247 F.3d 1241 (D.C. Cir. 2001)
Building Industry Association of Superior California, et al., Appellantsv.Gale A. Norton, Secretary of the Interior, et al., Appellees
No. 00-5143
United States Court of Appeals FOR THE DISTRICT OF COLUMBIA CIRCUIT
Argued April 9, 2001Decided May 8, 2001

Appeal from the United States District Court  for the District of Columbia (95cv0726)
Lawrence R. Liebesman argued the cause for appellants. With him on the briefs was Rafe Petersen.
Elizabeth Ann Peterson, Attorney, United States Department of Justice, argued the cause for the federal appellees. With her on the brief were John Cruden, Deputy Assistant  Attorney General, and Ellen J. Durkee, Attorney.
Neil Levine argued the cause and filed the brief for the  non-federal appellees.
Robin L. Rivett and Anne M. Hayes were on the brief for  amici curiae Pacific Legal Foundation, et al., in support of  appellants.  Reed Hopper entered an appearance.
Before:  Sentelle and Henderson, Circuit Judges, and  Silberman, Senior Circuit Judge.
Opinion for the Court filed by Senior Circuit Judge  Silberman.
Silberman, Senior Circuit Judge:


1
Appellants Building Industry Association, et al., sought review of the Fish and  Wildlife Service's listing of various fairy shrimp species as  endangered or threatened.  They now challenge a district  court decision denying their motion for summary judgment. Determining that we have jurisdiction, we affirm the denial.

I.

2
In those regions of California with Mediterranean climates,  one finds shallow depressions called "vernal pools" that fill  with rainwater in fall and winter only to evaporate in spring. In these pools reside numerous indigenous aquatic invertebrates that have evolved to survive in the pools' variable  environmental conditions.  In 1992 the Fish and Wildlife  Service proposed to list as endangered species five tiny  crustaceans resident in California's vernal pools:  the vernal  pool fairy shrimp, Conservancy fairy shrimp, longhorn fairy  shrimp, California linderiella, and vernal pool tadpole shrimp  (collectively, "fairy shrimp").  The proposed rule specified  actual and threatened destruction of vernal pools as a justification for the listing.1


3
After a comment period, the Service withdrew the proposal  to list the California linderiella.  It listed vernal pool fairy  shrimp as threatened and the three remaining species as endangered.  Though the Endangered Species Act (ESA)  requires the Service to designate "critical habitat[s]" for  listed species "to the maximum extent prudent and determinable," the Service declined to make designations on the  ground that so doing would put the listed species at risk of  vandalism.2


4
The Service's decision then began its long and bumpy  journey to appellate review.  Appellants challenged the listing decision in the district court, asserting violations of the  ESA, the Administrative Procedure Act (APA), and the Constitution.  Along with contesting on various grounds the  general validity of the listing decision, appellants took issue  with the Service's failure to designate critical habitats.  In  response to cross-motions for summary judgment, the district  court in July 1997 granted summary judgment to the Service  on all claims except the critical habitat claim.  On that claim,  the court held that the failure to designate critical habitat was  arbitrary and capricious and remanded to the Service either  for designation or for explanation why designation was not  prudent.3


5
While the critical habitat remand was pending, the district  court certified the listing claims under Rule 54(b).  An appeal  of that portion of the decision followed, but we dismissed for  lack of jurisdiction.  The listing claims and the critical habitat  claim arose out of the same body of law and fact, meaning  that the listing appeal would be intertwined with a possible  critical habitat appeal.  With the threat of such a piecemeal  appeal looming, and without an explanation from the district  court as to why such an approach was desirable, we held that  we lacked jurisdiction.4


6
In March 1999, the district court reviewed additional record  citations the Service had provided in support of its conclusion  that critical habitat designations would be imprudent.  It  ruled that these materials did not adequately support the  Service's conclusion, vacated the Service's decision not to  designate critical habitats, and remanded once again.  According to the district court, the decision constituted a final  judgment on all claims.


