Lulac v. Andrew Wheeler ( 2018 )

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
LEAGUE OF UNITED LATIN No. 17-71636
AMERICAN CITIZENS; PESTICIDE
ACTION NETWORK NORTH AMERICA;
NATURAL RESOURCES DEFENSE OPINION
COUNCIL; CALIFORNIA RURAL
LEGAL ASSISTANCE FOUNDATION;
FARMWORKERS ASSOCIATION OF
FLORIDA; FARMWORKER JUSTICE
GREENLATINOS; LABOR COUNCIL
FOR LATIN AMERICAN
ADVANCEMENT; LEARNING
DISABILITIES ASSOCIATION OF
AMERICA; NATIONAL HISPANIC
MEDICAL ASSOCIATION; PINEROS Y
CAMPESINOS UNIDOS DEL
NOROESTE; UNITED FARM WORKERS,
Petitioners,
STATE OF NEW YORK; STATE OF
MARYLAND; STATE OF VERMONT;
STATE OF WASHINGTON;
COMMONWEALTH OF
MASSACHUSETTS; DISTRICT OF
COLUMBIA; STATE OF CALIFORNIA;
STATE OF HAWAII,
Intervenors,
v.
2 LULAC V. WHEELER
ANDREW WHEELER, Acting
Administrator of the U.S.
Environmental Protection Agency;
and U.S. ENVIRONMENTAL
PROTECTION AGENCY,
Respondents.
On Petition for Review of an Order of the
Environmental Protection Agency
Argued and Submitted July 9, 2018
Seattle, Washington
Filed August 9, 2018
Before: Ferdinand F. Fernandez and Jacqueline H.
Nguyen, Circuit Judges, and Jed S. Rakoff, * District Judge.
Opinion by Judge Rakoff;
Dissent by Judge Fernandez
*
The Honorable Jed S. Rakoff, United States District Judge for the
Southern District of New York, sitting by designation.
LULAC V. WHEELER 3
SUMMARY **
Pesticides
The panel granted a petition for review, and vacated the
Environmental Protection Agency’s (“EPA”) 2017 order
maintaining a tolerance for the pesticide chlorpyrifos, and
remanded to the EPA with directions to revoke all tolerances
and cancel all registrations for chlorpyrifos within 60 days.
The Federal Food, Drug, and Cosmetic Act (“FFDCA”)
authorizes the EPA to regulate the use of pesticides on foods
according to specific statutory standards, and grants the EPA
a limited authority to establish tolerances for pesticides
meeting statutory qualifications. The EPA is subject to
safety standards in exercising its authority to register
pesticides under the Federal Insecticide, Fungicide, and
Rodenticide Act (“FIFRA”).
The EPA argued that FFDCA’s section 346a(g)(2)’s
administrative process deprived this Court of jurisdiction
until the EPA issues a response to petitioner’s administrative
objections under section 346a(g)(2)(C), which it has not
done to date.
The panel held that section 346a(h)(1) of the FFDCA
does not “clearly state” that obtaining a section (g)(2)(C)
order in response to administrative objections is a
jurisdictional requirement. The panel held that section
346a(h)(1) contains no jurisdictional label, is structured as a
**
This summary constitutes no part of the opinion of the court. It
has been prepared by court staff for the convenience of the reader.
4 LULAC V. WHEELER
limitation on the parties rather than the court, and only
references an exhaustion process that is outlined in a
separate section of the statute.
The panel held that in light of the strong individual interests
against requiring exhaustion and weak institutional interests
in favor of it, petitioners need not exhaust their
administrative objections and were not precluded from
raising issues on the merits.
Turning to the merits, the panel held that there was no
justification for the EPA’s decision in its 2017 order to
maintain a tolerance for chlorpyrifos in the face of scientific
evidence that its residue on food causes neurodevelopmental
damage to children. The panel further held that the EPA
cannot refuse to act because of possible contradiction in the
future by evidence. The panel held that the EPA was in
direct contravention of the FFDCA and FIFRA.
Judge Fernandez dissented. Judge Fernandez would hold
that there is no jurisdiction over the petition for review under
FFDCA and FIFRA, and dismiss the petition.
LULAC V. WHEELER 5
COUNSEL
Patti A. Goldman (argued), Marisa C. Ordonia, and Kristen
L. Boyles, Earthjustice, Seattle, Washington, for Petitioners.
Frederick A. Brodie (argued), Assistant Solicitor General;
Andrea Oser, Deputy Solicitor General; Barbara D.
Underwood, Attorney General; Office of the Attorney
General, Albany, New York; Brian E. Frosh, Attorney
General; Steven M. Sullivan, Solicitor General; Office of the
Attorney General, Baltimore, Maryland; Thomas J.
Donovan Jr., Attorney General; Nicholas F. Persampieri,
Assistant Attorney General; Office of the Attorney General,
Montpelier, Vermont; Robert W. Ferguson, Attorney
General; William R. Sherman, Counsel for Environmental
Protection; Attorney General’s Office, Seattle, Washington;
Maura Healey, Attorney General; I. Andrew Goldberg,
Assistant Attorney General; Environmental Protection
Division, Office of the Attorney General, Boston,
Massachusetts; Karl A. Racine, Attorney General; Brian R.
Caldwell, Assistant Attorney General; Office of the Attorney
General, Washington, D.C.; Xavier Becerra, Attorney
General; Susan S. Fiering, Supervising Deputy Attorney
General; Reed Sato, Deputy Attorney General; Office of the
Attorney General, Sacramento, California; Russell A.
Suzuki, Acting Attorney General; Wade H. Hargrove III,
Deputy Attorney General; Health and Human Services
Division, Department of the Attorney General, Honolulu,
Hawaii; for Intervenors.
Phillip R. Dupré (argued) and Erica M. Zilioli, Attorneys,
Environmental Defense Section; Jeffrey H. Wood, Acting
Assistant Attorney General; Environment and Natural
Resources Division, United States Department of Justice,
Washington, D.C.; Mark Dyner, Office of the General
6 LULAC V. WHEELER
Counsel, United States Environmental Protection Agency,
Washington, D.C.; for Respondents.
Donald C. McLean, Stanley H. Abramson, Kathleen R.
