          United States Court of Appeals
                     For the First Circuit

No. 14-2139

                CASTILLO CONDOMINIUM ASSOCIATION,

                           Petitioner,

                               v.

    UNITED STATES DEPARTMENT OF HOUSING AND URBAN DEVELOPMENT,
   OFFICE OF THE SECRETARY, ON BEHALF OF CARLO GIMÉNEZ BIANCO,

                           Respondent.

                      ____________________

           PETITION FOR REVIEW OF A FINAL ORDER OF THE
          SECRETARY OF THE UNITED STATES DEPARTMENT OF
                  HOUSING AND URBAN DEVELOPMENT


No. 15-1223

    UNITED STATES DEPARTMENT OF HOUSING AND URBAN DEVELOPMENT,
   OFFICE OF THE SECRETARY, ON BEHALF OF CARLO GIMÉNEZ BIANCO,

                           Petitioner,

                               v.

                CASTILLO CONDOMINIUM ASSOCIATION,

                           Respondent.
                      ____________________

     CROSS-PETITION FOR ENFORCEMENT OF A FINAL ORDER OF THE
          SECRETARY OF THE UNITED STATES DEPARTMENT OF
                  HOUSING AND URBAN DEVELOPMENT
                             Before

                      Howard, Chief Judge,
              Torruella and Selya, Circuit Judges.


     Sigfredo A. Irizarry-Semidei for Castillo Condominium
Association.
     Christopher   Chen-Hsin   Wang,  Attorney,   United   States
Department of Justice, Civil Rights Division, with whom Vanita
Gupta, Principal Deputy Assistant Attorney General, and Sharon M.
McGowan, Attorney, were on brief, for Secretary of the United
States Department of Housing and Urban Development.


                           May 2, 2016
                SELYA, Circuit Judge.          This case involves a man, his

dog, and a condominium association's "no pets" rule.                   Like so many

cases,     it    turns    chiefly   on   the     standard    of    review.    After

delineating that standard (a matter of first impression in this

circuit), inspecting the record through that lens, and applying

the applicable law, we deny the condominium association's petition

for judicial review of a final order of the Secretary of the United

States Department of Housing and Urban Development (HUD).                       We

simultaneously           grant   the     Secretary's         cross-petition     for

enforcement of his order.

I.   THE STATUTORY SCHEME

                This case rests on a statutory foundation: the Fair

Housing Act (the Act), 42 U.S.C. §§ 3601-3619.                    As relevant here,

the Act proscribes discrimination in housing and housing-related

matters based on a person's disability.1             See id. § 3604(f).       Under

the Act, a cognizable disability is "(1) a physical or mental

impairment which substantially limits one or more of [a] person's

major life activities, (2) a record of having such an impairment,

or   (3)   being     regarded    as    having    such   an    impairment."      Id.

§ 3602(h).




     1Although the Act uses the term "[h]andicap" rather than
"disability," see 42 U.S.C. § 3602(h), we follow the parties' lead
and employ the term "disability" throughout.


                                         - 3 -
               Pertinently,        the     Act      outlaws        discrimination         in

connection with the terms, conditions, or privileges of housing.

See id. § 3604(f)(2). Discrimination includes, among other things,

the "refusal to make reasonable accommodations in rules, policies,

practices, or services, when such accommodations may be necessary

to    afford    such   person      equal    opportunity       to    use    and    enjoy   a

dwelling."      Id. § 3604(f)(3)(B).

II.    PRIOR PROCEEDINGS

               In   2010,    the    Castillo       Condominium      Association      (the

Association)        learned    that      Carlo     Giménez    Bianco      (Giménez),      a

condominium resident, was keeping a dog on the premises and warned

him by letter that it would fine him unless he removed the dog

from his unit.         In response, Giménez, an individual who suffers

from    anxiety     and     depression,      promptly     advised         the    board    of

directors, in writing, that he planned to keep his emotional

support dog in his condominium unit and that he was entitled to do

so under federal law.              Although Giménez accompanied this letter

with a note from his treating psychiatrist, the Association did

not relax its "no pets" bylaw.                As a result of the conflict (as

the Secretary found), Giménez was eventually forced to vacate and

sell the unit that had been his home for some 15 years.