7
Appellants brought a second appeal of the listing decision.  We ordered the parties to address whether a final decision  existed because the critical habitat remand was still before  the Service, which had not itself appealed.  In an attempt to  resolve any possible jurisdictional infirmity, appellants decided to abandon litigation of the critical habitat claim, leaving  for resolution only the listing claims, which were clearly final. To that end, appellants moved the district court to amend its  March 1999 judgment remanding to the Service or in the  alternative for leave to amend their complaint to delete the  critical habitat claim.  The district court determined that due  to the pending appeal it had no jurisdiction to consider the  motion;  it also indicated that if it were to regain jurisdiction,  it would deny the motion to amend the judgment but grant  leave to amend the complaint.5  Soon thereafter appellants  moved this court to dismiss their appeal, which we did.  The  district court then granted appellants' motion to strike from  their complaint the critical habitat claim, the only claim on  which they had prevailed.  Appellants immediately brought  this appeal, their third attempt to gain review of the district  court's dismissal of the listing claims.  We once again ordered  the parties to address our jurisdiction.

II.

8
Appellants allege numerous errors in the district court's  decision.  They argue that the rule's heavy reliance on a  study, the so-called "Simovich study," not made available  during the comment period violated the APA, as did the rule's  enumeration of fairy shrimp populations in terms of vernal  pool complexes rather than individual pools.  They further  contend that the listing was not supported by the best  available scientific data, as required by the ESA, and that the  Service misapplied its own policy on independent peer review.  The nonfederal appellees, public interest groups that intervened below ("intervenors"), argue that we lack jurisdiction  because no final judgment exists.  We address that argument  before reaching the merits.

A.

9
Intervenors' jurisdictional argument is subtle.  Absent appeal by the agency, an order remanding to an agency for  further proceedings is not an appealable final decision even  where the district court dismisses the case.  See NAACP v.  United States Sugar Corp., 84 F.3d 1432, 1436 (D.C. Cir.  1996).  Before amendment of the complaint, therefore, the  critical habitat remand pending before the Service prevented  our assertion of appellate jurisdiction over the listing claims. Accordingly, appellants amended their complaint to omit the  critical habitat claim.  Though the 1997 decision was not final  at the time it was entered, under the doctrine of cumulative  finality the dismissal of the only claim that survived that  decision retroactively rendered it final and appealable.  See  15A Charles Alan Wright, Arthur R. Miller, & Edward H.  Cooper, Federal Practice & Procedure  3914.9, at 631-42  (2d ed. 1992);  cf. Sacks v. Rothberg, 845 F.2d 1098, 1099 (D.C.  Cir. 1988) (per curiam).


10
Intervenors argue, however, that the district court abused  its discretion in allowing amendment of the complaint after  judgment.  If that were so, the March 1999 decision remanding to the Service would still be in force, and there would be  no final judgment for this court to review.  Ordinarily postjudgment amendment of a complaint under Rule 15(a) requires reopening of the judgment pursuant to Rule 59(e) or  60(b).  See Cassell v. Michaux, 240 F.2d 406, 407-08 (D.C.  Cir. 1956).  This prevents litigants from resurrecting claims  on which they have lost.  Cf. Firestone v. Firestone, 76 F.3d 1205, 1207-08 (D.C. Cir. 1996) (per curiam).  But that concern is absent here:  appellants prevailed on the claim in  question, and dropped it only so that they might appeal  dismissal of other claims.


11
Appellants respond (and the Service agrees) that because  the remand was not a final judgment, no motion under Rule  59 or 60 was necessary to amend the complaint to abandon  claims they no longer wished to pursue.  We agree.  The  general requirement of a Rule 59 or 60 motion prior to postjudgment amendment is employed to serve the judicial policy  "favoring finality of judgments and the expeditious termination of litigation."  See 6 Charles Alan Wright, Arthur R.  Miller, & Mary Kay Kane, Federal Practice & Procedure   1489, at 694 (2d ed. 1990).  Neither goal is served by  requiring a Rule 59 or 60 motion here.  Indeed, it would be  passing strange if in order to secure appeal of the claims on  which they lost appellants were forced to litigate to finality  claims on which they preliminarily prevailed and that they  now wish to abandon.6

B.

