facts the 27
    241. defendants relied on to establish probable cause for the challenged arrest and searches; they are memorialized in warrant affidavits. Thus, whether the affidavits, on their face, demonstrate probable cause, is a question of law. In answering that question, however, a reviewing court must accord considerable deference to the probable cause determination of the issuing magistrate, see Illinois v. Gates, 462 U.S. at 238-39 (holding that duty of reviewing court “is simply to ensure that the magistrate had a substantial basis” for probable cause determination (internal quotation marks omitted)); accord Velardi v. Walsh, 40 F.3d 569, 574 n.1 (2d Cir. 1994), mindful of the well established principle that a showing of probable cause cannot be negated simply by demonstrating that an inference of innocence might also have been drawn from the facts alleged, see United States v. Webb, 623 F.2d 758, 761 (2d Cir. 1980); see also United States v. Forero-Rincon, 626 F.2d 218, 222 (2d Cir. 1980). To the extent plaintiffs argue, in addition to their facial challenge, that material omissions infected the issuing magistrate’s probable cause determination, there is no dispute between the parties as to what purported omissions are appropriately considered. They are the three non-disclosures identified by the district court, i.e., that (1) defendants had not spoken with Officer Hebert about his understanding of Walczyk’s bloodbath statement; (2) none of Walczyk’s prior arrests had resulted in a conviction for threatening, and (3) Walczyk had not lived at his parents’ home for seven years. See Walczyk v. Rio, 339 F. Supp. 2d at 389. The materiality of these omissions presents a mixed question of law and fact. See 28
    242. Velardi v. Walsh, 40 F.3d at 574. Whether omitted information is “relevant to the probable cause determination” is a question of law that we review de novo. Id. If we identify relevancy, then questions of fact may arise as to what “weight . . . a neutral magistrate would likely have given such information,” id., and whether defendants acted “deliberately or recklessly” in omitting the information from the warrant affidavits, United States v. Awadallah, 349 F.3d at 65 (internal quotation marks omitted). Even in such circumstances, however, a court may grant summary judgment based on qualified immunity where “the evidence, viewed in the light most favorable to the plaintiffs, discloses no genuine dispute that a magistrate would have issued the warrant on the basis of the ‘corrected affidavits.’” Velardi v. Walsh, 40 F.3d at 574 (emphasis in original). Mindful of these principles, we proceed to consider plaintiffs’ warrant challenges, focusing first on the arrest of Thomas Walczyk and the search of his 28 Tunxis Street residence and then on the search of Elizabeth Walczyk’s 27 Tunxis Street home. b. Thomas Walczyk (1) The Facial Challenge We reject as without merit Thomas Walczyk’s contention that the challenged warrant affidavits, on their face, fail to state probable cause for his arrest or the search of his 28 Tunxis Street home. The facts alleged establish probable cause to believe (1) that W alczyk had violated Connecticut law by “threaten[ing] to commit . . . [a] crime [of violence] in reckless disregard of the risk of causing . . . terror” to another person, Conn. Gen. Stat. § 53a- 29
    243. 62(a)(3), and (2) that Walczyk maintained in his residence firearms that, in light of past use, were relevant evidence that he intended to threaten violence and recklessly disregarded the threat’s terrorizing effect. The facts reveal that, on August 30, 1999, Walczyk complained to Officer Hebert that the police were not taking the action necessary to avoid a bloodbath. A reasonable person would understand the bloodbath reference as a prediction of probable violence between Walczyk and Barberino. More to the point, a reasonable person would understand from other facts alleged in the affidavits that Walczyk would likely be the person initiating any such violence. A few months earlier, Walczyk had stated to Captain Rio that, if the police did not assist him in his property dispute with Barberino, he would take matters into his “own hands,” doing whatever he “had to do” to protect his property rights. Rio knew that what Walczyk frequently put into his hands to resolve disputes were loaded firearms that he stored in his home. In the past, Walczyk had brandished firearms retrieved from his home at various individuals, including Barberino workers on two occasions. On one of those occasions, the brandished weapon was a loaded automatic rifle and,19 when police intervened, Walczyk initially defied their orders to put down the weapon and resisted arrest. Moreover, the affidavits demonstrated that Walczyk plainly knew how to fire his weapons; 19 Although the warrant affidavits note that Walczyk denied pointing the rifle at Barberino workers, the magistrate judge had probable cause to conclude otherwise given that one of the workers specifically “complained that Walczyk had pointed the gun directly at him.” Arrest Aff. at 3; Search Warrant Aff. and App. at 3. 30
