author: KORMAN, District Judge:

text:
    IN RE Larry MILLER, Debtor, First Community Bank, Plaintiff-Appellant, v. Maureen Gaughan, Chapter 7 Trustee, Defendant-Appellee.
    No. 14-16854
    United States Court of Appeals, Ninth Circuit.
    Argued and Submitted October 18, 2016 San Francisco, California
    Filed March 31, 2017

      Joseph E. Cotterman (argued), Andante Law Group PLLC, Scottsdale, Arizona, for Plaintiff-Appellant.
    Steven J. Brown (argued), Steven J. Brown & Associates LLC, Phoenix, Arizona, for Defendant-Appellee.

      Before: A. WALLACE TASHIMA and MILAN D. SMITH, JR., Circuit Judges, and EDWARD R. KORMAN, District Judge.

       The Honorable Edward R. Korman, Senior District Judge for the U.S. District Court for the Eastern District of New York, sitting by designation.

   OPINION

KORMAN, District Judge:

Larry and Kari Miller, both Arizona do-miciliaries, owned a cooperative apartment located at 2170 Jackson Street in San Francisco, California. The co-op was held in each of their names, as husband and wife. First Community Bank, a judgment creditor of Larry Miller, obtained a lien against the Millers’ co-op.

Under Arizona law, the co-op would be treated as community property. See A.R.S. § 25-211. If Arizona law applies, FCB’s judgment lien could not be enforced against the co-op, because the judgment upon which the lien was based arose from a guaranty signed by Larry Miller and not Kari Miller, and a guaranty that is signed by only one of two spouses is not binding on the couple’s community property under Arizona law.

Under California law, the co-op would not constitute community property because it was not acquired by the Millers while they were domiciled in California. See Cal. Fam. Code § 760. Instead, it would constitute a tenancy-in-common. See Cal. Civ. Code § 685. The application of California law would permit the judgment lien to be enforced against Larry Miller’s sole and separate interest in the co-op, because “[t]enants in common may each unilaterally alienate their shares through sale or gift or place encumbrances upon these shares.” United States v. Craft, 535 U.S. 274, 280, 122 S.Ct. 1414, 152 L.Ed.2d 437 (2002) (emphasis supplied). Thus, if California law applies, a judgment against Larry Miller would be enforceable only against his interest in the apartment, but not Kari Miller’s separate interest.

FACTUAL BACKGROUND

Against this backdrop for the choice-of-law issue presented by this case, we turn to a more detailed discussion of the underlying facts. Larry Miller was the President of Miller Holding Investments, Inc., which in turn was the General Partner of both El Paseo Partners, L.P. and El Rancho Partners, LP, both limited partnerships organized under California law. First Community Bank (“FCB”) is a California corporation, doing business in the State of California, with its principal place of business in Sonoma County, California.

In December 2006, FCB extended credit to Paseo and Rancho in exchange for a Business Loan Agreement, a Promissory Note in the original principal amount of $5,744,000, and a Commercial Guaranty from Miller that personally secured repayment of all obligations owed to FCB under the Note and the Loan Agreement. All three of these contracts selected California’s local law as the governing law. The Business Loan Agreement and the Promissory Note both stated on their face that they were accepted by FCB in California. Indeed, the guaranty given by Miller not only selected California as the governing law, it also provided that “[a]ny married person who signs this Guaranty hereby expressly agrees that recourse under this Guaranty may be had against both his or her separate property and community property.” Unfortunately, Paseo and Ran-cho could not live up to their obligations on the loans, and Miller defaulted on the guaranty.

PROCEDURAL HISTORY

On October 24, 2008, FCB sued Larry and Kari Miller in the United States District Court for the District of Arizona. FCB moved for summary judgment as to liability and damages on Larry Miller’s breach of the Commercial Guaranty, and also requested a “[rjuling that Kari Miller has received notice and due process in connection with this legal action, to the extent that any of the property subject or potentially subject to enforcement and execution upon the judgment, whether located in the State of Arizona, the State of California or elsewhere, is asserted to belong in whole or in part to her marital community.” Complaint at 7, First Community Bank v. Larry L. Miller and Kari Miller, No. 2:08-cv-01952-NVW (D. Ariz. 2009), ECF No. 1. While the answer filed to the complaint alleged that neither the “Miller[s’j marital community property, nor Kari Miller’s sole and separate property, is subject to the claims in [First Community] Bank’s complaint,” Answer at ¶ 4, id., ECF No. 11, the Millers’ “only legal opposition” to FCB’s motion for summary judgment was that “California law requires [FCB] first to execute on collateral securing the loan,” before making their motion. Order Granting Motion for Summary Judgment as to Liability at 2-3, id., ECF No. 23.

The district court rejected this argument, and entered judgment against Larry Miller for the principal amount of $5.744 million plus accrued interest and ancillary damages, for a total judgment of $6.373 million (the “Arizona judgment”). Judgment, id., ECF No. 36. The judgment made no reference to the Millers’ community property, although the order granting the motion observed, in dictum and without undertaking a choice-of-law analysis, that “any [liability of the marital community] appears to be precluded by A.R.S. § 25-214(0(2).” Order Granting Motion for Summary Judgment as to Liability at 3, id., ECF No. 23. FCB registered this judgment in the United States District Court for the Northern District of California pursuant to 28 U.S.C. § 1963. See Certification of a Judgment to be Registered in Another District, First Community Bank v. Miller, No. 09-mc-80131-PJH (N.D. Cal. 2009), ECF No. 1.

As of the time that FCB registered its judgment in California, Larry and Kari Miller held an ownership interest, to which reference was made earlier, in real property located at 2170 Jackson Street, San Francisco, California, which consisted of their ownership share in Twenty-One Seventy Jackson Street Corporation and a leasehold in an apartment owned by the co-op. On June 23, 2009, consistent with the manner in which a judgment lien is obtained, FCB recorded the California judgment in the Official Records of the San Francisco County Recorder’s Office.

Several years later, Larry Miller filed a petition for reorganization under Chapter 11 of the Bankruptcy Code in the District of Arizona. Miller’s proceeding was later converted to a Chapter' 7 liquidation. In the course of administering the Miller estate, the Chapter 7 Trustee, Maureen Gau-ghan, sold the Millers’ co-op. FCB filed an adversary proceeding, seeking a declaration that it held an enforceable judgment lien on the co-op, thereby granting it priority over the proceeds of the sale.

The bankruptcy court held that, “[b]e-cause the Miller Judgment was registered in California, California law governs the enforceability of the Miller Judgment against Debtors’ community property located in California, and under California law, Debtors’ community property located in California is liable for satisfaction of the Miller Judgment.” Judgment in Favor of First Community Bank at 4, First Community Bank v. Miller, No. 2:13-ap-00436-EPB (Bankr. D. Ariz. 2013), ECF No. 25. The Millers appealed to the district court.

THE DISTRICT COURT’S DECISION

The district court framed the issue presented as “whether an Arizona judgment against a husband on his sole and separate debt may be executed against the Arizona couple’s community property in California.” In re Miller, 517 B.R. 145, 147 (D. Ariz. 2014). Answering this question in the negative, the district court held that “the Arizona federal judgment against the husband alone, later registered in a California federal court and recorded in California, does not lien their community real property in California.” Id. Moreover, it continued that “[t]his is the rule by Arizona statute, and California choice of law principles yield to the Arizona rule concerning Arizona domiciliaries.” Id. Presumably drawing upon those principles, the district court concluded that “California has no interest in ousting Arizona marital law concerning obligations between husband and wife and of persons contracting with one spouse, and the California community property statute by its terms does not purport to do so.” Id.

We reverse the judgment of the district court. While we agree that the coop apartment does not come within the definition of community property, as that term is defined in Section 760 of the California Family Code, it does come within the definition of a tenancy-in-common. See Cal. Civ. Code § 685. The interests of a co-tenant in such tenancies, which are presumed to be held in equal shares, see Caito v. United California Bank, 20 Cal.3d 694, 705, 144 Cal.Rptr. 751, 576 P.2d 466 (1978), are subject to the enforcement of a judgment lien. The issue, then, is whether California should yield to Arizona’s community property law, and treat the Millers’ co-op as community property not subject to the enforcement of a judgment. Applying California’s choice-of-law rules, we hold that California law governs, and that the co-op would be treated as a tenancy-in-common, as defined in Section 685 of the California Civil Code, making Larry Miller’s interest in the co-op subject to enforcement of the judgment lien.

DISCUSSION

I. 28 U.S.C. § 1963 Does Not Obviate the Need for a Choice-of-Law Analysis

FCB’s principal argument on appeal is that the registration of the judgment against Larry Miller, pursuant to 28 U.S.C. § 1963, in the Northern District of California, was sufficient, by itself, to create an enforceable lien against the co-op. While FCB is correct that § 1963 requires the use of California’s lien creation rules, it does not do away with the task of conducting a choice-of-law analysis in the event that another state has an interest in application of its law.

A party may register and enforce a federal judgment in another district, and “[a] judgment so registered shall have the same effect as a judgment of the district court of the district where registered and may be enforced in like manner.” 28 U.S.C. § 1963. “This system of enforcing federal judgments parallels the California and Arizona systems for enforcing sister state judgments.” In re Miller, 517 B.R. at 154. Moreover, “[ejnforcement measures do not travel with the sister state judgment as preclusive effects do; such measures remain subject to the even-handed control of forum law.” Baker v. Gen. Motors Corp., 522 U.S. 222, 235, 118 S.Ct. 657, 139 L.Ed.2d 580 (1998).