Heilman, and Sylvia G. Costelloe, Arent Fox LLP,
Washington, D.C., for Amicus Curiae Dow Agrosciences
LLC.
Susan J. Kraham and Edward Lloyd, Columbia
Environmental Clinic, Morningside Heights Legal Services,
New York, New York, for Amicus Curiae Congressman
Henry Waxman.
Shaun A. Goho, Emmett Environmental Law & Policy
Clinic, Harvard Law School, Cambridge, Massachusetts, for
Amici Curiae Health Professional Organizations.
LULAC V. WHEELER 7
OPINION
RAKOFF, District Judge:
Over nearly two decades, the U.S. Environmental
Protection Agency (“EPA”) has documented the likely
adverse effects of foods containing the residue of the
pesticide chlorpyrifos on the physical and mental
development of American infants and children, often lasting
into adulthood. In such circumstances, federal law
commands that the EPA ban such a pesticide from use on
food products unless “there is a reasonable certainty that no
harm will result from aggregate exposure to the pesticide.”
21 U.S.C. § 346a(b)(2)(A)(ii). Yet, over the past decade and
more, the EPA has stalled on banning chlorpyrifos, first by
largely ignoring a petition properly filed pursuant to law
seeking such a ban, then by temporizing in response to
repeated orders by this Court to respond to the petition, and,
finally, in its latest tactic, by denying outright our
jurisdiction to review the ultimate denial of the petition, even
while offering no defense on the merits. If Congress’s
statutory mandates are to mean anything, the time has come
to put a stop to this patent evasion.
Petitioners seek review of an EPA order issued March
29, 2017 (the “2017 Order” or “Order”) that denied a 2007
petition to revoke “tolerances,” i.e. limited allowances, for
the use of chlorpyrifos on food products. Petitioners argue
that the EPA does not have the authority to maintain the
tolerances for chlorpyrifos under the Federal Food, Drug,
and Cosmetic Act (“FFDCA”), which authorizes the EPA to
“leave in effect a tolerance for a pesticide chemical residue
in or on a food only if the Administrator determines that the
tolerance is safe”—with “safe,” in turn, defined to mean that
the EPA “has determined that there is a reasonable certainty
that no harm will result from aggregate exposure to the
8 LULAC V. WHEELER
pesticide chemical residue.” 21 U.S.C. § 346a(b)(2)(A)(i)–
(ii). Respondent, the EPA, has never made any such
determination and, indeed, has itself long questioned the
safety of permitting chlorpyrifos to be used within the
allowed tolerances. The EPA, therefore, does not defend the
2017 Order on the merits. Instead, the EPA argues that,
despite petitioners having properly-filed administrative
objections to the 2017 Order more than a year ago, and
despite the statutory requirement that the EPA respond to
such objections “as soon as practicable,” the EPA’s utter
failure to respond to the objections deprives us of
jurisdiction to adjudicate whether the EPA exceeded its
statutory authority in refusing to ban use of chlorpyrifos on
food products.
We hold that obtaining a response to objections before
seeking review by this Court is a claim-processing rule that
does not restrict federal jurisdiction, and that can, and here
should, be excused. There being no other reason not to do
so, we grant the petition on the merits.
BACKGROUND
A. The Statutory Framework
The FFDCA authorizes the EPA to regulate the use of
pesticides on foods according to specific statutory criteria.
21 U.S.C. §§ 301–399i. The FFDCA prescribes that food
with “any pesticide chemical residue . . . shall be deemed
unsafe” and barred from movement in interstate commerce.
Id. § 346a(a)(1). However, it grants the EPA a limited
authority to establish tolerances for pesticides meeting
statutory qualifications, enabling foods bearing residues of
those pesticides within these tolerances to move in interstate
commerce. See id. § 346a(a), (a)(4), (b)(1).
LULAC V. WHEELER 9
The EPA’s ability to establish tolerances depends on a
safety finding. “The Administrator may establish or leave in
effect a tolerance . . . only if the Administrator determines
that the tolerance is safe.” Id. § 346a(b)(2)(A)(i). A tolerance
qualifies as safe if “the Administrator has determined that
there is a reasonable certainty that no harm will result from
aggregate exposure to the pesticide chemical residue,
including all anticipated dietary exposures and all other
exposures for which there is reliable information.” Id.
§ 346a(b)(2)(A)(ii) (emphasis added). To make such a
determination, the EPA must perform a safety analysis to
“ensure that there is a reasonable certainty that no harm will
result to infants and children from aggregate exposure” and
“publish a specific determination regarding the safety of the
pesticide chemical residue for infants and children. Id.
§ 346(b)(2)(C)(ii)(I)–(II). Furthermore, even after
establishing a tolerance, the EPA bears continuous
responsibility to ensure that the tolerance continues to satisfy
the FFDCA’s safety standard; the FFDCA provides that the
Administrator may “leave in effect a tolerance . . . only if the
Administrator determines that the tolerance is safe” and
“shall modify or revoke a tolerance if the Administrator
determines it is not safe.” Id. § 346a(b)(2)(A)(i).
The EPA is subject to these same safety standards in
exercising its authority to register pesticides under the
Federal Insecticide, Fungicide, and Rodenticide Act
(“FIFRA”). See 7 U.S.C. § 136a(a). The EPA Administrator
must register a pesticide—which is a requirement for
pesticides to be distributed or sold—when, among other
qualifications, the pesticide does not have “unreasonable
adverse effects on the environment.” Id. § 136a(c)(5) (D).
FIFRA incorporates the FFDCA’s safety standard into the
definition of “unreasonable adverse effects” to include “a
human dietary risk from residues that result from a use of a
10 LULAC V. WHEELER
pesticide in or on any food inconsistent with the standard
under [the FFDCA].” Id. § 136(bb). FIFRA requires the EPA
to reevaluate pesticides periodically after approval. Id.
While the EPA can act on its own initiative to establish,
modify or revoke a tolerance under the FFDCA, 21 U.S.C.
§ 346a(e)(1), “[a]ny person may file . . . a petition proposing
the issuance of [such] a regulation.” Id. § 346a(d)(1). After
“due consideration,” the EPA Administrator must issue
either a proposed or final regulation or an order denying the
petition. Id. § 346a(d)(4)(A). After this response, “any
person may file objections thereto with the Administrator.”