               Giménez lodged a complaint of disability discrimination

with HUD.      Following an investigation and an agency determination

of reasonable cause, HUD filed a charge of discrimination against


                                           - 4 -
the Association.2       See id. § 3610(a)(1)(B)(iv), (g)(1)-(2).                The

charge alleged that the Association had unlawfully discriminated

against Giménez, a disabled person, by denying him a reasonable

accommodation and thus making housing unavailable to him.                 See id.

§ 3604(f)(1), (f)(2), and (f)(3)(B).

           A     four-day     evidentiary      hearing      ensued     before     an

administrative      law     judge     (ALJ).         Giménez,    his     treating

psychiatrist (Dr. Pedro Fernández), and his primary-care physician

(Dr. Roberto Unda Gómez) all testified that Giménez suffered from

a disability — an anxiety disorder and chronic depression — and

that his symptoms were ameliorated by the presence of an emotional

support dog.       The Association presented both lay and expert

evidence in opposition.             On July 17, 2014, the ALJ issued a

recommended    decision     concluding    that   the     Association     had    not

violated   the    Act   because     Giménez    had   failed     to   prove   by   a

preponderance of the evidence that he had a mental impairment

warranting a reasonable accommodation in the form of a companion

animal.

           Under    the     regulatory   regime,      the   ALJ's    recommended

decision could be appealed to the Secretary.                See id. § 3612(h).




     2 The charge originally named Carlos Toro Vizcarrondo, the
president of the Association's board of directors, as a co-
respondent.   Because the Association is the only party against
which relief has been ordered, we treat the matter as if the
Association has been the sole respondent all along.


                                      - 5 -
That happened here.       On further review, the Secretary set aside

the ALJ's recommended decision.          The Secretary explained that the

ALJ had erred both in discounting Giménez's testimony about his

lengthy history of anxiety and depression and in declining to

credit the testimony of Dr. Fernández and Dr. Unda.                   In the end,

the   Secretary   found   that   Giménez     suffered     from    a    cognizable

disability, that the Association knew or should have known that

Giménez had such a disability, that Giménez had informed the

Association of his need for a reasonable accommodation in the form

of an emotional support dog, that the Association had improvidently

denied the accommodation, and that the Association had failed to

engage in the required interactive process.3

           Having found the Association liable for discrimination,

the   Secretary   remanded   the    case    to     the   ALJ   for    an    initial

determination     of   damages     and     civil     penalties.            See   id.

§ 3612(g)(3); 24 C.F.R. § 180.675(a), (b)(3).              In due course, the

ALJ issued another recommended decision; this decision proposed to

award Giménez $3,000 in emotional distress damages and to assess

a $2,000 civil penalty against the Association.                  The ALJ noted,




      3
      The HUD guidelines contemplate that parties will engage in
an interactive process to discuss the need for a requested
accommodation and possible alternatives when the housing provider
refuses to grant that accommodation on the ground that it is not
reasonable. See, e.g., Astralis Condo. Ass'n v. Sec'y of HUD, 620
F.3d 62, 68 & n.3 (1st Cir. 2010); Jankowski Lee & Assocs. v.
Cisneros, 91 F.3d 891, 895 (7th Cir. 1996).


                                   - 6 -
inter    alia,    that   since   the    Association's     culpable    acts   and

omissions apparently "were fueled by ignorance of the law," those

acts and omissions did not amount to "willful, malicious conduct

that demands a maximum penalty." Additionally, the ALJ recommended

ancillary    relief,     including      fair   housing    training    for    the

Association's officers and the implementation by the Association

of a reasonable accommodation policy.

            This second recommended decision met the same fate as

the first: it inspired another petition for Secretarial review.

The Secretary concluded that the ALJ had undervalued the emotional

distress that Giménez had experienced and, therefore, increased

the proposed award of emotional distress damages to $20,000.

Similarly, the Secretary concluded that the ALJ had underestimated

the     Association's     blameworthiness         for   its    "egregious    and

intentional" conduct.       Unlike the ALJ, the Secretary counted the

Association's ignorance of the law as an aggravating factor, not

a mitigating factor, and upped the civil penalty to $16,000 (the

maximum    available     penalty   amount).         Finally,    the   Secretary

reworked    and   strengthened     the    ALJ's    proposals    for   ancillary

relief.

            Displeased by virtually every aspect of the Secretary's

final order, the Association filed a timely petition for judicial

review.     See 42 U.S.C. § 3612(i)(1).           The Secretary countered by




                                       - 7 -
cross-petitioning for enforcement of his order.        We consolidated

these petitions for briefing and oral argument.

