agreeing with the opinion of Silberman, J., that “courts are not bound to accept anything and everything Congress labels its findings” (emphasis in original), but suggesting that “[w]hen the redressability inquiry involves a question of predictive fact regarding matters outside the realm of judicial expertise, ... courts should be reluctant to contradict the judgment of Congress, doing so only upon a showing that Congress’ judgment does not stand the test of rationality."
How later courts described this case
- agreeing with the opinion of Silberman, J., that “courts are not bound to accept anything and everything Congress labels its findings” (emphasis in original), but suggesting that “[w]hen the redressability inquiry involves a question of predictive fact regarding matters outside the realm of judicial expertise, ... courts should be reluctant to contradict the judgment of Congress, doing so only upon a showing that Congress’ judgment does not stand the test of rationality."
- rejecting the notion that en banc review is required to “formally bur[y]” circuit precedent that is “out of step” with intervening Supreme Court precedent because “it is black letter law that a circuit precedent eviscerated by subsequent Supreme Court cases is no longer binding on a court of appeals”
- intervening Supreme Court precedent must clearly dictate a departure from circuit law before a subsequent panel is free to discard an earlier panel's holding
- observing that "we have never as a court held that we are bound to accept a congressional appraisal of the effect of its product. Indeed, to do so would be to permit Congress, by legislation, to amend the Constitution."
Written by the judges who cited it.
The opinion
MILTON POLLACK, Senior District Judge,
concurring:
I concur dubitante with Judge Silberman on the issue of standing. My doubt stems *981 not from Judge Silberman’s analysis but from the unclear status of the law in the area. The Supreme Court’s cases provide inadequate guidance, and I therefore am somewhat uncertain about the proper resolution of the standing problem in this case. In light of that doubt, I write separately to show that — at least in my view — the end result would be identical on the merits, i.e., petitioners would be unsuccessful.
The court owes considerable deference to the NRC’s decision, which is in line with the Treasury Department’s interpretation of the Anti-Apartheid Act. When the language of the statute and the legislative history do not demonstrate that Congress had a specific intent on the issue in question, the court must respect the administrator’s interpretation if the choice the agency made is a reasonable one in the context of the particular statutory program. Chevron U.S.A. Inc. v. NRDC, Inc., 467 U.S. 837, 842-45 , 104 S.Ct. 2778, 2781-83 , 81 L.Ed.2d 694 (1984); Securities Indus. Ass’n v. Board of Governors, 847 F.2d 890, 893 (D.C.Cir.1988). 1
The interpretation of section 309 by the Department of Treasury and the NRC as not banning the importation of South African uranium hexafluoride is a plausible reading of the terms of the Act. Congress specified that it meant to ban the importation of uranium ore and uranium oxide from South Africa. Where Congress intended to prohibit the importation of not only the commodity itself, but also the commodity’s derivatives and byproducts, it expressly so provided. See 22 U.S.C. § 5069 (1) (Supp. IV 1986) (prohibiting importation of any “agricultural commodity or product or any byproduct or derivative thereof”). In section 309, Congress did not use similarly encompassing language, so the agencies were not directed to include South African uranium hexafluoride in the ban. Indeed, there might be a stronger case that the NRC had followed an impermissible construction if its ban had been more inclusive than the express words of the statute. Significantly, we were told at argument that South Africa, to date, has not manufactured within its own borders any hexafluoride for commercial exportation, and this reality makes it all the more improbable that Congress meant to address such exportation.
With regard to South African-origin uranium ore and uranium oxide that is transformed into uranium hexafluoride in other countries, the agencies reasonably concluded that uranium hexafluoride is not sufficiently similar to uranium ore or uranium oxide to be subject to the import bar. The Treasury Department has broad experience in implementing the substantial transformation doctrine in various contexts, and we defer to its decision that uranium hexaf-luoride is substantially transformed from uranium oxide. There is sufficient evidence from which Treasury and the NRC could conclude that uranium hexafluoride “emerges from a manufacturing process with a name, character, or use which differs from those of the original material subjected to the process.” Torrington Co. v. United States, 764 F.2d 1563, 1568 (Fed.Cir.1985). 2
*982 The NRC’s position and Treasury’s interpretation are permissible, and the court should defer to those agency constructions. It is not the business of the court to effectuate the “policy” of the Act in the absence of statutory language or clear congressional intent that is contrary to the agency’s interpretation.
. Petitioners contend that the court owes no deference to the NRC’s interpretation, because the NRC is not charged with administering section 309 of the Act. They are correct to note that it is the law of this circuit that when an agency interprets a statute other than the one it has been entrusted to administer, its interpretation is not entitled to deference. Department of Treasury v. FLRA, 837 F.2d 1163, 1167 (D.C.Cir.1988). In this case, however, the Treasury Department, which was charged with administering section 309 of the Act, already had interpreted the statute to permit the importation of South African uranium hexafluoride, 31 C.F.R. § 545.425 (1987), and the NRC explicitly purported to follow Treasury’s decision. J.A. at 11, 13, 16-18.
. Petitioners’ principal argument against the NRC’s decision is that a substantial transformation does not occur unless the process results in a product with a new end use. I see no binding authority that requires the agency to take that position, and, in fact, recent decisions indicate that petitioners’ position is incorrect. See Torrington Co., 764 F.2d at 1571 (key inquiry is not whether end use is changed but whether actual manufacturing process that causes transformation is substantial); Ferrostaal Metals Corp. v. United States, 664 F.Supp. 535, 541 (Ct. Int’l Trade 1987) (process that does not change end use of product can constitute substantial transformation if process results in "a change in the utility of the product”).