Id. § 346a(g)(2)(A). The FFDCA directs that the
Administrator “shall issue an order [known as a “g(2)(C)
order”] stating the action taken upon each . . . objection”
“[a]s soon as practicable.” Id. § 346a(g)(2)(C). “[A]ny
person who will be adversely affected” by that order or the
underlying regulation “may obtain judicial review by filing
in the United States Court of Appeals” a petition for review.
Id. § 346a(h)(1).
B. The History of this Litigation
This case arises from a 2007 petition filed under
21 U.S.C. § 346a(d) proposing that the EPA revoke
tolerances for the pesticide chlorpyrifos (the “2007 Petition”
or the “Petition”). Chlorpyrifos, an organophosphate
pesticide initially developed as a nerve gas during World
War II, was approved in 1965 in the United States as a
pesticide for agricultural, residential, and commercial
purposes. Chlorpyrifos kills insects by suppressing
acetelycholinestrerase, an enzyme that acts as a
neurotransmitter in various organisms, including humans.
The EPA has set chlorpyrifos residue tolerances for 80 food
crops, including fruits, nuts, and vegetables. See 40 C.F.R.
§ 180.342. The 2007 Petition, filed by the Pesticide Action
LULAC V. WHEELER 11
Network North America (“PANNA”) and the Natural
Resources Defense Council (“NRDC”), presented scientific
studies showing that children and infants who had been
exposed prenatally to low doses of chlorpyrifos suffer harms
such as reduced IQ, attention deficit disorders, and delayed
motor development, that last into adulthood.
Prior to the Petition’s filing, the EPA already had
concerns about chlorpyrifos. After reviewing the registration
for chlorpyrifos in 1998 under the amended FFDCA’s
heightened safety standards that required considering
cumulative exposure and the specific risks to children, the
EPA cancelled all residential uses. Although the EPA
continued to allow the use of chlorpyrifos as a pesticide on
food crops, see 40 C.F.R. § 180.342, it required that “risk
mitigation measures” be implemented while a full
reassessment of chlorpyrifos was undertaken, as continued
usage of chlorpyrifos without additional precautions “would
present risks inconsistent with FIFRA.” EPA 738-R-01-007
“Interim Reregistration Eligibility Decision for
Chlorpyrifos” (Feb. 2002)). This “interim reregistration”
also announced future plans to reduce or revoke entirely
chlorpyrifos tolerance levels for certain crops, citing “acute
dietary risks” for “infants, all children, and nursing females.”
Id.
Despite these earlier expressions of concern, the EPA
failed to take any decisive action in response to the 2007
Petition, notwithstanding that the EPA’s own internal
studies continued to document serious safety risks associated
with chlorpyrifos use, particularly for children. A 2008 EPA
Science Issue Paper, reviewing existing scientific studies,
“preliminarily concluded that chlorpyrifos likely played a
role” in low birth rate and delays in infant mental
development observed in human cohort studies. A Science
12 LULAC V. WHEELER
Advisory Panel convened in 2008 concurred that
chlorpyrifos exposures “can lead to neurochemical and
behavioral alterations [in the young] that persist into
adulthood.” A Science Advisory Panel convened in 2011
found “persuasive” evidence “that there are enduring effects
on the Central Nervous System . . . from chlorpyrifos
exposure at or above 1.0 mg/kg,” and that chlorpyrifos
exposure is associated with adverse neurodevelopmental
effects in children, including abnormal reflexes, pervasive
development disorder, and attention and behavior problems.
Yet, even after all of these EPA studies, by 2012 the EPA
still had not responded to the 2007 Petition. PANNA and
NRDC thereupon petitioned this Court for a writ of
mandamus to force the EPA to take action. We initially
dismissed the mandamus petition, without prejudice to its
renewal, based on the EPA’s representation that it had a
“concrete timeline for final agency action” to be taken on the
2007 Petition by February 2014. In re PANNA, 532 F. App’x
649, 651 (9th Cir. 2013). When the EPA failed to respond to
the 2007 Petition by September 2014, PANNA and NRDC
again petitioned for mandamus, which we granted, ordering
the EPA to issue a final response on the 2007 Petition by
October 2015. In re PANNA, 798 F.3d 809, 815 (9th Cir.
2015). 1 We found the EPA’s delay in responding to the 2007
Petition “egregious,” especially “[i]n view of [the] EPA’s
own assessment of the dangers to human health posed by this
pesticide,” noting that the EPA had recently “reported that
chlorpyrifos poses such a significant threat to water supplies
that a nationwide ban on the pesticide may be justified.” Id.
at 811, 814.
1
Unless otherwise indicated, case quotations omit all internal
quotation marks, alterations, footnotes, and citations.
LULAC V. WHEELER 13
Notwithstanding the deadline set by this Court, the EPA
did not initially respond to the 2007 Petition until November
2015, when it issued a proposed rule revoking all tolerances
for chlorpyrifos. Chlorpyrifos; Tolerance Revocations,
80 Fed. Reg. 69,080 (Nov. 6, 2015); see 21 U.S.C.
§ 346a(d)(4)(A)(ii). Describing the various scientific
studies’ “consistency of finding neurodevelopmental
effects” as “striking,” id. at 69,090, the EPA stated that it
was “unable to conclude that the risk from aggregate
exposure from the use of chlorpyrifos meets the safety
standard of [21 U.S.C. § 346a(b)(2)(A)(i)]” id. at 69,080.
Yet the EPA still equivocated and delayed. Accordingly,
in December 2015, we ordered the EPA “to take final action
by December 30, 2016 on its proposed revocation rule.” In
re PANNA, 808 F.3d 402, 402 (9th Cir. 2015). In June 2016,
the EPA requested a six-month extension to continue
scientific analysis, a request we characterized as “another
variation on a theme of partial reports, missed deadlines, and
vague promises of future action that has been repeated for
the past nine years.” In re PANNA, 840 F.3d 1014, 1015 (9th
Cir. 2016). We found that a six-month delay was “not
justified” in light of the previous time extensions and the
EPA’s “continued failure to respond to the pressing health
concerns presented by chlorpyrifos,” but granted a three-
month extension to March 2017. Id.