III.   STANDARD OF REVIEW

           Under   the   Administrative   Procedure     Act    (APA),   a

reviewing court may set aside a final agency order if it is

"arbitrary, capricious, an abuse of discretion, or otherwise not

in accordance with law."    5 U.S.C. § 706(2)(A).     In line with this

statutory imperative, a reviewing court is bound by an agency's

factual findings "as long as they are supported by substantial

evidence in the record as a whole." Astralis Condo. Ass'n v. Sec'y

of HUD, 620 F.3d 62, 66 (1st Cir. 2010).

           "Substantial evidence 'is more than a mere scintilla.

It means such relevant evidence as a reasonable mind might accept

as adequate to support a conclusion.'"       Id. (quoting Universal

Camera Corp. v. NLRB, 340 U.S. 474, 477 (1951)).              Of course,

substantial evidence does not mean either uncontradicted evidence

or overwhelming evidence.    Rather, this benchmark may be met "even

if the record arguably could justify a different conclusion."

Rodriguez Pagan v. Sec'y of HHS, 819 F.2d 1, 3 (1st Cir. 1987)

(per curiam); see also Felisky v. Bowen, 35 F.3d 1027, 1035 (6th

Cir. 1994) ("The Secretary's findings are not subject to reversal

merely because substantial evidence exists in the record to support

a different conclusion.").




                                - 8 -
              This familiar standard has a twist, however, in cases in

which the hearing officer and the ultimate decisionmaker have

differing views of the material facts.             This case is emblematic of

such a situation: though the ALJ was the initial decisionmaker and

the one who actually saw and heard the witnesses, the Secretary is

the ultimate decisionmaker.        As such, the Secretary is empowered

to "affirm, modify or set aside, in whole or in part, the initial

decision, or remand the initial decision for further proceedings."

24   C.F.R.    §   180.675(a);   see    42     U.S.C.   §   3612(h),   24    C.F.R.

§    180.675(b).       But   common      sense     suggests    that,    in    such

circumstances, some weight should be given to the ALJ's factual

findings.

              Although this court has not had occasion to speak to the

ramifications of such a paradigm, the case law elsewhere indicates

that a more granular level of scrutiny should apply.                    We agree

that such a nuanced approach is desirable — and we adopt it.

              We hold that where, as here, the Secretary rejects the

factual findings of an ALJ, a reviewing court must first make

certain that the Secretary has adequately articulated his reasons

for overturning the ALJ's findings.              See Aylett v. Sec'y of HUD,

54 F.3d 1560, 1561, 1567 (10th Cir. 1995).                  The court must then

proceed to ask whether those articulated reasons derive adequate

support from the administrative record. See id. at 1561. Although

this heightened level of scrutiny does not alter the substantial


                                       - 9 -
evidence standard of review in any fundamental respect, it requires

us to apply that standard with special rigor, particularly with

regard to credibility determinations.                 See Garcia v. Sec'y of

Labor, 10 F.3d 276, 280 (5th Cir. 1993); see also Earle Indus.,

Inc. v. NLRB, 75 F.3d 400, 404 (8th Cir. 1996) (noting that a

reviewing       court    "examine[s]     the     [Secretary's]    findings      more

critically" when the Secretary and ALJ disagree).                 It is with this

nuanced       standard    of   review    in    mind   that   we    turn    to    the

Association's asseverational array.

IV.       DISCUSSION

               We divide our analysis into three segments.                First, we

confront the Association's claims that the Secretary's final order

is not supported by substantial evidence in the record.                     Second,

we explore the Association's assertion that the charging party's

complaint is barred by res judicata.                   Third, we address the

Association's plaint that the Secretary's final order is tainted

by procedural error.4

                                A.     The Merits.

               This case is fact-intensive, and it would serve no useful

purpose for us to chronicle every piece of evidence.                 For present

purposes, it suffices to say that we have examined the record with


      4
      We note that the Association has advanced a host of other
contentions (including contentions as to the amount of damages and
the size of the penalty imposed). Having examined all of these
contentions, we reject them out of hand.


                                        - 10 -
care and have given especially exacting scrutiny to the issue of

disability (the principal issue on which the Secretary and the ALJ

diverged).