    244. he had used them to kill a cat on his property. Rio further knew that Walczyk’s efforts to vindicate his property rights peaceably through the courts had failed. Under the totality of these circumstances, the issuing magistrate certainly had a substantial basis to conclude that, when Walczyk told police that their continued failure to assist him in his property dispute with Barberino would result in a bloodbath, he was effectively threatening to employ violence against Barberino employees with reckless disregard for the terror such a threat would cause when communicated to the intended victim. We are, of course, mindful that a Connecticut appellate court has ruled otherwise. Observing that Walczyk’s bloodbath statement was made to secure police assistance, that court concluded: “A statement to a police officer that the police needed to act to avoid a ‘bloodbath’ cannot be the basis of probable cause to believe that the defendant, at the time or in the immediate future, would engage in threatening behavior.” State v. W alczyk, 76 Conn. App. at 181-82, 818 A.2d at 876 (emphasis in original). We respectfully disagree. Walczyk may have desired police assistance in his land dispute, but how he sought to compel that assistance was by threatening violence. Walczyk was, after all, the only person to have used an instrument of violence in connection with the land dispute. Given his prior brandishing of loaded firearms, it was certainly probable that Walczyk’s bloodbath statement was a threat to use violence against Barberino workers if the police did not intervene in his favor (something they could not do in light of state court rulings). Whether Walczyk would, in fact, have acted on his threat is not determinative of whether it was probable that he had 31
    245. made the threat with reckless disregard of the terror it would cause Barberino.20 We conclude that the affidavits, on their face, state facts reasonably supporting such a finding by the issuing magistrate. Walczyk submits that the search warrant affidavit nevertheless failed to demonstrate that there was any connection between his present lawful possession of firearms and the alleged crime of threatening. We are persuaded that the warrant affidavit states probable cause to believe that a search of Walczyk’s home for firearms would produce evidence relevant to demonstrating that Walczyk had committed the offense of threatening. At the time the search warrant affidavit was prepared, Walczyk’s apparent possession of firearms constituted relevant evidence which could suggest that his intent in making the bloodbath remark was, in fact, to threaten violence. See State v. Crudup, 81 Conn. App. 248, 260 n.14, 838 A.2d 1053, 1062 n.14 (Conn. App. Ct. 2004) (discussing intent element of threatening). Specifically, a seizure of firearms from Walczyk’s home could have shown that, at the time Walczyk made the bloodbath remark, he had the actual capacity to cause bloodshed. Moreover, such a seizure following the authorized search could have served to corroborate witness accounts that Walczyk had used weapons against Barberino workers and others in the past, which in turn could have helped establish his reckless disregard of the bloodbath 20 Walczyk does not fault the police for communicating his bloodbath statement to Barberino, much less suggest that he did not intend or foresee such communication. Indeed, given the totality of circumstances, it may well have been irresponsible of the police not to have communicated the statement. 32
    246. remark’s terrorizing effect. In sum, Walczyk’s possession of firearms was evidence relevant to the mens rea element of the crime because a factfinder could reasonably infer from such possession and from Walczyk’s past use of firearms that his bloodbath statement was not idle hyperbole, but an intentional threat of violence made with reckless disregard of its potential to cause terror. As the search warrant affidavit makes clear, the police were aware that Walczyk had previously used his home to store the firearms he brandished in confrontations with others, including Barberino workers, and thus they had probable cause to believe that evidence relevant to his alleged threatening would turn up in a search of his home. Accordingly, we hold that plaintiffs’ facial challenge to the warrant affidavits in this case necessarily fails as a matter of law.21 (2) Purported Omissions Walczyk asserts that two of the three identified material omissions misled the issuing magistrate into erroneously finding probable cause to support his arrest and the search of his home. 21 We also reject as without merit plaintiffs’ argument that the search warrant, which simply sought “Firearms,” was insufficiently particular and that the seizure of ammunition, gun clips, ammunition belts, and other items not named in the warrant violated the Fourth Amendment. Although requests to search for “evidence of a crime” violate the proscription against general warrants, see Groh v. Ramirez, 540 U.S. 551, 557-58 (2004), defendants’ application to search for “Firearms” was sufficiently particular because any firearms in Walczyk’s possession were relevant evidence that his bloodbath remark was an intentional threat of violence. Because we reach the same relevancy conclusion with respect to the ammunition, gun clips, and related firearms paraphernalia found in Walczyk’s home, we conclude that these items were properly seized under the “plain view” doctrine. United States v. $557,933.89, 287 F.3d 66, 81 (2d Cir. 2002). 33