Thus, under California’s enforcement procedures, when FCB registered the judgment rendered by the federal district court in Arizona in the Northern District of California, and formally recorded such judgment with the San Francisco County Recorder’s Office, it acquired a judgment lien on the Millers’ co-op. See Cal. Civ. Proc. Code § 697.310(a). Nevertheless, perfection of a lien alone does not ensure that such a lien can be enforced against a particular piece of property — the property must be “subject to enforcement of the money judgment.” See Lezine v. Sec. Pac. Fin., 14 Cal.4th 56, 65, 58 Cal.Rptr.2d 76, 925 P.2d 1002 (1996). Under California law, “[ejxcept as otherwise provided by law, all property of the judgment debtor is subject to enforcement of a money judgment.” Cal. Civ. Proc. Code § 695.010(a) (emphasis supplied).

While we are not award of any California case that construes the term “except as otherwise provided by law” in a comparable context, the most reasonable construction suggests that it refers not just to the local law of California, but also to the laws of other states that may apply as a result of the application of California’s choice-of-law rules. Our construction of the term is informed by a comparison with a similar term, which appears in the same Article of the California Code of Civil Procedure (“Enforcement of Money Judgments”) as does § 695.010. California Code of Civil Procedure § 697.310(a), which provides the rule on the creation of judgment liens, contains an exception for circumstances “as otherwise provided by statute,” rather than “as otherwise provided by law.” Cal. Civ. Proc. Code § 697.310(a) (emphasis supplied). This difference suggests to us that while the California Legislature intended to limit the exception in § 697.310(a) to certain express statutory carve-outs, it intended to make the exception contained in § 695.010(a) encompass California’s whole law, including its choice-of-law rules. Cf. Restatement (Second) op Conflict of Laws (1971) (“Restatement”) § 4(2) (“As used in the Restatement of this Subject, the ‘law’ of a state is that state’s local law, together with its rule of Conflict of Laws.”).

Our discussion would end here if this case were being litigated' in California. Some additional discussion, however, is required. While California’s choice-of-law rules apply here, they do so as a result of a somewhat indirect path, which we now trace. “In federal question cases with exclusive jurisdiction in federal court, such as bankruptcy,” including this case, we apply federal choice-of-law rules. See In re Lind say, 59 F.3d 942, 948 (9th Cir. 1995). Federal choice-of-law rules are based on the Restatement (Second) of Conflict of Laws. See In re Vortex Fishing Sys., Inc., 277 F.3d 1057, 1069 (9th Cir. 2001). Restatement § 230 provides that, “[wjhether a lien creates an interest in land and the nature of the interest created are determined by the law that would be applied by the courts of the situs.” Moreover, if the court of the situs “would have decided the particular question by reference to the local law of some other state, the forum will do likewise.” Restatement § 230, cmt. b. As noted previously, California is the situs of the real property at issue, so we apply its choice-of-law rules to resolve the conflict in this case.

II. Choice-of-Law Analysis

California applies the governmental interests mode of analysis to resolve choice-of-law problems. See McCann v. Foster Wheeler LLC, 48 Cal.4th 68, 87, 105 Cal.Rptr.3d 378, 225 P.3d 516 (2010). Under this approach, we analyze three related questions: (1) does relevant law vary between the potentially affected jurisdictions?; (2) If there is a difference in law, does a true conflict exist such that “each of the states involved has a legitimate but conflicting interest in applying its own law[?]”; (3) If there is a true conflict, “which state’s interest would be more impaired if its policy were subordinated to the policy of the other state[?J” See Kearney v. Salomon Smith Barney, Inc., 39 Cal.4th 95, 111-12, 45 Cal.Rptr.3d 730, 137 P.3d 914 (2006) (citations omitted).

We begin our analysis with Arizona law, and more specifically its community property law, and then proceed to discuss California law.

Community property rests on a notion that husband and wife are a marital partnership (a ‘community’) and should share accordingly.... Because it can exist only between husband and wife and cannot be converted into separate property without the consent of both spouses, community property can be conveyed to a third person only as an undivided whole.... Prior to the 1960s, the husband was deemed to be manager of the community, but beginning in the late 1960s, all ... community property states enacted statutes giving the husband and wife equal management powers. These statutes, however, differ in many details.

Jesse Dukeminier, Property 354-55 (2d ed. 1988).

Although Arizona and California both have community property laws, there is one difference between the two that gives rise to the necessity of a choice-of-law analysis. In Arizona, “[a]ny transaction of guaranty, indemnity or suretyship” requires the “joinder of both spouses” — a requirement that has been construed to mean the signature of both spouses on the guaranty contract. Ariz. Rev. Stat. (“A.R.S.”) § 25-214(0(2). Thus, the statute “bars collection of the guaranteed debt from the community’s property,” unless both spouses sign the guaranty. See Rackmaster Sys., Inc. v. Maderia, 219 Ariz. 60, 64, 193 P.3d 314 (Ct. App. 2008).

California has no such dual-signature requirement with respect to either community property, joint property, or a tenancy-in-eommon. Cf. Cal. Fam. Code § 1102(a); Cal. Crv. Proc. Code § 695.010. Thus, all such property is subject to the enforcement of a money judgment, even where a guaranty underlying the judgment is signed by only one of two spouses. The difference between Arizona and California law, however, does not compel the conclusion that there is a “true conflict,” as that term is understood in the choice-of-law context. The existence of such a conflict turns on whether the circumstances of the case implicate the policies underlying the ostensibly conflicting laws.

Hamada v. Valley National Bank, 27 Ariz.App. 433, 555 P.2d 1121 (1976), contains a helpful discussion of the history and purpose of Arizona’s dual-signature requirement. In Hornada, the Arizona Court of Appeals explained that “[t]he husband, as a member of the community, has no power under the law without the knowledge and consent of his wife, to use community assets to guarantee the payment of a debt of a stranger to the community, it deriving no benefit therefrom.” Id. at 436, 555 P.2d 1121 (emphasis supplied). It continued, “[t]his law has now been codified in A.R.S. Sec. 25-214(0(2) which requires both spouses to join in any transaction of guaranty, indemnity or sure-tyship.” Id. Thus, Hamada makes clear that the policy underlying Arizona’s dual-signature requirement is to ensure that a spouse who lacks knowledge of, and does not acquiesce to, a guaranty is not bound. See also Vance-Koepnick v. Koepnick, 197 Ariz. 162, 163, 3 P.3d 1082 (Ct. App. 1999) (“The purpose of such statutes is to protect one spouse against obligations undertaken by the other spouse without the first spouse’s knowledge and consent.”).

The absence of the signature of one spouse, however, does not necessarily indicate that the non-signing spouse did not know of, or consent to, the execution of the guaranty. The signature requirement is simply the mechanism for avoiding a dispute as to this issue. See All-Way Leasing, Inc. v. Kelly, 182 Ariz. 213, 216, 895 P.2d 125 (Ct. App. 1984). A guaranty without both required signatures is “not per se void, only voidable by the nonsigning spouse.” Geronimo Hotel & Lodge v. Putzi, 151 Ariz. 477, 479, 728 P.2d 1227 (1986). Thus, the Arizona Court of Appeals has recognized that “there may be circumstances where a spouse may be estopped from disaffirming a contract.” Consol. Roofing & Supply Co., Inc. v. Grimm, 140 Ariz. 452, 458, 682 P.2d 457 (Ct. App. 1984).

The complaint filed by FCB in Arizona, which ended with the judgment against Larry Miller that underlies the lien at issue, put the Millers on notice that FCB planned to go after their community property. Nevertheless, the Millers did not defend on the ground that Kari Miller lacked “knowledge and acquiescence” sufficient to enable the Millers to rely on the absence of her signature on the guaranty. Indeed, as we explained earlier, rather than invoking A.R.S. § 25-214 in response to FCB’s motion for summary judgment in the proceeding on the guaranty, their only legal opposition was based on FCB’s alleged, failure to comply with a California procedural rule. See Order Granting Motion for Summary Judgment as to Liability at 2-3, First Community Bank v. Larry L. Miller and Kari Miller, No. 2:08-cv-01952-NVW (D. Ariz. 2009), ECF No. 23. Moreover, although Larry Miller warranted in the guaranty that he had the “full power, right, and authority to enter into this guaranty,” the trustee failed to come forward with any evidence in the bankruptcy court to suggest that Kari Miller did not either know of, or acquiesce to, the guaranty.

While we do not invoke the doctrines of estoppel or waiver here, our discussion of it is intended to underscore the fact that a guaranty, signed by only one of two spouses, does not necessarily implicate the underlying policy of protecting a spouse who lacks knowledge of a guaranty. Indeed, here, because of the manner in which the Millers chose to litigate the complaint that gave rise to the underlying judgment, we do not know the extent that the underlying policy interest would be impaired by the enforcement of the judgment against the couple’s community property.

On the other hand, under the circumstances here, California does have a significant interest in effectuating its policy regarding enforcement of judgments in favor of California creditors against real property located there, whether the property constitutes community property or a tenancy-in-common. “California, as does every state, has a substantial interest in the economic health of corporations which do business within its borders. It derives substantial sales and income taxes, as well as other revenues, directly and indirectly from a corporation’s activities within the state.” In re Air Crash Disaster Near Chi., Ill. on May 25, 1979, 644 F.2d 594, 614 (7th Cir. 1981). Moreover, California also has an interest in fostering the growth of commercial activities that require ready access to credit — a policy that would be undermined by limiting the ability of California creditors to enforce obligations for activities undertaken in California and made subject to the operation of California law by consent of the parties. Indeed, when Larry Miller sought credit in California to finance his business venture, he took advantage of the credit environment fostered by what the district court described as California’s “general policy favoring creditors.” In re Miller, 517 B.R. at 149 n.l.