                The   Secretary's      decision   ultimately     rests    on    his

determination that the Association violated the Act.                    Though the

proof is conflicted at several points, we conclude that substantial

evidence supports the Secretary's finding that the Association's

refusal to allow Giménez to keep an emotional support dog in his

condominium unit as a reasonable accommodation for his disability

was unlawful.         That refusal made Giménez's home unavailable to him

as a practical matter and, thus, violated the Act.                See 42 U.S.C.

§ 3604(f)(1).          So, too, we conclude that substantial evidence

supports the Secretary's finding that the Association's failure to

provide     a    reasonable      accommodation    constituted    discrimination

against Giménez in the terms and conditions of housing due to his

disability and, thus, violated yet another provision of the Act.

See id. § 3604(f)(2).            We explain briefly.

                To make out a prima facie case for failure to provide a

reasonable accommodation, the charging party (here, Giménez) had

to   show   that      he   was    a   person   with   a   disability,    that   the

Association knew or should have known that he was a person with a

disability, that his emotional support dog was reasonable and

necessary to afford him an equal opportunity to use and enjoy his

dwelling, and that the Association nonetheless refused to provide


                                        - 11 -
a reasonable accommodation.      See Astralis Condo. Ass'n, 620 F.3d

at 67.   Here, ample evidence demonstrates these four key showings.

First, Giménez's own testimony, substantiated by the testimony of

Dr. Fernández and Dr. Unda, warranted a finding that Giménez, who

suffered from anxiety and chronic depression, was a person with a

disability within the purview of the Act.       Second, the evidence is

virtually incontrovertible that the Association knew (or at least

had notice) that Giménez suffered from a disability.                Third,

substantial evidence supports a finding that Giménez told the

Association that he would need a reasonable accommodation (an

exception to the "no pets" bylaw so that he could keep a dog in

his condominium unit) in order to allow him an equal opportunity

to use and enjoy his abode.       Fourth, the record makes manifest

that the Association informed Giménez that he could not keep his

dog in his unit.    No more was exigible: based on these supportable

findings,   the   Secretary   acted   well   within   the   scope   of   his

authority both in concluding that the Association's refusal to

grant an accommodation made Giménez's home unavailable to him

(thus, compelling him to move out in order to keep his emotional

support dog) and in concluding that these actions constituted

unlawful discrimination.5


    5 The Association makes much of the undisputed fact that, when
forced to leave the condominium, Giménez sold his unit at a
considerable profit. But this circumstance does not excuse the
Association's failure to comply with the Act.


                                 - 12 -
          To be sure, the Secretary reached these conclusions only

after rejecting the ALJ's central factual finding: that Giménez

did not suffer from a disability. But the Secretary did not reject

that finding lightly.    To the contrary, he gave specific and

plausible reasons for declining to follow the ALJ — reasons that

find adequate purchase in the record. See Aylett, 54 F.3d at 1561,

1567.

          In setting aside the ALJ's finding that Giménez did not

suffer from a disability, the Secretary noted that the ALJ had

discounted the testimony of Giménez, his treating psychiatrist

(Dr. Fernández), and his primary-care physician (Dr. Unda).    The

Secretary concluded that the ALJ lacked any sound basis for the

wholesale abrogation of this testimony.

          To begin, the ALJ discounted Giménez's own testimony,

apparently because he concluded that an individual cannot supply

key testimony verifying his own disability status.        Yet, our

research suggests the opposite.   See U.S. Dep't of Justice & U.S.

Dep't of Hous. & Urban Dev., Reasonable Accommodations Under the

Fair Housing Act, at 13 (May 17, 2004);6 see also Olsen v. Stark




    6 We agree with the Eleventh Circuit that even "[t]hough the
Joint Statement is a policy statement, rather than an authoritative
interpretation of FHA and therefore does 'not warrant Chevron-
style deference,' it is nonetheless 'entitled to respect' to the
extent it has the 'power to persuade.'"      Bhogaita v. Altamonte
Heights Condo. Ass'n, Inc., 765 F.3d 1277, 1286 n.3 (11th Cir.


                              - 13 -
Homes, Inc., 759 F.3d 140, 148, 157 (2d Cir. 2014) (explaining

that individual's testimony about his depression was competent to

put his disability status in issue).