    247. (a) Failure to Speak With Officer Hebert First, the district court pointed to defendants’ failure to disclose that no officer had spoken directly with Officer Hebert, who would have revealed that he did not himself feel threatened by Walczyk’s bloodbath statement. The conclusion is unconvincing both as a matter of law and fact. Preliminarily, we observe that the law permitting one law enforcement officer to rely on the report of another in applying for a warrant nowhere requires direct consultation to ensure that the officer reviewing the report ascribes no more weight to the described facts than the reporter intended. See generally Panetta v. Crowley, 460 F.3d 388, 395 (2d Cir. 2006); Martinez v. Simonetti, 202 F.3d 625, 634 (2d Cir. 2000); Velardi v. Walsh, 40 F.3d at 574. Indeed, we have specifically ruled that “a police officer is not required to explore and eliminate every theoretically plausible claim of innocence before making an arrest.” Martinez v. Simonetti, 202 F.3d at 635 (internal quotation marks omitted). Thus, we reject the suggestion that a law enforcement officer is guilty of a material omission when, in applying for a warrant, he fails to disclose that he has not spoken directly with a fellow officer on whose report he relies to establish probable cause. Even if we were to assume, however, that the applicant officer’s failure to ascertain that the reporting officer did not consider words he heard to be threatening was relevant to a determination of probable cause, that is not this case. Officer Hebert did understand Walczyk’s bloodbath statement as a threat. At Walczyk’s criminal trial, Hebert testified that 34
    248. he did not understand Walczyk to be threatening him, but he most certainly did understand Walczyk to be threatening any Barberino employees who came onto the disputed property. As we have already noted, this understanding finds ample support in the totality of facts recounted in the warrant affidavits. In sum, because Hebert’s subjective view of Walczyk’s statement, if it had been solicited by defendants and reported to the issuing magistrate, would actually have reinforced rather than undermined probable cause, we conclude that a “corrected” warrant affidavit would raise no genuine dispute as to the magistrate’s issuance of warrants for the arrest of Walczyk or the search of his home. (b) The Lack of a Prior Conviction for Threatening A second purported omission is the defendants’ failure to disclose that none of Walczyk’s prior conduct had resulted in a conviction for threatening. This omission is hardly relevant. Certainly, nothing in the challenged affidavits wrongly insinuates that Walczyk had such a conviction. Absent such conduct, we expect that when a magistrate, mindful of the government’s burden to demonstrate probable cause, reviews a warrant application that does not report a prior conviction for a particular crime, the magistrate assumes for purposes of determining whether the government has carried its burden that no such conviction exists. See generally Minnesota v. Dickerson, 508 U.S. 366, 376 (1993) (noting that probable cause requirement ensures against government action based on speculation). Moreover, as this court observed in Brown v. D’Amico, the law does not demand that an officer applying for a warrant “volunteer every fact that arguably cuts against the existence of probable cause,” 35
    249. as long as he does “not omit circumstances that are critical” to its evaluation, 35 F.3d 97, 99 (2d Cir. 1994). It was the particulars of Walczyk’s past conduct in using or threatening to use firearms to resolve disputes that was critical to the determination of the probability that his bloodbath statement constituted a threat of violence. This probability is in no way undermined by the lack of a prior conviction for threatening. Because we identify no merit in Thomas Walczyk’s facial challenge to the warrant affidavits authorizing his arrest and the search of his home, and because we determine as a matter of law that no alleged omissions were material to the issuance of these warrants, we conclude that he (as well as his wife and daughter) fails to demonstrate a viable unlawful search or arrest claim under federal