These considerations “reflect[ ] the principle articulated by the California Supreme Court that the policy of protecting the creditors of a spouse outweighs the policy of protecting family income.” Ordlock v. Comm’r, 538 F.3d 1136, 1139 (9th Cir. 2008) (internal ellipses and alterations omitted). So too does the fact that California renders the entire community property of a married couple subject to enforcement of a guaranty — even if the guaranty was made solely for the benefit of a single spouse. See Lezine v. Sec. Pac. Fin. Servs., Inc., 14 Cal.4th 56, 64, 58 Cal.Rptr.2d 76, 925 P.2d 1002 (1996). While the co-op owned by the Millers did not come within the definition of community property in California, we refer to the manner in which community property is treated there simply to illustrate the strength of California’s interest in the enforcement of the judgment lien against the co-op apartment located in San Francisco.

The policy interests discussed above are especially strong where, as here, the law chosen by the parties in their various agreements (including the guaranty) includes California’s creditor-friendly interest described above. Indeed, the Supreme Court of California has adopted § 187 of the Restatement, see Nedlloyd Lines B.V. v. Superior Court, 3 Cal.4th 459, 464-65, 11 Cal.Rptr.2d 380, 834 P.2d 1148 (1992), which upholds “[t]he law of the state chosen by the parties to govern their contractual rights and duties ..., even if the particular issue is one which the parties could not have resolved by an explicit provision in their agreement directed to that issue.” Restatement § 187(2). Section 187 is a policy “providing for incorporation by reference” that enables parties “to determine the terms of their contractual engagements,” not a choice-of-law rule as such. Id. § 187, cmt. c.

The purposes underlying this section “are to protect the justified expectations of the parties and to make it possible for them to foretell with accuracy what will be their rights and liabilities under the contract.” Id. § 187, cmt. e. Moreover, the Restatement recognizes that, in multi-state transactions such as the one at issue, “letting the parties choose the law to govern the validity of the contract and the rights created thereby” is the better route to ensure “certainty and predictability of result.” Id. Indeed, an even more specific provision, Restatement § 194, provides that “[t]he validity of a contract of surety-ship and the rights created thereby are determined, in the absence of an effective choice-of-law by the parties, by the law governing the principal obligation which the contract of suretyship was intended to secure,” subject to exceptions similar to those applicable to § 187. Again, there was an effective choice-of-law made by the parties. Moreover, “the principal obligation that the contract of suretyship was intended to secure” — the Promissory Note — was governed by “the laws of the State of California without regard to its conflicts of law provisions.” Those laws would make the lien enforceable against Larry Miller’s ownership interest as a co-tenant of the coop apartment.

Neither of the exceptions to the incorporation by reference rule of § 187, which also apply to the rule of § 194, is present here. Specifically, this is not a case in which “the chosen state has no substantial relationship to the parties or the transaction,” Restatement § 187(2)(a), nor would the chosen law “be contrary to a fundamental policy of a state which has a materially greater interest than the chosen state in the determination of the particular issue.” Id. § 187(2)(b). While Arizona may have an interest in the determination of this issue, we cannot say that its interest is “materially greater ... than [that of] the chosen state,” particularly where the record does not adequately show whether or not Kari Miller had knowledge of, or consented to, the guaranty. Nor, to use the test applied in cases of a true conflict, is Arizona’s interest more substantially impaired than that of California.

We recognize that Larry Miller’s agreement to the application of California law does not bind Kari Miller. Nevertheless, the agreement should bind Larry Miller, and permit the enforcement of that agreement against him as a tenant-in-common. Moreover, the enforcement of the agreement in that way protects Kari- Miller’s one-half interest in the property as a co-tenant. Thus, the underlying purpose of A.R.S. § 25-214(0(2), which is “to protect one spouse against obligations undertaken by the other spouse without the first spouse’s knowledge and consent,” see Vance-Koepnick, 197 Ariz. at 163, 3 P.3d 1082, is accommodated to a significant degree, rather than substantially impaired, by application of California law.

California’s interest is similarly accommodated, because FCB, the California creditor that was the beneficiary of the guaranty, is able to recover the share of proceeds from the sale of the co-op attributable to Larry Miller’s interest. Application of Arizona law would defeat that interest entirely. Under these circumstances, even if there were a true conflict, we would apply California law because its “interest would be more impaired if its policy were subordinated to the policy of the other state.” See Kearney, 39 Cal.4th at 112, 45 Cal.Rptr.3d 730, 137 P.3d 914. In sum, we agree with FCB “that California [has] a compelling interest in applying its law,” under the circumstances presented here.

CONCLUSION

The judgment of the district court is REVERSED AND REMANDED for proceedings consistent with this opinion.

      . California law treats corporations formed "primarily for the purpose of holding title to ... improved real property, and [in which] all or substantially all of the shareholders of the corporation receive a right of exclusive occupancy in a portion of the real property,” as real property. Cal. Civ. Code § 6566. “[T]he correlative interest in the stock cooperative corporation” is also treated as an interest in real property. See Cal. Civ. Code § 783.1.

      . The district court and the trustee relied on Grappo v. Coventry Financial Corp., 235 Cal. App.3d 496, 286 Cal.Rptr. 714 (1991), for the proposition "that the property rights of a husband and wife are governed by the law of the couple's matrimonial domicile at the time of the acquisition of the property regardless of [where] the property is located.” Grappo, however, involved a dispute between a husband and wife regarding their respective rights under family law in a piece of real property held in the wife’s name, although claimed by the husband to be community property. After conducting a choice-of-law analysis, id. at 505-06, 286 Cal.Rptr. 714, the California Court of Appeal rejected the husband’s claim, based on its conclusion "that California, and not Nevada [where the property was located], is the state which has the most significant relationship to the parties and issues in this case.” Id. at 506, 286 Cal.Rptr. 714. The dispute in the present case involves a claim by a California-based third-party creditor, on property located in California, giving California an interest in the application of its law.

      . Other community property jurisdictions with statutes similar to A.R.S. § 25-214 also recognize that estoppel principles may apply. See, e.g., Miller v. Johnston, 270 Cal.App.2d 289, 300 n.6, 75 Cal.Rptr. 699 (1969) (holding that a spouse was bound by a conveyance of community property to which she was not a party, because of her “knowledge and acquiescence” to the conveyance); Colo. Nat’l Bank of Denver v. Merlino, 35 Wash.App. 610, 616, 668 P.2d 1304 (1983) ("A community is es-topped to deny liability due to the failure of one spouse to join a transaction when one spouse permits the other to conduct the transaction, both have a general knowledge of the transaction, and both are ready to accept the benefits which may come from it.”).

      . "[T]he ordinary rule, based on considerations of fairness, does not place the burden upon a litigant of establishing facts peculiarly within the knowledge of his adversary.” Campbell v. United States, 365 U.S. 85, 96, 81 S.Ct. 421, 5 L.Ed.2d 428 (1961); see also Nealey v. Transportacion Maritima Mexicana, S.A., 662 F.2d 1275, 1280-81 (9th Cir. 1980). Thus, if Kari Miller had challenged the validity of the lien prior to bankruptcy on the ground that she did not know of or acquiesce to the guaranty, the burden of proof would have been on her. Because the trustee is essentially relying on her asserted interest, the burden in bankruptcy should logically fall to her.

      . " 'Suretyship,' as here used, includes 'guaranty,' for ... there has never been general agreement as to what distinction, if any, should be drawn between the two terms.” Restatement § 194, cmt. a.


source: Caselaw Access Project

author: KOZINSKI, Circuit Judge: O’SCANNLAIN, Circuit Judge,

license: Public Domain

text:
    Carl WEST, Plaintiff-Appellant, v. UNITED STATES of America; Joe Gordwin, an FBI agent, Defendants-Appellees.
    No. 13-16909
    United States Court of Appeals, Ninth Circuit.
    Argued and Submitted January 6, 2016, San Francisco, California
    Filed April 3, 2017

      David W. Dow (argued), Phoenix, Arizona, for Plaintiff-Appellant.
    Peter M. Lantka (argued), Phoenix, Arizona, for Defendants-Appellees.
    Before: ALEX KOZINSKI, DIARMUID F. O’SCANNLAIN and M. MARGARET McKEOWN, Circuit Judges.

       Following argument in this case, Judge McKeown was drawn to replace Judge Noo-nan.

   Partial Concurrence and Partial Dissent by Judge O’SCANNLAIN

OPINION

KOZINSKI, Circuit Judge:

We consider whether an appellant’s notice of appeal satisfied the requirements of Federal Rule of Appellate Procedure 3.

BACKGROUND

Carl West was convicted of robbery and sentenced to twenty years in prison because Joe Gordwin, then an FBI agent, “manufactured and coerced” the testimony of various witnesses at West’s trial. When Gordwin’s actions were exposed, West was released and the charges against him were dropped. This appeal concerns West’s subsequent civil suit against the United States and Gordwin based on the misconduct in West’s criminal case.

West alleged thirteen causes of action and requested punitive damages against both the United States and Gordwin. The United States filed a motion to dismiss West’s complaint, addressing only West’s claims “against the United States,” not those against Gordwin. The government noted that it “d[id] not represent Defendant Joe Gordwin.” At that time, West hadn’t served Gordwin with process. In fact, after the United States filed its motion to dismiss, the district court granted West an extension of time in which to serve Gordwin under Federal Rule of Civil Procedure 4.