          Next, the Secretary disagreed with the ALJ's assessment

of Dr. Fernández's testimony.     Dr. Fernández is a practicing

psychiatrist who had treated Giménez for years and who strongly

confirmed the existence of the claimed disability.   The ALJ seems

to have given no weight to the doctor's testimony for two primary

reasons: first, the ALJ cited the personal friendship between

Giménez and Dr. Fernández; and second, the ALJ was skeptical of

the fact that Dr. Fernández had not charged Giménez for treatment.

But the Secretary gave cogent reasons for disagreeing with the

ALJ's assessment.   As for the friendship between Giménez and Dr.

Fernández, the Secretary explained that HUD and DOJ have made

pellucid that verification of a person's disability can come from

any reliable third party who is in a position to know about the

individual's disability — a category into which Dr. Fernández

surely fit.   See U.S. Dep't of Justice & U.S. Dep't of Hous. &

Urban Dev., Reasonable Accommodations Under the Fair Housing Act,

at 13-14 (May 17, 2004).      The Secretary also explained that

ignoring a doctor's testimony simply because he treated a patient

pro bono would lead to the nonsensical conclusion that a physician



2014) (internal citation omitted) (quoting Christensen v. Harris
County, 529 U.S. 576, 587 (2000)).


                              - 14 -
who does not charge for his services could never testify.   Carried

to its logical extreme, the ALJ's view might even mean that a

person who receives all of his medical treatment for free could

never establish a disability.       In the end, it is the overall

quality of the proffered testimony that determines its probative

value.   Recognizing as much, the Secretary warrantably found that

Dr. Fernández's testimony was probative of Giménez's disability.

             Finally, the Secretary credited the testimony of Dr.

Unda — a witness whom the ALJ had disregarded altogether.       Dr.

Unda's testimony confirmed both Giménez's autobiographical account

of his struggles with anxiety and depression and Dr. Fernández's

diagnosis.    That Dr. Unda is not himself a psychiatrist does not,

as the ALJ intimated, preclude reliance on his testimony about his

patient's mental state.      See, e.g., Sprague v. Bowen, 812 F.2d

1226, 1231-32 (9th Cir. 1987); Alvarado v. Weinberger, 511 F.2d

1046, 1049 (1st Cir. 1975) (per curiam).

             Based on his evaluation of the testimony, the Secretary

concluded that Giménez had what amounted to a lifelong history of

depression.    Each of the physicians had treated Giménez for years,

and each doctor's opinion corroborated both Giménez's account of

his mental impairment and the other doctor's opinions.          The

Secretary was well within his purview to credit this testimony

fully and to make the ultimate determination that Giménez was

disabled, that is, that Giménez suffered from a mental impairment


                                - 15 -
that       substantially    limited    one   or   more   of   his   major   life

activities.       Even under the heightened scrutiny demanded by the

applicable standard of review, the Secretary's decision passes

muster because the record, viewed critically, clearly supports his

position.

               To say more on this point would be supererogatory.             We

hold both that the Secretary adequately articulated his reasons

for scrapping the ALJ's "no disability" finding and that his

conclusion that the Association had violated the Act is supported

by substantial evidence in the record as a whole.7

                               B.     Res Judicata.

               The Association argues that, regardless of the merits,

the charge against it ought to have been dismissed on the ground

of res judicata.        Some additional background is helpful in order

to put this argument in perspective.

               Prior   to   filing     his   complaint   with   HUD,   Giménez

protested the "no pets" bylaw to the Puerto Rico Department of

Consumer Affairs (familiarly known by its Spanish acronym, DACO).

That protest went nowhere: DACO upheld the Association's right to

include a "no pets" provision in its bylaws and to enforce such a




       7
      In fashioning his final order, the Secretary also rejected
the ALJ's conclusions as to the appropriate size of the damages
award and the penalty amount. But these were judgment calls, well
within the Secretary's ken; and we find his revised awards to be
adequately supported by substantial evidence in the record.


                                       - 16 -
provision.    The Association says that DACO's dismissal of the

plaintiff's complaint should be given preclusive effect.    Both the

ALJ and the Secretary disagreed.   So do we.

          In Puerto Rico, the doctrine of res judicata is codified

by statute.   Under that statute, "it is necessary that, between

the case decided by the sentence and that in which the same is

invoked, there be the most perfect identity between the things,

causes, and persons of the litigants, and their capacity as such."

P.R. Laws Ann. tit. 31, § 3343. This definition encompasses, inter

alia, the doctrine of claim preclusion.        See Medina-Padilla v.