or state law. Accordingly, we reverse the district court order denying defendants’ summary judgment with respect to these plaintiffs’ unlawful search and arrest claims, and we remand with directions to enter such a judgment. c. Elizabeth Walczyk (1) The Lack of Probable Cause According to defendants, the theory for searching Elizabeth Walczyk’s residence was that it probably contained firearms accessible to her son, constituting some further evidence that his bloodbath statement was a threat of violence. To the extent Elizabeth Walczyk joins in her son’s facial challenge to the warrant affidavits and to his charged material omissions regarding Officer Hebert and Walczyk’s criminal record, we have already explained why we reject these arguments. The district court, however, identified another omission that raises 36
    250. greater concern with respect to the search of Elizabeth Walczyk’s home. The warrant affidavit reported that Thomas Walczyk was licensed to possess various firearms and that he maintained two neighboring residences where such firearms would likely be found: “[A] review of Farmington Police records indicate[s] that Walczyk has maintained residences at both 27 and 28 Tunxis St., Farmington, CT.” Search Warrant Aff. and App. at 3. The implication was that Walczyk had maintained the residences recently. What the affidavit omitted, however, was the apparently undisputed fact that Walczyk had not resided at his mother’s 27 Tunxis Street residence for more than seven years. There can be no question that the omitted information was relevant to any assessment of probable cause. In evaluating probable cause, a magistrate is always required to consider whether the facts adduced in the warrant application “appear[] to be current, i.e., true at the time of the application,” or whether they have “become stale.” Rivera v. United States, 928 F.2d 592, 602 (2d Cir. 1991). The law sensibly draws no bright-line rule for staleness. Rather, a magistrate is expected to consider the age of the facts in light of the conduct at issue with a view toward ensuring that probable cause exists at the time the warrant is to be executed, not simply at some past time. See id.; see also United States v. Martino, 664 F.2d 860, 867 (2d Cir. 1981) (observing that, in circumstances of continuing or ongoing conduct, as contrasted with isolated illegal acts, “the passage of time between the last described act and the presentation of the application becomes less significant”). Thus, where information is seven years old, a magistrate must be alerted to that fact to make a reasonable probable 37
    251. cause determination. As we have already observed, the question of what weight a magistrate would have given omitted relevant evidence is generally a question for the finder of fact. See Velardi v. Walsh, 40 F.3d at 574. In this case, however, we can conclude as a matter of law that non- disclosure of the staleness of the dual residency allegation was fatal to a demonstration of probable cause. Not only was the allegation seriously outdated, it was the sole support for a search of Elizabeth W alczyk’s home. A comparison best makes this point. With respect to 28 Tunxis Street, the issuing magistrate could have inferred that Walczyk maintained guns at that address because he was licensed to possess such weapons and, on at least one occasion, he was actually seen retrieving a loaded assault rifle from that premises to brandish at a person with whom he had a dispute. Further, neighbors had reported seeing him fire a handgun on that property. By contrast, no facts were alleged indicating that Walczyk had ever stored or retrieved firearms from his parents’ home, much less that he had done so in the seven years since last residing there. Defendants urged that inference simply from Walczyk’s license to possess firearms and his purported residence at 27 as well as 28 Tunxis Street. Whatever questions might be raised about the strength of such an inference in any circumstance, it could not be drawn from a dual residency allegation that was seven years old. Defendants submit that the search of Walczyk’s 28 Tunxis Street residence “would have been meaningless” if he were “free to cross the street to his parents[’] home, where he 38