The district court granted the government’s motion to dismiss, but it dismissed all of West’s claims, including those against Gordwin. The district court entered judgment “in favor of defendants and against plaintiff’ the same day. Gord-win hadn’t been served yet, and West’s deadline for service hadn’t passed.

West then filed his notice of appeal (NOA). He included Gordwin and the United States in the caption and listed the district court’s order and judgment as the basis of his appeal. West didn’t otherwise identify Gordwin or the claims against him in the NOA. West did say that he was appealing “as to the Defendant United States of America.” See infra p. 524. In his opening brief, West argued that certain claims against both the United States and Gordwin were wrongfully dismissed.

DISCUSSION

Federal Rule of Appellate Procedure 3 lists the requirements for taking an appeal as of right in federal court. The appealing party must file an NOA within the time set by Rule 4. Fed. R. App. P. 3(a). The NOA must identify each appellant, Rule 3(c)(1)(A); “designate the judgment, order, or part thereof being appealed,” Rule 3(c)(1)(B); and “name the court to which the appeal is taken,” Rule 3(c)(1)(C). These requirements are jurisdictional, see Torres v. Oakland Scavenger Co., 487 U.S. 312, 317, 108 S.Ct. 2405, 101 L.Ed.2d 285 (1988), but the Rule cautions against their formalistic application: “An appeal must not be dismissed for informality of form or title of the notice of appeal, or for failure to name a party whose intent to appeal is otherwise clear from the notice.” Fed. R. App. P. 3(c)(4).

While no party has raised an issue with West’s NOA or our ability to review the district court’s dismissal of his claims, “[a] court has a duty to assure itself of its own jurisdiction, regardless of whether jurisdiction is contested by the parties.” Peterson v. Islamic Republic of Iran, 627 F.3d 1117, 1125 (9th Cir. 2010). West’s NOA faces two potential compliance issues as to his claims against Gordwin: subsections (c)(1)(A) and (c)(1)(B).

A. In Torres v. Oakland Scavenger Co., Torres was barred from appealing because his name was omitted from the NOA “due to a clerical error.” 487 U.S. at 313, 318, 108 S.Ct. 2405. The Supreme Court held that failing to identify an appellant in the NOA deprives a U.S. Court of Appeals of jurisdiction over that appellant’s case. Id. at 315-18, 108 S.Ct. 2405. The Court acknowledged that this caused a “harsh result” in Torres’s case, but it explained that specificity in naming an appellant is required by the clear text of Rule 3. See id. at 318, 108 S.Ct. 2405. But neither Rule 3 nor Torres mentions appellees. The rule’s only subsection that requires naming the parties to the appeal states that the NOA must

specify the party or parties taking the appeal by naming each one in the caption or body of the notice, but an attorney representing more than one party may describe those parties with such terms as “all plaintiffs,” “the defendants,” “the plaintiffs A, B, et al.,” or “all defendants except X.”

Fed. R. App. P. 3(c)(1)(A) (emphasis added); see also Chathas v. Smith, 848 F.2d 93, 93 (7th Cir. 1988) (“There is no mention of appellees.... ”).

We have not addressed in a prece-dential opinion whether failing to name an appellee is a jurisdictional bar to considering an appeal against that appellee. But see Hale v. Arizona, 967 F.2d 1356, 1361 (9th Cir. 1992) (“Rule 3(c) does not require that appellees be listed, only appellants.”), reh’g en banc, 993 F.2d 1387 (9th Cir. 1993). Other circuits have held that failing to name certain appellees in an NOA doesn’t necessarily preclude an appeal against those appellees. See, e.g., Longmire v. Guste, 921 F.2d 620, 622 (5th Cir. 1991) (per curiam) (holding that appellant’s failure to name appellee wasn’t a jurisdictional bar to review); Battle v. District of Columbia, 854 F.2d 1448, 1450 (D.C. Cir. 1988) (per curiam) (noting the same); cf. Chathas, 848 F.2d at 94 (finding omission of appellee’s name to be harmless error). The Fifth Circuit held that “[t]he jurisdictional prerequisite of [Rule] 3(c) only requires naming with specificity the appellants taking the appeal and not the appellees against whom the appeal is being taken.” Longmire, 921 F.2d at 622. No circuit has reached a contrary conclusion.

Consistent with other circuits and the plain language of the rule, we hold that failing to name an appellee in an NOA is not a bar to an appeal. Therefore, any ambiguity about the identity of the appel-lees in West’s NOA doesn’t preclude our review of West’s claims against Gordwin.

B. The Supreme Court has also told us that “courts should construe Rule 3 liberally when determining whether it has been complied with.” Smith v. Barry, 502 U.S. 244, 248, 112 S.Ct. 678, 116 L.Ed.2d 678 (1992). “Thus, when papers are ‘technically at variance with the letter of [Rule 3], a court may nonetheless find that the litigant has complied with the rule if the litigant’s action is the functional equivalent of what the rule requires.’ ” Id. (alteration in original) (quoting Torres, 487 U.S. at 316-17, 108 S.Ct. 2405). In Smith, the Supreme Court held that we may construe an appellant’s opening brief as an NOA if it contains all of the information that Rule 3 requires. Id. at 248-50, 112 S.Ct. 678. In Foman v. Davis, the NOA didn’t name the judgment, but the Court held that it was error to treat the NOA as including only an appeal from a specifically named order and. not the judgment. 371 U.S. 178, 181, 83 S.Ct. 227, 9 L.Ed.2d 222 (1962). We have interpreted these rulings as “rejecting] a literal interpretation of Rule 3(c)(1)(B),” which stands in contrast to the Court’s narrow application of Rule 3(c)(1)(A). Le v. Astrue, 558 F.3d 1019, 1022 (9th Cir. 2009).

“When ‘a party seeks to argue the merits of an order that does not appear on the face of the notice of appeal,’ we consider: ‘(1) whether the intent to appeal a specific judgment can be fairly inferred and (2) whether the appellee was prejudiced by the mistake.’ ” Id. at 1022-23 (quoting Lolli v. County of Orange, 351 F.3d 410, 414 (9th Cir. 2003)). “In determining whether ‘intent’ and .‘prejudice’ are present, we apply a two-part test: first, whether the affected party had notice of the issue on appeal; and, second, whether the affected party had an opportunity to fully brief the issue.” Ahlmeyer v. Nev. Sys. of Higher Educ., 555 F.3d 1051, 1055 (9th Cir. 2009) (quoting Lynn v. Sheet Metal Workers’ Int’l Ass’n, 804 F.2d 1472, 1481 (9th Cir. 1986)).

Pursuant to this functional approach, we have considered appeals from orders that weren’t named in the NOA and were discussed only in appellate briefs. See, e.g., One Indus., LLC v. Jim O’Neal Distrib., Inc., 578 F.3d 1154, 1159 (9th Cir. 2009); Lynn, 804 F.2d at 1481. In these cases, the appellants’ intent to appeal the otherwise unnamed orders were clear from their briefs. The appellees suffered no prejudice because they had opportunities to respond in their answering briefs.

West titled his NOA, “Plaintiffs Notice of Appeal to the Ninth Circuit Court of Appeals from the Order and Judgment of the United States District Court” (capitalization altered). The title alone contained all of the information that Rule 3 required. Moreover, the main text of West’s NOA stated:

Notice is hereby given that Plaintiff in the above-entitled case, Carl West, hereby appeals to the United States Court of Appeals for the Ninth Circuit the Order of the Hon. G. Murray Snow dated August 21, 2013 and the Judgment of the Court entered August 21, 2013 dismissing this action as follows: Plaintiff appeals the dismissal with prejudice of Counts 4, 7, 9, 10 and 14 as to the Defendant United States of America,

(capitalization altered). While West identified certain counts against the United States, he twice named in full the district court’s order and judgment. Construing the NOA functionally, we conclude that it sufficiently indicated West’s intent to appeal the entire district court order and the judgment dismissing the whole suit.

West’s opening brief on appeal further clarified the scope of his appeal. It stated that the same counts he appealed as to the United States “as well as 42 U.S.C. § 1983 claims under Counts 6 and 8 and 14, punitive damages, should not have been dismissed against not yet served Defendant Joe Gordwin.” West explained that the district court’s dismissal order didn’t address the claims against Gordwin “but proceeded to dismiss the entire ease.” That dismissal was error, he argued. West’s argument was more than sufficient to present the issue on appeal.

C. The district court failed to distinguish between claims against the United States and claims against Gordwin when dismissing the case with prejudice. It was clear error for the district court to dismiss the claims against Gordwin, who wasn’t a party to the case because he hadn’t been served and the time for service had not expired. See European Community v. RJR Nabisco, Inc., 355 F.3d 123, 128, 139 (2d Cir. 2004) (holding that there was no procedural basis for dismissal when the plaintiffs’ deadline for service had not expired), cert. granted, vacated on other grounds & remanded, 544 U.S. 1012, 125 S.Ct. 1968, 161 L.Ed.2d 845 (2005); cf. Franklin v. Murphy, 745 F.2d 1221, 1226 (9th Cir. 1984) (explaining that it was error to dismiss a complaint without notice before the plaintiff served it when the plaintiff had paid filing fees).

The dissent claims that the result we reach is “both unfair and inequitable” because “Gordwin never received notice of the appeal nor had the opportunity to brief the issues concerning him.” Dissent at 525. But the dissent’s concerns arise out of the district court’s error, not any problem with West’s NOA. Because the district court prematurely dismissed Gordwin before West served him, Gordwin couldn’t be on the service list for West’s brief. See dissent at 525. West’s NOA and brief included sufficient information to put any reader on notice of his appeal. His intent to appeal was clear, and Gordwin suffered no prejudice. Gordwin is in the exact same position he was in prior to the district court’s error and this ensuing appeal: waiting for West to serve him.