U.S. Aviation Underwriters, Inc., 815 F.3d 83, 86 (1st Cir. 2016);

R.G. Fin. Corp. v. Vergara-Nuñez, 446 F.3d 178, 183 (1st Cir.

2006).

          "A party asserting claim preclusion under Puerto Rico

law must establish that: (i) there exists a prior judgment on the

merits that is 'final and unappealable'; (ii) the prior and current

actions share a perfect identity of both 'thing' and 'cause'; and

(iii) the prior and current actions share a perfect identity of

the parties and the capacities in which they acted."         García-

Monagas v. De Arellano, 674 F.3d 45, 51 (1st Cir. 2012).         The




                              - 17 -
second of those elements is not satisfied here8              and, accordingly,

res judicata does not apply.

          The     Puerto        Rico    Condominium    Act     sets   out   an

administrative process, available to DACO, that is confined to the

promulgation of condominium rules and enforcement of those rules.

See P.R. Laws Ann. tit. 31, § 1293f.            The Condominium Act does not

in any way address (or give DACO the power to address) housing

discrimination.    Nor does any other part of DACO's organic statute

authorize the exercise of such authority.              Consistent with this

limited grant of authority, DACO determined in this instance only

that the Association had adhered to proper drafting and voting

protocols in adopting the "no pets" bylaw and, therefore, the bylaw

was valid and binding on all owners.             It follows inexorably that

the DACO proceeding and the HUD proceeding do not — and, indeed,

could not — share a perfect identity of both thing and cause.

Thus, the ALJ did not err in refusing to apply res judicata to

pretermit Giménez's HUD charge.

                           C.    Motion in Limine.

          The Association also challenges a pretrial ruling of the

ALJ (implicitly upheld by the Secretary).             This ruling denied the

Association's motion to exclude the expert testimony and written




    8 It is not necessary for us to consider whether the first and
third elements are satisfied, and we take no view of those
questions.


                                       - 18 -
report of Giménez's treating psychiatrist, Dr. Fernández.           This

challenge is futile.

             To begin, the Association has waived this challenge by

failing to develop it in this court.        Before us, the Association

merely mentioned the argument in the most skeletal terms.           This

constituted a waiver: it is a "settled appellate rule that issues

adverted to in a perfunctory manner, unaccompanied by some effort

at developed argumentation, are deemed waived."         United States v.

Zannino, 895 F.2d 1, 17 (1st Cir. 1990).

             Nor does the Association's bare reference to pages in

the appendix cure this omission. A party cannot force an appellate

court to rummage through papers filed below in order to ascertain

the structure and substance of that party's arguments.                  See

Giragosian v. Bettencourt, 614 F.3d 25, 30 (1st Cir. 2010) (deeming

impuissant party's attempt to rely on arguments made only in

district court filings).

             In all events, the Association's claim has little force.

Dr. Fernández's expert testimony rests on a solid foundation: he

is a practicing psychiatrist who has treated Giménez since 1997.

Furthermore, his testimony is highly relevant: it goes directly to

the pivotal issues in the proceeding (Giménez's claimed disability

and his need for an emotional support dog).           An agency has wide

discretion    in   determining   what   individuals   are   competent   to

testify as experts in an administrative proceeding and what expert


                                 - 19 -
opinion testimony is admissible in such a proceeding. See SeaWorld

of Fla., LLC v. Perez, 748 F.3d 1202, 1214 (D.C. Cir. 2014); cf.

Diefenbach v. Sheridan Transp., 229 F.3d 27, 30 (1st Cir. 2000)

(discussing trial judge's broad discretionary power in determining

admissibility of expert testimony).    The record in this case,

fairly read, offers no reason to think that this wide discretion

was somehow exceeded.

V.   CONCLUSION

           We need go no further.9    For the reasons elucidated

above, we deny the Association's petition for review and grant the

Secretary's cross-petition for enforcement of his order.    Costs

shall be taxed in favor of the Secretary.



So Ordered.




     9On November 12, 2014, HUD issued a press release touting the
Secretary's final order in this case. The Association calls this
press release to our attention, see Fed. R. App. 28(j), and
attaches sinister implications to it. But we think it unremarkable
that an agency may seek to deter future acts of discrimination by
publicizing its success in charging and penalizing past violators.


                             - 20 -