12
As noted, the rule relies heavily on the Simovich study,  which was released after the proposal and which the agency  received only during the comment period.  The study was  therefore not among the materials published for public comment.  Appellants argue that the Service's failure to seek  comment on the study violated the APA.


13
It is not disputed that the Service placed great weight on  the Simovich study.  It is cited frequently in the rule, which  touted it as "[s]cientifically credible."  59 Fed. Reg. at 48,141. The Service concedes that the study is "the first long-term  multidisciplinary study" and "the most scientifically based  and well-documented professional study" of California vernal  pools ever attempted, that it is "more comprehensive than  any previous study," and that "the final rule relied substantially on the findings in the Simovich study."


14
The Service nonetheless contends that it was not required  to publish the Simovich study for public comment, and we  agree.  The APA generally obliges an agency to publish for  comment the technical studies and data on which it relies. See Solite Corp. v. EPA, 952 F.2d 473, 484 (D.C. Cir. 1991)  (per curiam).  But to avoid "perpetual cycles of new notice  and comment periods," Ass'n of Battery Recyclers v. EPA,  208 F.3d 1047, 1058 (D.C. Cir. 2000), a final rule that is a  logical outgrowth of the proposal does not require an additional round of notice and comment even if the final rule  relies on data submitted during the comment period.  See  Int'l Fabricare Inst. v. EPA, 972 F.2d 384, 399 (D.C. Cir.  1992) (per curiam);  Solite, 952 F.2d at 484.  Such is the case  here.  The Simovich study, while the best available, only  confirmed the findings delineated in the proposal.  In relying  on it, the Service "did no more than provide support for the  same decision it had proposed to take."  Int'l Fabricare, 972  F.2d at 399.  Essentially, the proposal advanced for comment  a hypothesis and some supporting data.  The Simovich study  provided additional support for that hypothesis--indeed, better support than was previously available--but it did not  reject or modify the hypothesis such that additional comment  was necessary.  See Solite, 952 F.2d at 484.


15
Appellants next object to the rule because it counts fairy  shrimp populations by the number of vernal pool complexes,  not the number of individual vernal pools, in which they  reside.  See 59 Fed. Reg. at 48,137.  (A pool complex is a  group of individual pools that, due to their proximity, are  susceptible to the same threats.)  Appellants insist that the  proposal never put the public on notice of the "complexes methodology" or of the definition of complexes.7  But the use  of complexes to measure fairy shrimp populations was no  surprise:  the proposal itself used the term five times.  See 57  Fed. Reg. at 19,856, 19,858, 19,859.  Moreover, nothing in the  final rule's use of complexes constituted a deviation from the  proposed rule.  The proposal posited danger to existing fairy  shrimp populations, which were discussed in terms of both  individual pools and pool complexes;  consistent with the  proposal, the final rule found danger to existing fairy shrimp  populations, which were measured--most accurately, according to the rule--in terms of pool complexes.  The final rule's  measurement of populations solely in terms of complexes,  after the proposal's uncommitted use of both methodologies,  was a tightening of the rule's reasoning, but it was nonetheless a logical outgrowth of the proposal.  Appellants have not  pointed to any way in which the sharpened focus on complexes changed the rule's reasoning or conclusion.