In the meantime, the EPA issued a 2016 Risk
Assessment concluding that estimated dietary exposure to
chlorpyrifos at existing tolerances exceeded what was
acceptable for all population groups analyzed, with the
highest risks for young children. The Risk Assessment found
that scientific literature “as a whole provides evidence of
long-lasting neurodevelopmental disorders” linked to
chlorpyrifos exposure, with any remaining scientific
14 LULAC V. WHEELER
uncertainties insufficient to “undermine or reduce the
confidence in the findings of the epidemiology studies.” The
EPA concluded that its analysis of chlorpyrifos “continues
to indicate that the risk from the potential aggregate
exposure does not meet the FFDCA safety standard” and that
“expected residues of chlorpyrifos on most individual food
crops exceed the ‘reasonable certainty of no harm’ safety
standard.” Chlorpyrifos; Tolerance Revocations; Notice of
Data Availability and Request for Comment, 81 Fed. Reg.
81,049, 81,050 (Nov. 17, 2016).
Then, in the Order at issue in this case, the EPA reversed
its position and denied the 2007 Petition on the merits,
leaving chlorpyrifos tolerances in effect. Chlorpyrifos;
Order Denying PANNA and NRDC’s Petition To Revoke
Tolerances, 82 Fed. Reg. 16,581 (Apr. 5, 2017). The Order
did not refute the agency’s previous scientific findings on
chlorpyrifos or its conclusion that chlorpyrifos violated the
FFDCA safety standard. Instead, the EPA stated that it
would not revoke tolerances as “the science addressing
neurodevelopmental effects remains unresolved.” Id. at
16,583. The EPA stated that it would not complete “any
associated tolerance revocation of chlorpyrifos without first
attempting to come to a clearer scientific resolution,” id., and
claimed to have “discretion to determine the schedule” for
reviewing the existing chlorpyrifos tolerances as long as it
completed the chlorpyrifos registration review by FIFRA’s
deadline of October 1, 2022, id. at 16,590.
PANNA and NRDC moved for further mandamus relief
in this Court, arguing that the 2017 Order failed to respond
adequately to the 2007 Petition. We denied their motion as
premature because the EPA had “done what we ordered it to
do,” i.e. responded to the 2007 Petition, since the 2017 Order
formally denied it. In re PANNA, 863 F.3d 1131, 1132 (9th
LULAC V. WHEELER 15
Cir. 2017). Petitioners then petitioned this Court for review
of the 2017 Order. Petitioners concurrently filed objections
in the EPA’s administrative review process. Thereafter, we
permitted several states that had also filed objections to the
Order to intervene in this matter.
The EPA does not defend this suit on the merits, but
argues that § 346a(g)(2)’s administrative process deprives
this Court of jurisdiction until the EPA issues a response to
petitioners’ administrative objections, see § 346a(g)(2)(C),
which it has not done to date.
DISCUSSION
A. Jurisdiction
The term “jurisdiction” refers specifically to “a court’s
adjudicatory authority.” Reed Elsevier, Inc. v. Muchnick,
559 U.S. 154, 160 (2010). Therefore, “a rule should not be
referred to as jurisdictional unless it governs a court’s
adjudicatory capacity, that is, its subject-matter or personal
jurisdiction.” Henderson ex rel. Henderson v. Shinseki,
562 U.S. 428, 435 (2011). In other words, “jurisdictional
statutes speak to the power of the court rather than to the
rights or obligations of the parties.” Landgraf v. USI Film
Prods., 511 U.S. 244, 274 (1994).
The Supreme Court has emphasized the necessity of
observing “the important distinctions between jurisdictional
prescriptions and claim-processing rules.” Reed Elsevier,
559 U.S. at 161. Claim-processing rules “seek to promote
the orderly progress of litigation by requiring that the parties
take certain procedural steps at certain specified times.”
Henderson, 562 U.S. at 435. Claim-processing rules may be
“important and mandatory,” but, as they do not “govern[] a
16 LULAC V. WHEELER
court’s adjudicatory capacity,” they can be waived by the
parties or the court. Id.
The Supreme Court has adopted a “bright line” test for
determining when to classify statutory restrictions as
jurisdictional. Arbaugh v. Y&H Corp., 546 U.S. 500, 516
(2006). A rule qualifies as jurisdictional only if “Congress
has clearly stated that the rule is jurisdictional.” Sebelius v.
Auburn Reg’l Med. Ctr., 568 U.S. 145, 153 (2013).
“[A]bsent such a clear statement,” the Supreme Court has
cautioned, “courts should treat the restriction as
nonjurisdictional in character,” with the specific goal of
“ward[ing] off profligate use of the term ‘jurisdiction.’” Id.
In considering whether Congress has spoken clearly, courts
consider both the language of the statute and its “context,
including . . . [past judicial] interpretation[s] of similar
provisions.” Reed Elsevier, 559 U.S. at 168.
“[T]hreshold requirements that claimants must
complete, or exhaust, before filing a lawsuit” are typically
“treated as nonjurisdictional.” Id. at 166. Accordingly, “we
have rarely found exhaustion statutes to be a jurisdictional
bar.” McBride Cotton & Cattle Corp. v. Veneman, 290 F.3d
973, 978 (9th Cir. 2002) (holding that requirement of
“exhaust[ing] all administrative appeal procedures . . .
before [a] person may bring an action in a court” was not
jurisdictional); see also Anderson v. Babbitt, 230 F.3d 1158,
1162 (9th Cir. 2000) (same for provision that “[n]o decision
which at the time of its rendition is subject to
[administrative] appeal . . . shall be considered final so as to
be agency action subject to judicial review”); Rumbles v.
Hill, 182 F.3d 1064, 1067 (9th Cir. 1999) (same for
provision that “[n]o action shall be brought . . . until such
administrative remedies as are available are exhausted”),
LULAC V. WHEELER 17
overruled on other grounds by Booth v. Churner, 532 U.S.
731 (2001).