We address the merits of West’s other claims in a memorandum disposition filed concurrently with this opinion.

REVERSED.

O’SCANNLAIN, Circuit Judge,

concurring in part and dissenting in part:

While I concur in the court’s reversal of the final judgment in the concurrent memorandum disposition with regard to West’s claims against the United States, I must respectfully dissent from the opinion’s holdings with regard to West’s claims against Agent Gordwin. Because of a serious jurisdictional defect, I would instead dismiss the appeal as to him rather than reverse and remand and expose him to farther proceedings.

I

We simply lack jurisdiction to review the district court’s judgment with respect to Agent Gordwin because the Notice of Appeal (“NOA”) specifies that West “appeals the dismissal with prejudice of Counts 4, 7, 9, 10 and 14 as to the Defendant United States of America.” See Fed. R. App. P. 3(c)(1)(B). Counts 6 and 8, the only counts which relate to claims against Defendant Gordwin, are nowhere mentioned and are presumably excluded from this appeal.

Of course, when a party seeks to argue the merits of an order that does not appear on the face of the NOA, Le’s two-step analysis applies. Le v. Astrue, 558 F.3d 1019, 1022-23 (9th Cir. 2009) (quoting Lolli v. County of Orange, 351 F.3d 410, 414 (9th Cir. 2003)). But, the majority errs when it concludes that West’s intent to appeal the judgment with respect to Agent Gordwin can be inferred and that he was not prejudiced. Maj. at 524.

Such holding disregards Ninth Circuit precedent. “In determining whether ‘intent’ and ‘prejudice’ are present, we apply another two-part test: first, whether the affected party had notice of the issue on appeal; and, second, whether the affected party had an opportunity to fully brief the issue.” Ahlmeyer v. Nevada Sys. of Higher Educ., 555 F.3d 1051, 1055 (9th Cir. 2009) (quoting Lynn v. Sheet Metal Workers’ Int’l Ass’n, 804 F.2d 1472, 1481 (9th Cir. 1986)).

It is undisputed that Agent Gordwin never received notice of the appeal nor had the opportunity to brief the issues concerning him. West briefly addressed the claims against Agent Gordwin in his opening brief, but there is no evidence such brief was ever properly served. Nor, unsurprisingly, was there any response from Agent Gordwin. This differentiates the present case from those in which the Court has held that briefs discussing a judgment not referenced in the NOA may provide notice. See, e.g., Lynn, 804 F.2d at 1481 (finding notice where “appellant served the affected party ... with a copy of the brief in which he raised the issue,” and “the [affected party] filed a joint brief ... in which this issue was fully discussed”) (emphasis added); United States v. One 1977 Mercedes Benz, 708 F.2d 444, 451 (9th Cir. 1983) (finding notice where appellant “addressed] the dismissal of the third-party action in her opening brief ... and served that brief on all third-party defendants”) (emphasis added). Thus, Ahlmeyer makes clear that West’s failure to serve Agent Gordwin forecloses our ability to review the claims against him. Ahlmeyer, 555 F.3d at 1055.

The suit in which Agent Gordwin was named was filed and dismissed in 2013. There is no evidence that he has been served with papers at any stage of this litigation. It is both unfair and inequitable to require, as the majority does, that Agent Gordwin remain exposed to continued litigation, which began four years ago, without notice to him should West eventually decide to provide him with the due process to which he was entitled from the start.

II

For the foregoing reasons, I would dismiss the appeal with respect to the claims against Agent Gordwin, rather than let this case go forward as to him.

      . The relevant Certificate of Filing and Service only certifies delivery to an Assistant United States Attorney representing the government.


author: WILLIAMS, Senior Circuit Judge: BROWN, Circuit Judge,

text:
    WATERKEEPER ALLIANCE, et al., Petitioners v. ENVIRONMENTAL PROTECTION AGENCY, Respondent U.S. Poultry and Egg Association, et al., Intervenors
    No. 09-1017 Consolidated with 09-1104
    United States Court of Appeals, District of Columbia Circuit.
    Argued December 12, 2016
    Decided April 11, 2017

      Jonathan J. Smith, Marietta, GA, argued the cause for petitioners Waterkeeper Alliance, et al. With him on the briefs was Eve C. Gartner, New York, NY.
    David Y. Chung argued the cause for petitioner National Pork Producers Council. With him on the briefs were Richard E. Schwartz, Washington, DC, and Sherrie A. Armstrong. Ellen Steen entered an appearance.
    Daniel H. Lutz, Orrville, OH, and Hope M. Babcock were on the brief for amici curiae American Lung Association and American Thoracic Society in support of petitioners Waterkeeper Alliance, et al.
    Jonathan Skinner-Thompson and Erica M. Zilioli, Attorneys, U.S. Department of Justice, argued the causes for respondent. With them on the brief was John C. Cru-den, Assistant Attorney General. Sue S. Chen and Cynthia J. Morris, Attorneys, U.S. Department of Justice, entered appearances.
    Eve C. Gartner and Jonathan J. Smith were on the brief for intervenors-respon-dents Waterkeeper Alliance, et al.
    Richard E. Schwartz and David Y. Chung, Washington, DC, were on the brief for intervenor-respondent U.S. Poultry and Egg Association. Sherrie A. Armstrong and James T. Banks, Washington, DC, entered appearances.
    Before: BROWN and SRINIVASAN, Circuit Judges, and WILLIAMS, Senior Circuit Judge.
   Concurring opinion filed by Circuit Judge BROWN.

WILLIAMS, Senior Circuit Judge:

Anyone with a pet knows firsthand that raising animals means dealing with animal waste. But many of us may not realize that as the waste breaks down, it emits serious pollutants — most notably ammonia and hydrogen sulfide. While those emissions are miniscule for pet owners, they can be quite substantial for farms that have hundreds or thousands of animals.

Two provisions of federal law — sections of the Comprehensive Environmental Response, Compensation, and Liability Act of 1980 (“CERCLA”) and the Emergency Planning and Community Right-to-Know Act of 1986 (“EPCRA”) — require parties to notify authorities when large quantities of hazardous materials (such as ammonia or hydrogen sulfide) are released into the environment. See 42 U.S.C. § 9603 (CERCLA); id. § 11004 (EPCRA). On learning of such a release, the EPA- has broad powers to take remedial actions or order further monitoring or investigation of the situation. See id. § 9604.

In 2008 the EPA issued a final rule that generally exempts farms from CERCLA and EPCRA reporting requirements for air releases from animal waste. (“Air releases” refer only to emissions made into the air, rather than into water or soil.) The EPA reasoned that those “reports are unnecessary because, in most cases, a federal response is impractical and unlikely.” CERCLA/EPCRA Administrative Reporting Exemption for Air Releases of Hazardous Substances from Animal Waste at Farms, 73 Fed. Reg. 76,948, 76,956/1 (Dec. 18, 2008) {“Final Rule”). In a change from the proposed rule, the EPA somewhat limited the exemption. Commenters had expressed a “desire to receive information regarding releases from large concentrated animal feeding operations,” known as “CAFOs,” which generally house thousands or even tens of thousands of animals. In response, the EPA retained the reporting requirement for CAFOs under EPCRA, which, as we’ll see in more detail later, has a public-disclosure requirement that’s missing from the relevant CERCLA provisions. See id. at 76,950/2; see also id. at 76,952/1-2, 76,953/3; (CAFO thresholds).

A number of environmental groups objected, claiming that the Final Rule ran afoul of the underlying statutes (and was therefore outside the EPA’s delegated authority). The dispute brings into play our longtime recognition that agencies have “implied de minimis authority to create even certain categorical exceptions to a statute ‘when the burdens of regulation yield a gain of trivial or no value.’ ” Public Citizen v. FTC, 869 F.2d 1541, 1556 (D.C. Cir. 1989) (quoting Alabama Power v. Costle, 636 F.2d 323, 360-61 (D.C. Cir. 1979)). Although the EPA never explicitly invokes the de minimis exception, its analysis tracks the exception’s logic. And interve-nor U.S. Poultry and Egg Association specifically pointed to the agency’s de minim-is power as a reason to uphold the Final Rule. It thus poses the question whether the record adequately supports the EPA’s conclusion that these animal-waste reports are truly “unnecessary.” 73 Fed. Reg. at 76,956/1. By contrast, the environmental petitioners’ argument, when framed in the language of Alabama Power, is essentially that the reports “provide benefits, in the sense of furthering the regulatory objectives.” 636 F.2d at 361. In light of the record, we find that those reports aren’t nearly as useless as the EPA makes them out to be. (We do not address the potential questions of whether the reports’ costs outweigh their benefits and whether the exact statutory language (discussed below) authorizes an exception for measures failing a cost/benefit analysis; the EPA makes no claim for such a reading of the statute.) We therefore grant Waterkeeper’s petition and vacate the Final Rule.