    252. formerly lived for many years, and have free access to other weaponry.” Appellant’s Br. at 30. This argument overlooks the fact that the warrant affidavit fails to allege any facts — apart from Walczyk’s dual residency — suggesting that anyone ever stored guns at 27 Tunxis Street. The affidavit makes no mention of the fact that Lucien or Elizabeth Walczyk was licensed to possess guns. As we have recently reiterated, probable cause to search must be based on particularized information about the place to be searched, not simply on a target’s “‘mere propinquity to others independently suspected of criminal activity.’” United States v. Martin, 426 F.3d 86, 88 (2d Cir. 2005) (quoting Ybarra v. Illinois, 444 U.S. 85, 91 (1979)). Once the dual residency allegation is “corrected,” we can conclude as a matter of law that the affidavit is devoid of any particularized information establishing probable cause to search Elizabeth Walczyk’s home. (2) Defendants’ Claim of Qualified Immunity; Elizabeth Walczyk’s Motion for Summary Judgment on the Issue of Liability Despite our ruling that the search of Elizabeth Walczyk’s home was not supported by probable cause, defendants might still be entitled to claim qualified immunity from liability for damages if the search was supported by “arguable probable cause.” Escalera v. Lunn, 361 F.3d 737, 743 (2d Cir. 2004) (holding that, even in the absence of probable cause, officer “will still be entitled to qualified immunity from a suit for damages if he can establish that there was ‘arguable probable cause’”). “Arguable probable cause exists ‘if either (a) it was objectively reasonable for the officer to believe that probable cause existed, or (b) officers 39
    253. of reasonable competence could disagree on whether the probable cause test was met.’” Id. (quoting Golino v. City of New Haven, 950 F.2d at 870); see also Caldarola v. Calabrese, 298 F.3d 156, 162 (2d Cir. 2002). Like the district court, we conclude that questions of disputed fact preclude a judicial resolution of this issue in favor of either side. While no competent officer who knew that Thomas Walczyk had not resided in his parents’ home for more than seven years could reasonably think that the stale allegation of dual residency established probable cause to search that premises for firearms, it cannot be determined from the present record which officers, if any, possessed — or even should have possessed — such knowledge. Further record development and factfinding are necessary to determine, among other things, (1) which of the defendants, if any, actually reviewed the police records that purportedly established W alczyk’s residence at both 27 and 28 Tunxis Street; (2) whether these records would have alerted a reasonable officer to the staleness of the dual residency allegation; (3) which defendants, if any, possessed independent knowledge that the dual residency statement was not accurate; (4) the circumstances under which the dual residency allegation was communicated along the chain of defendants; and (5) whether any defendant’s reliance on such communication without further inquiry was reasonable in light of the totality of the circumstances.22 Because a resolution of some of these matters in 22 As the Supreme Court has explained: [P]olice officers called upon to aid other officers in executing . . . warrants are entitled to assume that the officers requesting aid offered the magistrate the information requisite to support an independent judicial assessment of 40
    254. favor of Elizabeth Walczyk could preclude one or more defendants from claiming that they acted with arguable probable cause in searching her home, the district court correctly concluded that defendants did not yet establish their entitlement to qualified immunity. On the other hand, because a resolution favorable to one or more defendants could afford them the benefit of a qualified immunity shield, the district court also correctly denied summary judgment on liability to Elizabeth W alczyk. Accordingly, we affirm both these rulings. C. Walczyk’s Excessive Bail Claim Connecticut law allows state police to set temporary bail in certain cases. See Conn. Gen. Stat. § 54-63c(a). 23 The district court dismissed Walczyk’s excessive bail claim as a matter of law, holding that “when a police officer sets temporary bail” pursuant to this statute, “he performs a judicial function and hence has absolute immunity from suit.” probable cause. Where, however, the contrary turns out to be true, an otherwise illegal arrest [or search] cannot be insulated from challenge by the decision of the instigating officer to rely on fellow officers to make the arrest [or search]. Whiteley v. Warden, 401 U.S. 560, 568 (1971); see also Varrone v. Bilotti, 123 F.3d 75, 81 (2d Cir. 1997) (concluding that subordinate officers carrying out search directive of superior were entitled to qualified immunity although none had determined basis for order or reliability of information on which it was based). 23 The statute, in pertinent part, requires a police officer “promptly [to] order release of the arrested person upon the execution of a written promise to appear or the posting of such bond as may be set by the police officer, except that no condition of release set by the court or a judge thereof may be modified by such officer.” Conn. Gen. Stat. § 54-63c(a) (emphasis added). An officer may set bail only after conducting an interview with the individual concerning the terms and conditions of release, at which interview counsel may be present. See id. 41