Section 346a(h)(1), the FFDCA’s judicial review
provision, provides:
In a case of actual controversy as to the
validity of any regulation issued under
subsection (e)(1)(C), or any order issued
under subsection (f)(1)(C) or (g)(2)(C), or
any regulation that is the subject of such an
order, any person who will be adversely
affected by such order or regulation may
obtain judicial review by filing in the United
States Court of Appeals for the circuit
wherein that person resides or has its
principal place of business, or in the United
States Court of Appeals for the District of
Columbia Circuit, within 60 days after
publication of such order or regulation, a
petition praying that the order or regulation
be set aside in whole or in part.
The (g)(2)(C) order referenced above is the order “stating the
action taken upon each such objection and setting forth any
revision to the regulation or prior order that the
Administrator has found to be warranted,” which the EPA
must issue at the conclusion of the administrative objections
process outlined in § 346a(g)(2). Id. § 346a(g)(2)(C).
We must consider whether § 346a(h)(1) “clearly states”
that obtaining a (g)(2)(C) order in response to administrative
objections is a jurisdictional requirement. It does not.
Section 346a(h)(1) “is written as a restriction on the rights of
plaintiffs to bring suit, rather than as a limitation on the
power of the federal courts to hear the suit.” Payne v.
18 LULAC V. WHEELER
Peninsula Sch. Dist., 653 F.3d 863, 869 (9th Cir. 2011) (en
banc). It delineates the process for a party to obtain judicial
review, by filing suit in one of two venues within a specified
time, not the adjudicatory capacity of those courts.
In Henderson, the Supreme Court evaluated a similarly
structured provision, which provided that, “to obtain
[judicial] review” of a final decision of the Board of
Veterans’ Appeals, “a person adversely affected . . . shall file
a notice of appeal with the Court.” 562 U.S. at 438. The
Court found this language did “not suggest, much less
provide clear evidence, that the provision was meant to carry
jurisdictional consequences.” Id. Similarly, in Payne, we
held that an exhaustion requirement providing that “before
the filing of a civil action . . . , the [administrative]
procedures . . . shall be exhausted” was not a jurisdictional
limit on the courts, but a requirement for plaintiffs that could
be waived. 653 F.3d at 867, 869. Like the provision
evaluated in Payne, the focus of § 346a(h)(1) on the
requirements for petitioners “strongly suggests that the
restriction may be enforced by defendants but that the
exhaustion requirement may be waived or forfeited.” Id. at
869.
Further, § 346a(h)(1) “does not speak in jurisdictional
terms or refer in any way to the jurisdiction of the [federal]
courts.” Zipes v. Trans World Airlines, Inc., 455 U.S. 385,
394 (1982). The word “jurisdiction” never appears. The
reference to the United States Courts of Appeals “simply
clarifies that, when determining in which court of competent
jurisdiction they will file their claim, . . . litigants have a
choice of venue.” Merritt v. Countrywide Fin. Corp.,
759 F.3d 1023, 1038 (9th Cir. 2012) (classifying provision
that an action “may be brought in any United States district
court, or in any other court of competent jurisdiction” as
LULAC V. WHEELER 19
non-jurisdictional claim-processing rule despite its being
labeled “Jurisdiction of courts; limitations on actions”).
Section 346a(h)(1) similarly lacks mandatory language
with “jurisdictional import.” Auburn Reg’l Med. Ctr.,
568 U.S. at 154. It merely provides that a person “may obtain
judicial review.” 21 U.S.C. § 346a(h)(1) (emphasis added).
In Auburn Regional Medical Center, the Supreme Court
evaluated a provision with similar language, which
instructed that a health care provider “may obtain a hearing”
by the Provider Reimbursement Review Board if “such
provider files a request for a hearing within 180 days after
notice of the intermediary’s final determination.” 568 U.S.
at 154. The Court held that the provision did “not speak in
jurisdictional terms” in part because it lacked “words with
jurisdictional import” like “the mandatory word ‘shall.’” Id.
Similarly, this Court has held that “permissive, non-
mandatory language such as . . . . ‘may file’ . . . weighs
considerably against a finding that [the provision] is
jurisdictional.” Merritt, 759 F.3d at 1037.
Aside from listing a (g)(2)(C) order as one of the orders
available for judicial review, § 346a(h)(1) provides no
indication that the administrative process required to
produce a (g)(2)(C) order is a condition of the courts’
jurisdiction. The objections process itself is detailed in
Section 346a(g)(2), a separate provision focused entirely on
administrative processes rather than on judicial review. The
Supreme Court has repeatedly found that a requirement’s
“appear[ance] as an entirely separate provision” from the
one concerning judicial review is a significant indicator of
lack of Congressional intent to make that requirement
jurisdictional. Zipes, 455 U.S. at 393–94; see also Reed
Elsevier, 559 U.S. at 164; Arbaugh, 546 U.S. at 515.
20 LULAC V. WHEELER
The fact that (g)(2)(C) orders issued at the conclusion of
administrative objections appear on § 346a(h)(1)’s list of
orders for judicial review, while (d)(4)(A) orders issued in
response to petitions do not, is not in itself suggestive as to
whether obtaining a (g)(2)(C) order is a jurisdictional
limitation. In evaluating statutes that similarly list
administrative actions available for judicial review, the
Supreme Court has observed that “[t]he mere fact that some
acts are made reviewable should not suffice to support an
implication of exclusion as to others.” Verizon Md., Inc. v.
Pub. Serv. Comm’n, 535 U.S. 635, 643 (2002). “The right to
review is too important to be excluded on such slender and
indeterminate evidence of legislative intent.” Abbott Labs. v.
Gardner, 387 U.S. 136, 141 (1967), abrogated on other
grounds by Califano v. Sanders, 430 U.S. 99, 105 (1977).
The Dissent finds the language of § 346a(h)(5)
suggestive of a Congressional intent to “preclude[] possible
bypassing of the § 346a(g)(2) provisions.” Dissent at 37. We
disagree. Section 346a(h)(5) provides that “[a]ny issue as to
which review is or was obtainable under this subsection shall
not be the subject of judicial review under any other
provision of law.” This is a limitation on the availability of
judicial review under other statutory provisions, not a
pronouncement as to the internal requirements of
§ 346a(h)(1) jurisdiction. Similarly, NRDC v. Johnson,
461 F.3d 164 (2006), the Second Circuit case cited by the
Dissent to support its position that § 346a(h)(5) limits this
Court’s jurisdiction, is inapposite. In that case, the Second
Circuit held that “Section 346a(h) limits judicial review to
the courts of appeals,” rejecting an attempt by plaintiffs to
challenge a tolerance by filing directly in federal district
court under the APA, rather than filing in a federal appellate
court pursuant to § 346a(h)(1). Id. at 173 (emphasis added).