Congress has long sought to ensure that federal, state, and local authorities can adequately respond when hazardous chemicals threaten public safety or the environment. CERCLA gives federal authorities (generally the EPA) broad power to investigate and respond to actual or threatened releases of hazardous substances. See 42 U.S.C. § 9604. And since the EPA can’t respond to releases it doesn’t know about, § 103 of CERCLA requires parties to immediately notify the National Response Center (“NRC”) of any release of a hazardous substance over a threshold set by the EPA — known in regulatory speak as the “reportable quantity.” See id. § 9603; Fertilizer Institute v. EPA, 935 F.2d 1303, 1306 (D.C. Cir. 1991). The NRC, which is staffed by the U.S. Coast Guard and “acts as the single [federal] point of contact for all pollution incident reporting,” 40 C.F.R. § 300.125(a), must “convey the notification expeditiously to all appropriate Government agencies, including the Governor of any affected State,” 42 U.S.C. § 9603(a). After receiving a report from the NRC, the EPA determines if a response is appropriate. See 40 C.F.R. § 300.130(c).

EPCRA has a parallel reporting mandate, except that it requires the relevant parties to notify state and local (rather than federal) authorities whenever covered pollutants (which it refers to as “extremely hazardous substances”) are released into the environment. See 42 U.S.C. § 11004; see also Steel Co. v. Citizens for a Better Env’t, 523 U.S. 83, 86, 118 S.Ct. 1003, 140 L.Ed.2d 210 (1998).

The parties here focus on two of the hazardous substances emitted by animal waste as it decomposes — ammonia and hydrogen sulfide. (There are other such substances (e.g., nitrous oxide, methane, volatile organic compounds), see 73 Fed. Reg. at 76,950/2-3; see also National Research Council of the National Academies, Air Emissions from Animal Feeding Operations: Current Knowledge, Future Needs 50-56 (2003) (“National Research Council Report”), but we need not address them.) The EPA has classified ammonia and hydrogen sulfide as both CERCLA “hazardous substances” and EPCRA “extremely hazardous substances”; the EPA set the reportable quantity for each at 100 pounds per day. See 40 C.F.R. § 302.4(a) (CERC-LA); id. pt. 355 App. A (EPCRA). None of the parties contends that the daily emissions of commercial farms fall below that threshold.

There appears to have been no clear resolution of the best way to measure these releases, which after all do not come conveniently out of a smokestack. See National Research Council Report at 2, 99-101; Draft Air Emissions Estimating Methodologies for Animal Feeding Operations, EPA, https://www.epa.gov/afos-air/ draft-air-emissions-estimating-methodologies-animal-feeding-operations (last visited Mar. 24, 2017). The statute accommodates the problem a bit by providing for annual notice of so-called “continuous release[s],” 42 U.S.C. § 9603(f)(2), i.e., releases that are “continuous and stable in quantity and rate,” 40 C.F.R. § 302.8(a), subject to a requirement of special notification for a “statistically significant increase in the quantity ... above that previously reported,” 42 U.S.C. § 9603(f)(2), which the EPA has defined as an increase “above the upper bound of the reported normal range,” 40 C.F.R. § 302.8(b).

In December 2007, the EPA proposed exempting farms from CERCLA and EP-CRA reporting of air releases from animal waste. See CERCLA/EPRCRA Administrative Reporting Exemption for Air Releases of Hazardous Substances from Animal Waste, 72 Fed. Reg. 73,700 (proposed Dec. 28, 2007) (“Proposed Rule”). The EPA noted that it had never taken response action based on notifications of air releases from animal waste. Id. at 73,704/2. Nor could the Agency “foresee a situation where [it] would take any future response action as a result of such notifícation[s] ... because in all instances the source (animal waste) and nature (to the air over a broad area) are such that on-going releases makes an emergency response unnecessary, impractical and unlikely.” Id. The EPA specifically requested comments “on whether there might be a situation where a response would be‘ triggered by such a notification of the release of hazardous substances to the air from animal waste at farms, and if so, what an appropriate response would be.” Id. at 73,704/3-73,705/1.

The EPA finalized that proposed exemption on December 18, 2008. 73 Fed. Reg. at 76,948. So far as CERCLA authority is concerned, the Final Rule (like the Proposed Rule) exempts all farms from reporting air releases from animal waste. None of the public comments changed the EPA’s view that those reports “are unnecessary because, in most cases, a federal response is impractical and unlikely (ie., [the EPA] would not respond to them since there is no reasonable approach for the response).” Id. at 76,956/1. But public comments seeking information about emissions from the largest farms (so-called CA-FOs), led the EPA to carve CAFOs out of its EPCRA exemption. Id. at 76,952/3-76,-953/1. (A CAFO is a farm that “stables or confines” more than a certain (relatively large) number of animals — for example, more than 1,000 cattle, 10,000 sheep, or 55,000 turkeys. Id. at 76,959-60.) The Final Rule thus requires CAFOs to continue reporting air emissions under EPCRA, but not under CERCLA; other farms are exempt from both.

Environmental and agricultural groups challenged the Final Rule. The environmentalists — the Waterkeeper Alliance, the Sierra Club, the Humane Society of the United States, the Environmental Integrity Project, and the Center for Food Safety (for ease of reference we’ll call them “Wat-erkeeper”) — principally argue that CERC-LA and EPCRA don’t permit the EPA to grant reporting exemptions, but instead require reports of any and all releases over the reportable quantity. The Final Rule is, in Waterkeeper’s view, arbitrary to boot because it treats air releases from animal waste at farms more favorably than those from other sources (like a leaky ammonia tank) or other locations (like animal waste at zoos, circuses or slaughterhouses). The National Pork Producers Council, on the other hand, argues that the Final Rule’s CAFO carve-out can’t stand because it was based on a factor, the public’s desire for information, which the Council argues is irrelevant to the statutory purpose of facilitating emergency response. See, e.g., Motor Vehicle Mfrs. Ass’n v. State Farm Mut. Auto. Ins. Co., 463 U.S. 29, 43, 103 S.Ct. 2856, 77 L.Ed.2d 443 (1983).

We start with a jurisdictional issue posed by the two statutes’ unusual relationship. Absent a specific statutory provision assigning review to the court of appeals, a challenge to agency action must go first to district court. See Int’l Brotherhood of Teamsters v. Peña, 17 F.3d 1478, 1481 (D.C. Cir. 1994). But in CERCLA Congress gave this court direct (and exclusive) jurisdiction over CERCLA rules. See 42 U.S.C. § 9613(a). Thus the congressional allocation of jurisdiction is no bar to our hearing the CERCLA-based challenges to the Final Rule.

The Final Rule, however, wasn’t limited to CERCLA; it relied on EPCRA too. EPCRA has no judicial review provision and therefore challenges under it must ordinarily be brought in district court. See Barrick Goldstrike Mines, Inc. v. Browner, 215 F.3d 45, 47 (D.C. Cir. 2000). But where, as here, a single agency action relies on multiple statutory bases, it would be a wasteful exaltation of form over substance to require piecemeal challenges in various courts. We thus commonly examine the entire agency action in a “comprehensive and coherent fashion” so long as at least one of the statutes provides for our direct review. Shell Oil Co. v. FERC, 47 F.3d 1186, 1195 (D.C. Cir. 1995); contra Loan Syndications & Trading Ass’n v. SEC, 818 F.3d 716, 723 (D.C. Cir. 2016) (finding we lacked jurisdiction where the statute providing essential authority, as acknowledged by the parties, did not provide for direct appellate review). Since CERCLA does precisely that, jurisdiction doesn’t seem a problem.

Hold your horses, responds the EPA. It argues that while of course we could hear a consolidated CERCLA/EPCRA challenge, Waterkeeper lacks standing to challenge the CERCLA portions of the Final Rule because while both statutes require reporting, CERCLA (unlike EPCRA) has no requirement of disclosure. Thus, in the EPA’s view, the CERCLA portion of the rule inflicts no informational injury on Waterkeeper. We disagree.

A plaintiff suffers an “injury in fact” when agency action cuts him off from “information which must be publicly disclosed pursuant to a statute.” FEC v. Akins, 524 U.S. 11, 21, 118 S.Ct. 1777, 141 L.Ed.2d 10 (1998). Given the longstanding rule that for standing purposes we assume the merits in favor of the plaintiff, Parker v. District of Columbia, 478 F.3d 370, 377 (D.C. Cir. 2007), the upshot of Akins is that the plaintiff must assert “a view of the law under which the defendant (or an entity it regulates) is obligated to disclose certain information that the plaintiff has a right to obtain,” Am. Soc. for Prevention of Cruelty to Animals v. Feld Entertainment, Inc., 659 F.3d 13, 22-23 (D.C. Cir. 2011). On this line of analysis, the question is whether a reporting mandate under CERCLA triggers a requirement of public disclosure. If so, exempting a release from the mandate extinguishes the corresponding disclosure.

Because CERCLA itself doesn’t require disclosure, the EPA argues there can’t be an injury. But due to the complex interplay between CERCLA and EPCRA, the EPA’s allegedly unlawful CERCLA exemption reduces the information, that must be publicly disclosed under EPCRA. As a result Waterkeeper (and others) who previously sought that information no longer have a statutory right to access it. For the purpose of standing, that’s injury enough.

In drafting the EPCRA reporting requirements, Congress expressly tied them to CERCLA’s. Repeatedly referring back to CERCLA, Congress set two of the three notification provisions in its new state-targeted measure (EPCRA) to require reports whenever the “release [also] requires a notification under section 103(a) of CERCLA,” 42 U.S.C. §§ 11004(a)(1), (a)(3). In other words, a release that triggers the CERCLA duty also automatically trips the EPCRA reporting requirements in subsections (1) and (3) of § 11004(a). And under subsection (2), the remaining notice provision, even a release that “is not subject to the notification requirements under section 103(a) of CERCLA” requires EPCRA reporting when it “occurs in a manner which would require notification under section 103(a) of CERCLA.” Id. § 11004(a)(2). Thus all of EPCRA’s reporting mandates are piggybacked on the CERCLA mandates in one form or another. And once EPCRA reporting is required, EPCRA goes on to mandate that the information from those reports be disclosed to the general public. See 42 U.S.C. § 11044(a); see also Ctr. for Biological Di versity, Inc. v. BP Am. Production Co., 704 F.3d 413, 429 (5th Cir. 2013). (Of course § 11044(a) only requires disclosure of EPCRA “followup emergency notice[s],” but that’s a meaningless technicality since § 11004(c) requires those “followup emergency notiee[s]” to “set[ ] forth” the information from the initial notices that preceded them.) Though slightly roundabout, a CERCLA reporting mandate does, in fact, trigger a public disclosure requirement.

