UNITED STATES ENVIRONMENTAL PROTECTION AGENCY, Appellee, v. GENERAL ELECTRIC COMPANY, Defendant-Appellant, Grand Street Artists, Plaintiff, 212 F.3d 689

Judge MINER dissents in a separate opinion. JACOBS, Circuit Judge: Cross-motions for rehearing have been filed, with respect to this Court’s December 14, 1999 opinion in the above-captioned case, United States Envtl. Protection Agency v. General Elec. Co., 197 F.3d 592 (2d Cir.1999), pursuant to Rules 35 and 40 of the Federal Rules of Appellate Procedure. The United States Environmental Protection Agency (“EPA”) asks the Court to reconsider our holding that- the- district court, pursuant to

Section 702 of the Administrative Procedure Act (“APA”), 5 U.S.C. § 702, may entertain General Electric’s motion to compel the EPA to respond to a non-party subpoena even though General Electric has not filed an independent action against the EPA. See General Elec. Co., 197 F.3d at 599. The EPA’s motion is denied. General Electric asks the Court to reconsider the next-to-last paragraph of the opinion, which states that “[o]n remand, the district court will, of course, review the EPA’s refusal to respond to the subpoena under the standards’ for review established by the APA.” Id. The fact that

Section 702 of the APA provides the applicable waiver of sovereign immunity in the action, see id. at 598-99, does not necessarily mean, General Electric argues, that the APA, 5 U.S.C. § 706(2)(A), furnishes the standard of review. General Electric argues that the Court can find a waiver of sovereign immunity pursuant to

Section 702, which permits federal review of a “legal wrong because of agency action,” 5 U.S.C. § 702, and then apply the standard of review set forth in the “law” violated, in this case Rule 45 of the Federal Rules of Civil Procedure. We grant General Electric’s motion for rehearing. Upon rehearing, we conclude that the next-to-last paragraph of our December 14, 1999 opinion, which would otherwise be a holding in this case, is not to be regarded as the opinion of the Court. The Court takes this step for several reasons.

First, the question of the appropriate standard of review was not reached by the district court or argued in this Court (beyond a reference in a footnote and a response thereto). Second, as General Electric’s motion for rehearing reflects, a plausible argument can be made in support of the idea that

Section 706 of the APA is not necessarily the appropriate standard of review. Third, the disposition of the instant appeal does not compel us to decide the question. Fourth, depending upon the course of events after remand, it may be unnecessary for the standard of review to be decided in this case. For instance, the district court could find that the EPA was entitled to withhold the documents under either the standard of review established by the APA or that set forth by GE.

Finally, if the question must be decided on remand, the district court, having the benefit of full briefing, will then be in the better position to consider the issue in the first instance. For the same reasons, the Court reaches this result without requesting additional briefing from the government. If the question of the appropriate standard of review must ultimately be decided, the government will have a full opportunity to state its views in the district court. In all other respects, the Court reaffirms its decision of December 14, 1999.