While Johnson also stated that § 346a(h) “forecloses such
LULAC V. WHEELER 21
[appellate court] review prior to the exhaustion of
administrative remedies,” id., this was pure dictum and
particularly inapposite here, since the question of whether
such exhaustion was jurisdictional was not presented in that
case, which expressly was concerned only with whether
“decisions to leave tolerances in effect are reviewable in the
district courts.” Id. at 167.
We are also mindful what it would mean for future
review of EPA decisions if we were to find obtaining a
(g)(2)(C) order to be a jurisdictional requirement. In seeking
to “bring some discipline” to the classification of provisions
as jurisdictional, the Supreme Court has repeatedly
considered how the classification of the rule in question
would impact future claims. See Auburn Reg’l Med. Ctr.,
568 U.S. at 153–54 (examining “what it would mean” for the
review process if a provision were found jurisdictional); see
also Henderson, 562 U.S. at 434 (addressing the
“considerable practical importance” that attaches to the
jurisdictional label, including how jurisdictional rules “may
. . . result in the waste of judicial resources and may unfairly
prejudice litigants”). The impact of a jurisdictional finding
must be considered within the context of the administrative
process Congress was establishing in the relevant statute,
and the values that process was meant to protect. For
example, in Henderson, the Supreme Court addressed the
impact of a jurisdictional finding on the process established
by Congress for adjudicating veterans’ benefits claims
considering the “solicitude of Congress for veterans”
reflected in the review scheme. Id.
Applying this analysis to the present case, a
jurisdictional finding would mean that under no
circumstances could persons obtain judicial review of a
denial of a petition prior to an EPA response to an
22 LULAC V. WHEELER
administrative objection, even under exigent circumstances
where the EPA was unwilling or unable to act. The EPA
could evade judicial review simply by declining to issue a
(g)(2)(c) order in response to an objection, requiring
petitioners to seek writs of mandamus to order EPA action
on objections. The history of this very case vividly illustrates
this danger.
The language Congress used hardly suggests an intention
to allow this scenario. Section 346a(g)(2) instructs the EPA
to respond “as soon as practicable” to objections filed.
Providing only a brief administrative review process makes
sense. By the time an administrative objection is filed, the
EPA has already fully considered the petition at issue and
issued either a “final regulation” or, as here, “an order
denying the petition.” 21 U.S.C. § 346a(d)(4)(A)(iii).
Furthermore, § 346a(h)(1) provides direct access to the
Courts of Appeals to challenge such EPA determinations.
Broad, efficient, and prompt access to judicial review is
consistent with the other values expressed by the statutory
scheme: prioritizing public involvement in monitoring
tolerances, as evidenced by the § 346a(d) petition process;
and requiring quick EPA responses to changing scientific
evidence, as evidenced by the EPA’s continuing obligation
to ensure that tolerances remain in compliance with the
FFDCA’s safety standards. See § 346a(b)(2)(A)(i).
We have recognized that “determining what has and
what has not been exhausted . . . may prove an inexact
science” and that “questions about whether administrative
proceedings would be futile, or whether dismissal of a suit
would be consistent with the general purposes of exhaustion,
are better addressed through a fact-specific assessment of the
affirmative defense than through an inquiry about whether
the court has the power to decide the case at all.” Payne,
LULAC V. WHEELER 23
653 F.3d at 870. Finding that a (g)(2)(C) order is a
jurisdictional prerequisite would mean that courts would
have no ability to analyze whether the administrative process
was serving an important role in furthering the development
of necessary evidence or was of little value for the issue in
question, no matter the significance or the urgency of the
question awaiting judicial review.
The EPA makes three main arguments that
§ 346a(g)(2)(C) is in fact jurisdictional. None are persuasive.
First, the EPA argues that a 1996 amendment to the
language of the FFDCA’s judicial review provision
changing the reviewable orders listed in § 346a(h)(1),
indicated a Congressional intent to condition jurisdiction
over any orders not listed in Section 346a(h)(1) on their
completion of the administrative appeals process. The EPA
provides no support for this account of Congressional
motivation, which it loosely suggests was a response to a
D.C. Circuit decision from nearly a decade earlier finding
that the language in the prior version did not require
completing an administrative hearing process before filing
for judicial review. In fact, the legislative history indicates
that the amended statute “retain[ed] most of the existing
provisions” regarding judicial review. H.R. Rep. No. 104-
669(II), at 49 (1996). But even assuming that Congress’s
intent with this amendment was to have orders issued in
response to petitions go through the § 346a(g)(2)
administrative objections process prior to judicial review,
that does not bear on the relevant question here, whether
Congress intended the new rule as a claims-processing rule
or a jurisdictional limitation on the courts.
Second, the EPA argues that the structure of the
administrative objections process itself indicates that the
process was intended as a jurisdictional requirement, rather
24 LULAC V. WHEELER
than a claims-processing rule. This argument relies almost
entirely on the similarity between § 346a(g)(2)’s objections
process and an administrative appeal process that we found
jurisdictional in Gallo Cattle Co. v. United States
Department of Agriculture, 159 F.3d 1194 (9th Cir. 1998).
However, Gallo was premised on a view of statutory
exhaustion that is inconsistent with subsequent Supreme
Court precedent and later decisions in this circuit. Compare
id. at 1197 (“[S]tatutorily-provided exhaustion requirements
deprive the court of jurisdiction . . . .”), with McBride,
290 F.3d at 980 (“[N]ot all statutory exhaustion
requirements are created equal. Only statutory exhaustion
requirements containing sweeping and direct language
deprive a federal court of jurisdiction.”). We have
specifically cautioned against reliance on prior cases like
Gallo, “decided without the benefit of the Supreme Court’s
recent admonitions against profligate use of the term
jurisdictional.” Merritt, 759 F.3d at 1039. Moreover, even
without this change in case law, Gallo would be inapposite.