The Final Rule, by cutting back on CERCLA reporting requirements, had the automatic effect of cutting back on EP-CRA reporting and disclosure requirements. It thus deprives Waterkeeper of information, the public disclosure of which would otherwise be required by EPCRA. Because we find informational standing exists on this basis, we need not reach Wat-erkeeper’s remaining theories of injury and instead proceed to the merits.

We review the Final Rule for reasonableness under the familiar standard of Chevron, USA, Inc. v. NRDC, Inc., 467 U.S. 837, 104 S.Ct. 2778, 81 L.Ed.2d 694 (1984), “which ... means (within its domain) that a ‘reasonable agency interpretation prevails.’ ” Northern Natural Gas Co. v. FERC, 700 F.3d 11, 14 (D.C. Cir. 2012) (quoting Entergy Corp. v. Riverkeeper, Inc., 556 U.S. 208, 218 n. 4, 129 S.Ct. 1498, 173 L.Ed.2d 369 (2009)). Of course, “if Congress has directly spoken to an issue then any agency interpretation contradicting what Congress has said would be unreasonable.” Entergy, 556 U.S. at 218 n.4, 129 S.Ct. 1498.

Rather than identifying particular text that’s ambiguous, the EPA points to provisions setting forth unrelated exemptions and ones giving the EPA authority to set reportable quantities. It says that these “collectively create ambiguity” as to whether the EPA can create new exemptions like those in the Final Rule. Resp’t Br. at 34. That conclusion doesn’t follow from the premise. Consider the statutory exemptions that the EPA relies upon. No report is required for releases of engine exhaust, certain nuclear material, the normal application of fertilizer, or those that expose persons solely within a workplace (i.e., those that don’t escape into the broader environment). 42 U.S.C. § 9601(22). CERCLA similarly exempts from reporting the application of federally-registered pesticides, releases authorized under a federal environmental statute or ones that are already reported to the NRC under the Solid Waste Disposal Act. Id. §§ 9603(a), (e), (f)(1). And as we saw earlier it adjusts the reporting requirements for so-called “continuous release[s],” id. § 9603(f)(2), i.e., those releases that are “continuous and stable in quantity and rate,” 40 C.F.R. § 302.8(a).

To be sure, the fact that Congress thought to write certain exceptions into the statutes doesn’t necessarily mean it meant to bar all others. The canon of expressio unius est exclusio alterius is “an especially feeble helper in an administrative setting, where Congress is presumed to have left to reasonable agency discretion questions that it has not directly resolved.” Cheney R. Co. v. ICC, 902 F.2d 66, 69 (D.C. Cir. 1990). Had Congress done nothing more than place certain exemptions in these statutes we might have reasonably concluded that the EPA had discretion to fashion other exemptions consistent with the statutory purposes. Indeed we did precisely that in Texas Rural Legal Aid, Inc. v. Legal Services Corp., where we held that statutory provisions barring an agency from supporting certain types of litigation (school desegregation and abortion) didn’t preclude the agency from creating an additional bar precluding redistricting litigation. 940 F.2d 685, 694 (D.C. Cir. 1991). But here Congress paired those specific exemptions with a sweeping reporting mandate. It made clear that the statutes require notification of “any release ... of a hazardous substance ... in quantities equal to or greater than” the reportable quantities authorized under § 9602. 42 U.S.C. § 9603(a) (emphasis added) (CERCLA); see also id. §§ 11004(a)(1), (a)(3) (EPCRA report required when release requires notice under CERCLA). Read together those statutory provisions set forth a straightforward reporting requirement for any non-exempt release (over the reportable quantity). See New York v. EPA, 443 F.3d 880, 885 (D.C. Cir. 2006). Conspicuously missing is any language of delegation, such as that reports be “as appropriate,” “effective,” “economical,” or made “under circumstances to be determined by the EPA.”

That brings us to the next set of provisions — permitting the EPA to set reportable quantities and adopt necessary regulations. Admittedly Congress gave the EPA broad authority to designate additional hazardous substances and establish reportable quantities. See 42 U.S.C. § 9602(a) (CERCLA); see also id. § 11002(a) (similar authority under EPCRA). And both statutes provide the EPA with general rulemaking authority “to promulgate any regulations necessary to carry out the[ir] provisions.” Id. § 9615 (CERCLA); see also id. § 11048 (EPCRA). But those general grants of rulemaking authority don’t tell us much about whether the specific rule in question passes muster.

While none of those provisions even hints at the type of reporting exemption the EPA adopted in the Final Rule, the EPA extracts from them a notion that Congress meant to “avoid[ ] duplication of effort ... and minimiz[e] the burden on both regulated entities and government response agencies.” Resp’t Br. at 33. Perhaps. But as we’ve long made clear, “[a]gencies are ... ‘bound, not only by the ultimate purposes Congress has selected, but by the means it has deemed appropriate, and prescribed, for the pursuit of those purposes.’ ” Colorado River Indian Tribes v. Nat’l Indian Gaming Comm’n, 466 F.3d 134,139-40 (D.C. Cir. 2006) (quoting MCI Telecomms. Corp. v. AT&T, 512 U.S. 218, 231 n.4, 114 S.Ct. 2223, 129 L.Ed.2d 182 (1994)). We have no doubt that a desire for efficiency motivated some of the exceptions Congress provided, but those concerns don’t give the agency carte blanche to ignore the statute whenever it decides the reporting requirements aren’t worth the trouble. See Util. Air Regulatory Grp. v. EPA, — U.S. -, 134 S.Ct. 2427, 2446, 189 L.Ed.2d 372 (2014) (“[A]n agency may not rewrite clear statutory terms to suit its own sense of how the statute should operate.”).

Agencies are not, however, “helpless slaves to literalism.” Public Citizen v. Young, 831 F.2d 1108, 1112 (D.C. Cir. 1987). The de minimis doctrine is an expression of courts’ reluctance “to apply the literal terms of a statute to mandate pointless expenditures of effort,” and is thus a “cousin” of the doctrine permitting courts to avoid absurd results in the face of a statute’s seemingly plain meaning. Alabama Power, 636 F.2d at 360 & n.89. But that de minimis power is strictly limited; an agency can’t use it to create an exception where application of the literal terms would “provide benefits, in the sense of furthering the regulatory objectives, but the agency concludes that the acknowledged benefits are exceeded by the costs.” Id. at 360-61.

The EPA purported to find an absence of regulatory benefit. It asserted that the animal-waste “reports are unnecessary because, in most cases, a federal response is impractical and unlikely.” 73 Fed. Reg. at 76.956/1 (emphasis added). The qualification suggests that at least some circumstances would call for a response. Other portions of the Final Rule, however, seem to reject that notion and instead state simply that the EPA could “not foresee a situation where the Agency would initiate a response action as a result of such notification.” Id. at 76,953/2.

But commenters in the rulemaking claimed to foresee just such situations. They put before the EPA a good deal of information, not refuted by the EPA, suggesting scenarios where the reports could be quite helpful in fulfilling the statutes’ goals. Specifically, commenters explained that “when [manure] pits are agitated for pumping,” hydrogen sulfide, methane, and ammonia “are rapidly released from the manure and may reach toxic levels or displace oxygen, increasing the risk to humans and livestock.” 73 Fed. Reg. at 76,-957/2; see also Manure Gas Dangers, Fakm Safety Ass’n, http://nasdonline.org/ static_content/documents/48/d001616.pdf (last visited Mar. 24, 2017). That risk isn’t just theoretical; people have become seriously ill and even died as a result of pit agitation. See K.J. Donham, Community & Occupational Health Concerns in Pork Production: A Review, 88 J. Anim. Sci. 102, 107 (2010), available at https://www. animalseiencepublications.org/publications/ jas/pdfs/88/13/E102 (cited by Amici Br. at 12 & n.55). (One might reasonably then ask why bother agitating at all. The answer — at least according to the EPA — is that it’s necessary to maintain storage in liquid manure storage systems. See NPDES Permit Writers’ Manual for Concentrated Animal Feeding Operations 5-15, EPA (Feb. 2012), https://www.epa.gov/ sites/production/files/201510/documents/ cafo_permitmanual_entire.pdf.) The EPA didn’t dispute that “various pit pumping techniques may cause emissions to exceed reportable quantities” (truly an understatement), but dismissed the comments by simply noting “it is unclear what response the commenter had in mind.” Joint App’x at 626. The Final Rule added that “based on the EPA’s experience, the Agency would rarely respond to such scenarios.” 73 Fed. Reg. at 76,957/3 (emphasis added). Although we (like the EPA) don’t know what particular response the commenter had in mind, the EPA suggested at oral argument that one option might be requiring “some sort of change in the farm’s ... waste management system [to] eliminate the risk.” Oral Arg. Tr. at 32:13-14. That hardly sounds “impractical.” And as we’ll see in a minute, such responses appear to be within the EPA’s remedial powers.