    255. Walczyk v. Rio, 339 F. Supp. 2d at 390. Other district courts in Connecticut have similarly ruled. See Sanchez v. Doyle, 254 F. Supp. 2d 266, 269-73 (D. Conn. 2003); accord Machuca v. Canning, No. 3:00-cv-1722, 2006 WL 2828160, at *6 (D. Conn. Sept. 29, 2006); Minney v. Kradas, No. 3:01-cv-1543, 2004 U.S. Dist. LEXIS 5520, at *9-11 (D. Conn. Mar. 31, 2004); Bacciocchi v. Chapman, No. 3:02-cv-1403, 2004 U.S. Dist. LEXIS 1077, at *18-20 (D. Conn. Jan. 26, 2004); Clynch v. Chapman, 285 F. Supp. 2d at 219-23. Citing Sanchez and Clynch by analogy, this court recently concluded that absolute judicial immunity shielded a prosecutor who ordered a defendant’s bond increased pursuant to Conn. Gen. Stat. § 54- 63d because the prosecutor was performing a judicial function. See Root v. Liston, 444 F.3d at 132 (observing that courts apply “functional approach to immunity questions”). Following Root, we now hold what the citations to Sanchez and Clynch implied: police officers setting bail under Conn. Gen. Stat. § 54-63c(a) are engaged in a judicial function that affords them absolute immunity. “It is . . . well established that officials acting in a judicial capacity are entitled to absolute immunity against § 1983 actions, and this immunity acts as a complete shield to claims for money damages.” Montero v. Travis, 171 F.3d 757, 760 (2d Cir. 1999) (extending absolute immunity to parole board officials performing a quasi-judicial function in making parole decisions); see also Butz v. Economou, 438 U.S. 478, 511 (1978) (granting absolute immunity to administrative hearing examiners performing adjudicatory functions within federal agencies). As the Supreme Court has explained, it is “the nature of the function 42
    256. performed, not the identity of the actor who performed it, that inform[s] our immunity analysis.” Forrester v. White, 484 U.S. 219, 229 (1988) (holding that judges do not enjoy absolute immunity when performing administrative, legislative, or executive functions). Following this “functional approach to immunity questions,” this court in Root v. Liston observed that “[o]rdinarily, it is judges who set bail, and judges enjoy absolute immunity when they do so.” 444 F.3d at 132 (internal citations omitted). In short, because the setting of bail is a judicial function, see Cleavinger v. Saxner, 474 U.S. 193, 205 (1985), absolute immunity extends to police officers when they perform that function pursuant to statute. Accordingly, we affirm the district court’s dismissal of Walczyk’s excessive bail claim. III. Conclusion To summarize: 1. The unlawful search and arrest challenges of Thomas, Maximina, and Michelle Walczyk are without merit as a matter of law because the warrants for Walczyk’s arrest and for the search of these plaintiffs’ home were supported by probable cause. Defendants are entitled to have summary judgment entered in their favor on these claims. 2. The warrant authorizing the search of Elizabeth Walczyk’s home was plainly not supported by probable cause; nevertheless, the district court correctly denied summary judgment to both Elizabeth Walczyk and defendants because disputed questions of fact must be resolved before it can be determined whether defendants’ actions are shielded by qualified 43
    257. immunity or whether plaintiff is entitled to have a liability judgment entered in her favor. 3. Summary judgment was correctly entered in favor of defendants on Thomas Walczyk’s claim of excessive bail because police officers, when setting bail pursuant to Conn. Gen. Stat. § 54-63c(a), perform a judicial function, which affords them absolute immunity from suit for money damages. That part of the district court order denying defendants’ summary judgment motion with respect to the unlawful search and arrest claims of plaintiffs Thomas, Maximina, and Michelle Walczyk is hereby R EVERSED and the case is R EMANDED for entry of such a judgment. In all other respects the appealed summary judgment rulings of the district court are A FFIRMED. 44
    258. Sotomayor, J., concurring: I agree fully with the outcome of this case, and I concur with most of the majority’s reasoning; however, I disagree with its description of the qualified immunity standard we should apply and its related discussion of “arguable probable cause.” A long line of decisions of this Court features the same doctrinal misstatements, and it is time we stopped repeating uncritically this particular language and gave it the attention it deserves.1 I join all of the majority opinion except Part II(B)(1),2 and I write separately to call the Court’s attention to our collective failure to harmonize our qualified immunity analysis with the Supreme Court’s directives. The portion of the majority’s qualified immunity discussion that I find objectionable reads as follows: “If the right at issue was not clearly established by then existing precedent, then qualified immunity shields the defendant. Even if the right at issue was clearly established in certain respects, however, an officer is still entitled to qualified immunity if ‘officers of reasonable competence could disagree’ on the legality of the action at issue in its particular factual context.” Maj. Op. at [23] (quoting Malley v. Briggs, 475 U.S. 335, 341 (1986)). These two sentences and the citation to Malley reveal the two flaws I see in this circuit’s approach to qualified immunity. First, our approach splits the single question of whether a right is “clearly established” into two distinct steps, 1 1 To the extent the majority holds that courts may continue to rely on this language 2 from Malley, Maj. Op. at [25 n.16], I note that such a holding is unnecessary and serves no 3 purpose in this case except to complicate the law further. 