Unlike § 346a(h)(1), the provision evaluated in Gallo was
explicitly jurisdictional, providing that “[t]he district courts
of the United States . . . are hereby vested with jurisdiction
to review [the administrative] ruling.” Gallo, 159 F.3d at
1197 (emphasis added).
Finally, the EPA argues that this Court’s statement in its
most recent decision in the prior mandamus action forecloses
this conclusion. It does not. That decision denied PANNA
and the NRDC’s petition for further mandamus relief
because it was premised on the ground that the 2017 Order
failed to meet the requirements for a final order. Rejecting
that view and finding that the 2017 Order was a final denial
of the 2007 Petition, this Court instructed PANNA and the
NRDC that “[f]iling objections and awaiting their resolution
by the EPA Administrator is a prerequisite to obtaining
LULAC V. WHEELER 25
judicial review of [the] EPA’s final response to the petition.
Only at that point may we consider the merits of [the] EPA’s
final agency action.” In re PANNA, 863 F.3d at 1133. Aside
from the fact that none of this language spoke to the
jurisdictional issue but only to the issue of exhaustion, the
instant appeal is clearly in a different posture. In compliance
with our prior ruling, petitioners filed their objections, but
the EPA has failed to issue a timely (g)(2)(c) order in
response.
In sum, we hold that § 346a(h)(1) is not jurisdictional. It
contains no jurisdictional label, is structured as a limitation
on the parties rather than the courts, and only references an
exhaustion process that is outlined in a separate section of
the statute.
B. Exhaustion
Where, as here, exhaustion of administrative remedies is
not jurisdictional, we “must determine whether to excuse the
faulty exhaustion and reach the merits, or require the
petitioner to exhaust . . . administrative remedies before
proceeding in court.” Rivera v. Ashcroft, 394 F.3d 1129,
1139 (9th Cir. 2004), superseded by statute on other grounds
as stated in Iasu v. Smith, 511 F.3d 881, 886 (9th Cir. 2007).
“In determining whether exhaustion is required, federal
courts must balance the interest of the individual in retaining
prompt access to a federal judicial forum against
countervailing institutional interests favoring exhaustion.”
McCarthy v. Madigan, 503 U.S. 140, 146 (1992),
superseded by statute on other grounds as stated in Booth,
532 U.S. 731.
The Supreme Court has identified the two key
institutional interests favoring exhaustion as “the twin
purposes of protecting administrative agency authority and
26 LULAC V. WHEELER
promoting judicial efficiency.” Id. at 145. Not all cases
implicate these interests to an equal degree. Exhaustion
protects an agency’s authority “when the action under
review involves exercise of the agency’s discretionary
power or when the agency proceedings in question allow the
agency to apply its special expertise.” Id. Exhaustion also
protects an agency’s authority by providing the agency “an
opportunity to correct its own mistakes with respect to the
programs it administers.” Woodford v. Ngo, 548 U.S. 81, 89
(2006). “[E]xhaustion principles apply with special force
when frequent and deliberate flouting of administrative
processes could weaken an agency’s effectiveness by
encouraging disregard of its procedures.” McCarthy,
503 U.S. at 145.
The institutional interest in requiring exhaustion to
protect agency authority appears particularly weak in the
present case. The challenged action, permitting the use of
chlorpyrifos on food products, does not involve exercise of
the EPA’s general discretion, but must take place in
compliance with strict statutory directives. The questions
presented in this appeal are in no way factual or procedural
questions implicating the agency’s “special expertise.” This
is not a situation, for example, where the EPA determined a
pesticide was safe and the science underlying that
determination is challenged. Rather, the purely legal
questions here concern the statutory requirements of the
FFDCA, and, accordingly, are suited to judicial
determination. The crux of petitioners’ challenge is that the
EPA has found that chlorpyrifos is not safe and therefore
cannot maintain a tolerance for it.
Allowing the petition to proceed would not reward
failure to properly exhaust administrative remedies. “Proper
exhaustion demands compliance with an agency’s deadlines
LULAC V. WHEELER 27
and other critical procedural rules because no adjudicative
system can function effectively without imposing some
orderly structure on the course of its proceedings.”
Woodford, 548 U.S. at 90–91.
Here, petitioners timely submitted objections to the order
denying the 2007 petition to revoke tolerances, fulfilling all
of their exhaustion obligations except for the one not within
their control—obtaining the EPA’s response to the
objections. Petitioners’ objections were filed 13 months ago,
and the key issue therein—whether the EPA was statutorily
obligated to revoke the tolerance for chlorpyrifos—was first
raised to the EPA over a decade ago in the 2007 Petition.
This timeline has provided the EPA more than ample
opportunity to correct any mistakes on its own. But, despite
the statutory requirement that the EPA respond to the
objections “as soon as practicable,” it has failed to do so. The
history of this litigation supports the inference that the EPA
is engaging in yet more delay tactics to avoid our reaching
the merits of the sole statutory issue raised here: whether
chlorpyrifos must be banned from use on food products
because the EPA has not determined that there is a
“reasonable certainty” that no harm will result from its use,
even under the established tolerances.
The second institutional interest identified by the
Supreme Court as potentially favoring exhaustion, judicial
economy, counsels against requiring further administrative
exhaustion in this instance. Exhaustion offers the greatest
support for judicial efficiency where it either permits the
agency to “correct its own errors” such that the “judicial
controversy may well be mooted, or at least piecemeal
appeals may be avoided,” or where administrative review
“may produce a useful record for subsequent judicial
consideration, especially in a complex or technical factual
28 LULAC V. WHEELER
context.” McCarthy, 503 U.S. at 145. Here, it is just the
opposite. Since 2012, we have issued five separate decisions
related to the EPA’s inaction on the chlorpyrifos tolerances.
Declining to waive exhaustion at this point would make this
our sixth decision on the matter without once reaching the
merits, setting the stage for yet another “piecemeal appeal[]”
if the EPA should someday issue a response to the
petitioners’ objection—something the EPA itself has
strongly hinted may not come about until 2022, if then.
Similarly, further development of the administrative record
is of no use to judicial efficiency at this point in the
proceedings; there are no factual questions, let alone
“complex or technical” ones, at issue—only legal questions.
And on the merits of these legal questions, the EPA offers
no defense of its inaction, effectively conceding its
lawlessness.