Commenters also pointed to the role of information in enabling responses by local officials. The National Association of Clean Air Agencies (“Clean Air Agencies”) (which represents hundreds of air pollution control agencies) submitted Congressional testimony from an Iowa regulator saying that the Final Rule “prevent[s] local, state and federal emergency responders from having critical information about potentially dangerous releases” and limits the ability of federal or state authorities to take action through “investigations or cleanup[s]” or “issuing abatement orders.” Human Health, Water Quality, and Other Impacts of the Confined Animal Feeding Operation Industry: Hearing Before the S. Env’t & Pub. Works Comm., 110th Cong. 1 (2007) (statement of Catharine Fitzsim-mons, Chief of the Air Quality Bureau of the Iowa Dep’t of Natural Resources). Likewise, the National Association of SARA Title III Program Officials (“SARA Title III Officials”) (which is made up of members of local and state emergency planning commissions) discussed how emergency commissions could use those reports when responding to citizen complaints or genuine emergencies. It explained:

The 911 call that comes in from a member of the public in the dark of night reporting a foul or chemical odor rarely contains information on the source. The responders are forced to guess at that source as they ga[u]ge their response. “Immediate” release reporting by facilities under EPCRA provides crucial information to those responders. Without such information responders are forced to blindly drive through an area not knowing what they are looking for — is it a vehicle accident, a facility release or something worse will be the question in their minds.

Comment Letter from Timothy R. Gable-house, Pres., Nat’l Ass’n of SARA Title III Program Officials, to Superfund Docket, U.S. EPA at 2 (Mar. 27, 2008). Then-Oklahoma Attorney General Drew Edmondson also invoked the benefits of alerting local agencies. Comment Letter from W.A. Drew Edmondson, Okla. Att’y Gen., to Superfund Docket, U.S. EPA at 3 (Mar. 27, 2008).

Whatever the EPA’s past experience in responding to mandated information may have been, it plainly has broad authority to respond. CERCLA authorizes both removal and remedial actions. See 42 U.S.C. § 9604(a)(1); see also Montrose Chem. Corp. of California v. EPA, 132 F.3d 90, 92 n.3 (D.C. Cir. 1998). “Removal” includes both cleanup of hazardous substances from the environment and broad authority to institute monitoring, investigative and preventative activities designed to evaluate and minimize the impact of possible releases. See 42 U.S.C. §§ 9601(23), 9604(b)(1) (authorizing “investigations, monitoring, surveys, testing, and other information gathering”). “Remedial actions” are ones designed to permanently prevent or minimize the risk of a release. See id. § 9601(24). They can range from enormously invasive measures (like permanently relocating residents) to relatively minor ones (like digging protective trenches or requiring covers). See id.

Thus the comments undermine the EPA’s primary justification for the Final Rule — namely, that notifications of animal-waste-related releases serve no regulatory purpose because it would be “impractical or unlikely” to respond to such a release. 73 Fed. Reg. at 76,950/1. It’s not at all clear why it would be impractical for the EPA to investigate or issue abatement orders (as suggested by the Clean Air Agencies) in cases where pumping techniques or other actions lead to toxic levels of hazardous substances such as hydrogen sulfide. And the SARA Title III Officials provide at least one way that local or state authorities might use the CERCLA release reports — to narrow an investigation when they get a phone call reporting a suspicious smell or similarly vague news of possibly hazardous leaks.

The record therefore suggests the potentiality of some real benefits. Of course it’s possible that these are outweighed by the costs, which the EPA estimates as substantial. See 73 Fed. Reg. at 76,958/1 (estimating that, over ten years, the Final Rule would'save farms more than a million hours and more than $60 million in compliance costs and cut out roughly 160,000 hours and $8 million in government costs related to those reports). But as we have noted, such facts (assuming their correctness) are not enough to support application of the de minimis exception.

Because the EPA’s action here can’t be justified either as a reasonable interpretation of any statutory ambiguity or implementation of a de minimis exception, we grant Waterkeeper’s petition and vacate the Final Rule. That necessarily moots Pork Producers’ challenge to the CAFO carve-out; we therefore dismiss their petition.

So ordered.

BROWN, Circuit Judge,

concurring:

I join in the Panel Opinion because “the Final Rule ran afoul of the underlying statutes (and was therefore outside the EPA’s delegated authority).” Op. 530. To reach this result, the court dances around the familiar Chevron two-step with the following formulation: “Of course, ‘if Congress has directly spoken to an issue then any agency interpretation contradicting what Congress has said would be unreasonable.’ ” Op. 534 (quoting Entergy Corp. v. Riverkeeper, Inc., 556 U.S. 208, 218 n.4, 129 S.Ct. 1498, 173 L.Ed.2d 369 (2009)). I assume this reasoning casts no aspersions on the first step of Chevron. But see United States v. Home Concrete & Supply, LLC, 566 U.S. 478, 132 S.Ct. 1836, 1846 n.1, 182 L.Ed.2d 746 (2012) (Scalia, J., concurring in part and concurring in the judgment).

Entergy Corp. merely establishes an agency’s unreasonable statutory interpretation is outside the scope of any statutory ambiguity. The decision does not comment on the situation in which a court might find an agency’s interpretation reasonable without satisfying Chevron Step One, i.e., without a judicial determination that the “traditional tools” of interpretation identify a statutory ambiguity that, in turn, authorizes agency action on the “precise question at issue.” Chevron, U.S.A., Inc. v. Natural Res. Def. Council, Inc., 467 U.S. 837, 842, 843 n.9, 104 S.Ct. 2778, 81 L.Ed.2d 694 (1984).

This case extends no further than what Entergy Corp. established. As the Panel acknowledges, EPA set forth no statutory ambiguity authorizing its Final Rule. Op. 534. Under Step One, this ends the matter. See, e.g., La. Pub. Serv. Comm’n v. FCC, 476 U.S. 355, 374, 106 S.Ct. 1890, 90 L.Ed.2d 369 (1986) (holding “an agency literally has no power to act ... unless and until Congress confers power upon it”). Step One would decompose if EPA’s premise here were accepted: An agency can take “unrelated” statutory provisions that, in its view, “collectively create ambiguity,” and command deference because a court finds the agency’s interpretation “reasonable” at Step Two. See Op. 534.

Chevron’s “reasonableness” inquiry could (and should) be governed by statutory text, but Step Two jurisprudence reveals statutory text need not play much of a role at all — let alone a dispositive one. See, e.g., Stephen G. Breyer, et al., Administrative Law and Regulatory Policy: Problems, Text, and Cases 359 (7th ed. 2011) (“The weight of scholarly opinion endorses an equation of step two with arbitrary and capricious review.” Such review is “not an inquiry into congressional instructions, but an assessment of whether the agency’s decision is reasonable on the merits and not, in the [Supreme] Court’s words, arbitrary or capricious in substance.”). This is why Step One is so critical. For all its potential for manipulation, it is Chevron Step One where “[t]he court’s task is to fix the boundaries of delegated authority, an inquiry that includes defining the range of permissible criteria.... [T]he judicial role is to specify what the statute cannot mean, and some of what it must mean,, but not all that it does mean.” Henry P. Monaghan, Marbury and the Administrative State, 83 Colum. L. Rev. 1, 27-28 (1983); see also Gerald L. Neuman, Law Review Articles that Backfire, 21 U. Mich. J.L. Reform 697, 711-12 (1988) (“Mona-ghan’s thesis reappeared, without citation, as the core of Justice Stevens’s new approach to statutory interpretation in [Chevron].”).

Truncating the Chevron two-step into a one-step “reasonableness” inquiry lets the judiciary leave its statutory escort to blow on an agency’s dice. “It isn’t fair. It isn’t nice.” Frank Sinatra, Luck Be A Lady, on Sinatra ’65: The Singer Today (Reprise Records 1965). In fact, some advocates of a one-step reasonableness approach appeal to the judiciary’s fear of commitment— promising that courts can avoid “ascertain[ing] whether the statute has a single, clear meaning before deciding whether the agency’s interpretation is reasonable.” See Matthew C. Stephenson & Adrian Vermeule, Chevron Has Only One Step, 95 Va. L. Rev. 597, 605 (2009). Congress is out of the picture altogether. When all that matters is aligning judicial and administrative views of reasonableness, and reasonableness at Step Two need not be primarily or solely determined by the “traditional tools” of statutory interpretation, there is no incentive to petition the legislature for statutory clarity. Agencies are free to experiment with various interpretations, and courts are free to avoid determining the meaning of statutes. See Kenneth A. Bamberger & Peter L. Strauss, Chevron’s Two Steps, 95 Va. L. Rev. 611, 618-19 (2009).

An Article III renaissance is emerging against the judicial abdication performed in Chevron’s name. If a court could purport fealty to Chevron while subjugating statutory clarity to agency “reasonableness,” textualism will be trivialized. “For whatever the agency may be doing under Chevron, the problem remains that courts are not fulfilling their duty to interpret the law.” Gutierrez-Brizuela v. Lynch, 834 F.3d 1142, 1152-53 (10th Cir. 2016) (Gorsuch, J., concurring).

I join in the Panel Opinion because it does not extend to the situation in which an agency’s statutory interpretation is found to be “reasonable” without a court first determining the statutory bounds of agency authority. But if Chevron’s two-step inquiry can be collapsed into one “reasonableness” inquiry no different than current Step Two jurisprudence, there is yet another reason to question Chevron’s consistency with “the judicial department's]” “emphatic[ ]” “province and duty ... to say what the law is.” Marbury v. Madison, 5 U.S. (1 Cranch) 137, 177, 2 L.Ed. 60 (1803).