2 1 Although I also disagree with the majority’s use of the term “arguable probable 2 cause” and its reliance on whether “officers of reasonable competence could disagree,” M aj. 3 Op. at [41], I join Part II(B)(2)(c)(2) of the majority opinion because I agree with its 4 conclusion that questions of disputed fact preclude judicial resolution of whether the officers 5 are entitled to qualified immunity for their search of Elizabeth Walczyk’s house. 45
    259. contrary to Supreme Court precedent. Second, we demand a consensus among all hypothetical reasonable officers that the challenged conduct was unconstitutional, rather than positing an objective standard of reasonableness to which defendant officers should be held, as the Supreme Court has repeatedly instructed us to do. I address both of these points in turn. The Supreme Court has made clear that “[t]he relevant, dispositive inquiry in determining whether a right is clearly established is whether it would be clear to a reasonable officer that his [or her] conduct was unlawful in the situation he [or she] confronted.” Saucier v. Katz, 533 U.S. 194, 202 (2001). That is, whether a right is clearly established is the same question as whether a reasonable officer would have known that the conduct in question was unlawful. This Court’s case law, in contrast, bifurcates the “clearly established” inquiry into two steps. See, e.g., Cerrone v. Brown, 246 F.3d 194, 199 (2d Cir. 2001) (“A police officer is entitled to qualified immunity from liability for his [or her] discretionary actions if either (1) his [or her] conduct does not violate clearly established statutory or constitutional rights of which a reasonable person would have known, or (2) it was objectively reasonable for him [or her] to believe that his [or her] actions were lawful at the time of the challenged act.” (emphasis added; internal quotation marks and citation omitted)). By splitting the “relevant, dispositive inquiry” in two, we erect an additional hurdle to civil rights claims against public officials that has no basis in Supreme Court precedent. Whether a reasonable officer would know his or her conduct to be unlawful requires an inquiry into the state of the law at the time of the conduct and “in light of the specific context of the case.” Saucier, 533 U.S. at 201. If the right at issue has not previously been articulated, or had been addressed only in a factual context that is “distinguishable in a fair way,” id. at 202, a reasonable 46
    260. officer might not have known that the challenged conduct was unlawful.3 See also id. (“‘[T]he right the official is alleged to have violated must have been “clearly established” in a more particularized, and hence more relevant, sense: The contours of the right must be sufficiently clear that a reasonable official would understand that what he [or she] is doing violates that right.’” (quoting Anderson v. Creighton, 483 U.S. 635, 640 (1987)). Contrary to what our case law might suggest, the Supreme Court does not follow this “clearly established” inquiry with a second, ad hoc inquiry into the reasonableness of the officer’s conduct. Once we determine whether the right at issue was clearly established for the particular context that the officer faced, the qualified immunity inquiry is complete. Wilson v. Layne, 526 U.S. 603 (1999), illustrates the inquiry that the Supreme Court contemplates for qualified immunity. The Wilsons brought suit against law enforcement officers who permitted members of the media to accompany them in an early morning raid of the Wilsons’ home. Id. at 607. Having concluded that the officers’ actions violated the Fourth Amendment, the Court considered whether the officers were entitled to qualified immunity. Id. at 614. The Court explained that “what ‘clearly established’ means in this context depends largely ‘upon the level of generality at which the relevant “legal rule” is to be identified.’” Id. at 614 (quoting Anderson, 483 U.S. at 639). That is, to be clearly established, “[t]he contours of the right must be sufficiently clear 3 1 The Supreme Court has stated, however, that the “clearly established” standard does 2 not mean that “an official action is protected by qualified immunity unless the very action in 3 question has previously been held unlawful,” Anderson v. C