16
Appellants also claim that methodological flaws in the  Simovich study and other relied-upon authorities mean that  the rule was not based on the "best scientific and commercial  data available," as required by 16 U.S.C.  1533(b)(1)(A). Yet as the district court noted, appellants "have pointed to no  data that was omitted from consideration."  979 F. Supp. at  903.  Assuming that studies the Service relied on were imperfect, that alone is insufficient to undermine those authorities'  status as the "best scientific ... data available."  Appellants  misread  1533(b)(1)(A):  the Service must utilize the "best  scientific ... data available," not the best scientific data  possible.  The Service may not base its listings on speculation  or surmise or disregard superior data, cf. Bennett v. Spear,  520 U.S. 154, 176 (1997);  City of Las Vegas v. Lujan, 891  F.2d 927, 933 (D.C. Cir. 1989), but absent superior data--and appellants point to none--occasional imperfections do not  violate  1533(b)(1)(A).


17
Finally, we reject appellants' claim that the listing's validity  is undermined by its failure to comply with the Service's peer  review policy.  To be sure, the listing was not subjected to  the present peer review procedure, which requires that "during the comment period" the Service obtain three independent specialists' opinions on the merits of the decision and  reprint them in the listing.  See Peer Review Policy Statement, 59 Fed. Reg. 34,270 (July 1, 1994).  But the current  peer review policy came into force 22 months after the close  of the fairy shrimp comment period.  Appellants point out  that a March 1995 letter from a Service official to Congressman Richard Pombo stated that "[i]n conformance with policy  (59 FR 34270), the Service sought scientific peer review of the  listing proposal."  Letter from George T. Frampton, Jr.,  Assistant Secretary for the Service, to Hon. Richard Pombo 1  (March 10, 1995).  That statement may have misled the  congressman as to the Service's compliance with the specific  peer review procedures promulgated in 1994, but the listing  was in fact subject to peer review that was intense though  less formal than is currently required.  In any event, appellants suggest no basis on which the letter would render the  later-enacted policy statement retroactively binding on an  already-concluded comment period.8


18
* * * *


19
The denial of appellants' motion for summary judgment is


20
Affirmed.



Notes:


1
  See Proposal to Determine Endangered Status for Fairy  Shrimp, 57 Fed. Reg. 19,856, 19,858 (proposed May 8, 1992).


2
  16 U.S.C.  1533(a)(3) (2000);  see Determination of Endangered Status for Fairy Shrimp, 59 Fed. Reg. 48,136, 48,151 (Sept.  19, 1994);  Withdrawal of Proposal as to the California Linderiella,  59 Fed. Reg. 48,154 (Sept. 19, 1994).


3
  See Bldg. Indus. Ass'n v. Babbitt, 979 F. Supp. 893, 905-06,  908 (D.D.C. 1997).


4
  See Bldg. Indus. Ass'n v. Babbitt, 161 F.3d 740 (D.C. Cir.  1998).


5
  See Bldg. Indus. Ass'n v. Babbitt, 70 F. Supp. 2d 1 (D.D.C.  1999).


6
  Intervenors argue that they are prejudiced by appellants'  amendment because they are forced to relitigate the dropped claim  in a separate suit.  But the inability of a third party to rely on the  disposition of a claim cannot force a plaintiff to litigate what it  wishes to drop.  In any event, one intervenor recently sued the  Service to compel designation of critical habitats for the four listed  species.  The district court has granted summary judgment to that  intervenor and ordered the Service to designate critical habitats by  August 8, 2001.  See Butte Envtl. Council v. White,  No. Civ. S-00-0797 WBS GGH (E.D. Cal. Feb. 8, 2001).


7
  Appellants' brief never explains why they were disadvantaged  by the Service's reliance on pool complexes.  At oral argument  appellants suggested that reliance on complexes reduced the number of discrete groups of fairy shrimp, meaning that a threat to a  single shrimp grouping threatens a greater fraction of that species. Their argument remains somewhat obscure.


8
  Appellants also argue that this application of the ESA exceeds  Congress' Commerce Clause power and that the Service misapplied  the ESA's statutory factors.  According to appellants' brief, however, the former claim fails under National Association of Home  Builders v. Babbitt, 130 F.3d 1041 (D.C. Cir. 1997), and is asserted  only to preserve the possibility of en banc review.  Appellants  conceded at oral argument that the latter claim was not pressed  below.