While both institutional interests favoring exhaustion are
weak, this petition invokes two of the “three broad sets of
circumstances in which the interests of the individual weigh
heavily against requiring administrative exhaustion.”
McCarthy, 503 U.S. at 146. First, the Supreme Court has
recognized that exhaustion may be excused where “requiring
resort to the administrative remedy may occasion undue
prejudice to subsequent assertion of a court action. Such
prejudice may result, for example, from an unreasonable or
indefinite timeframe for administrative action.” Id. at 146–
47. Most often, an administrative remedy is deemed
inadequate “because of delay by the agency.” Id. Here, the
EPA’s expressed intent to withhold action for years to come
is “unreasonable” as applied here, especially as petitioners’
objections concern no factual issues that would require
additional time to investigate. The EPA has had over a year
to respond to the objections already, with no result.
LULAC V. WHEELER 29
In Coit Independence Joint Venture v. Federal Savings
& Loan Insurance, 489 U.S. 561, 586–87 (1989), the
Supreme Court held that a claimant was not required to wait
for a decision on its administrative appeal before seeking
judicial review where the administrative appeal had been
pending for over 13 months as of the date of oral argument,
and there was no “clear and reasonable time limit on [the
agency’s] consideration of . . . claims.” See also Smith v. Ill.
Bell Tel. Co., 270 U.S. 587, 591–92 (1926) (holding that a
claimant “is not required indefinitely to await a decision of
the [administrative] tribunal before applying to a federal
court for equitable relief”). Like the regulation evaluated in
Coit, the EPA’s interpretation of the FFDCA’s
administrative review provision as providing limitless time
to respond to objections would give the agency “virtually
unlimited discretion to bury large claims like [petitioners’]
in the administrative process, and to stay judicial
proceedings for an unconscionably long period of time.”
Coit, 489 U.S. at 586. The delay is particularly prejudicial
here where the continued use of chlorpyrifos is associated
with severe and irreversible health effects. See Bowen v. City
of New York, 476 U.S. 467, 483 (1986) (concluding that
disability-benefit claimants “would be irreparably injured
were the exhaustion requirement now enforced against
them”); Aircraft & Diesel Equip. Corp. v. Hirsch, 331 U.S.
752, 773 (1947) (directing consideration of “irreparable
injury flowing from delay incident to following the
prescribed procedure” in determining whether to require
exhaustion). Petitioners have been waiting over a year for
EPA action on their objections, and over eleven years for an
EPA decision on chlorpyrifos tolerances, while being
30 LULAC V. WHEELER
continually exposed to the chemical’s effects. This is a
sufficient basis to waive or otherwise excuse exhaustion. 2
In light of the strong individual interests against
requiring exhaustion and weak institutional interests in favor
of it, we conclude that petitioners need not exhaust their
administrative objections and are not precluded from raising
before us the issues at hand on the merits. 3
C. The Merits
We now turn to the merits. Petitioners argue that the
EPA’s decision in its 2017 order to maintain a tolerance for
chlorpyrifos in the face of scientific evidence that its residue
on food causes neurodevelopmental damage to children is
flatly inconsistent with the FFDCA. Specifically, petitioners
argue that a need for additional scientific research is not a
valid ground for maintaining a tolerance that, after nearly
two decades of studies, has not been determined safe to “a
reasonable certainty,” and that the EPA cannot delay a
decision on tolerances to coordinate that decision with
registration review under FIFRA.
The EPA presents no arguments in defense of its
decision. Accordingly, the EPA has forfeited any merits-
2
Exhaustion may also be excused where “the administrative body is
shown to be biased or has otherwise predetermined the issue before it.”
McCarthy, 503 U.S. at 148. The history detailed above strongly suggests
that the EPA, for whatever reason, has decided not to ban chlorpyrifos
under any circumstances, even when its own internal studies show that
it could not possibly make the factual findings necessary to avoid a ban.
3
Because we find judicial review available under § 346a(h)(1), we
will not address petitioners’ alternative argument that judicial review is
available under FIFRA, 7 U.S.C. § 136n(b).
LULAC V. WHEELER 31
based argument. See Martinez v. Sessions, 873 F.3d 655,
660 (9th Cir. 2017).
The FFDCA states unequivocally that the Administrator
“shall modify or revoke a tolerance if the Administrator
determines it is not safe.” § 346a(b)(2)(A)(i). A tolerance is
safe when “the Administrator has determined that there is a
reasonable certainty that no harm will result from aggregate
exposure to the pesticide, including all anticipated dietary
exposures and all other exposures for which there is reliable
information.” § 346a(b)(2)(A)(ii) (emphasis added).
Accordingly, the EPA bears a continuing obligation to
revoke tolerances that it can no longer find with a
“reasonable certainty” are safe.
The EPA’s 2016 risk assessment concluded that its
analysis of chlorpyrifos “continues to indicate that the risk
from potential aggregate exposure does not meet the FFDCA
safety standard” and that “expected residues of chlorpyrifos
on most individual food crops exceed the ‘reasonable
certainty of no harm’ safety standard.” This finding was the
EPA’s final safety determination before the 2017 EPA
Order. The 2017 Order declined to revoke chlorpyrifos
tolerances but did not make a finding of reasonable certainty
that the tolerances were safe. Instead, it found “significant
uncertainty” as to the health effects of chlorpyrifos, which is
at odds with a finding of “reasonable certainty” of safety
under § 346a(b)(2)(A)(ii) and therefore mandates revoking
the tolerance under § 346a(b)(2)(A)(i).
“[H]owever desirable it may be for [the] EPA to consult
[a Scientific Advisory Board] and even to revise its
conclusion in the future, that is no reason for acting against
its own science findings in the meantime.” Chlorine
Chemistry Council v. EPA, 206 F.3d 1286, 1290 (D.C. Cir.
2000). The EPA cannot refuse to act “because of the
32 LULAC V. WHEELER
possibility of contradiction in the future by evidence
unavailable at the time of action – a possibility that will
always be present.” Id. at 1290–91 (emphasis in original).
Chlorpyrifos similarly does not meet the statutory
requirement for registration under FIFRA, which
incorporates the FFDCA’s safety standard. As we have
previously counseled, “evidence may be imperfect [and] the
feasibility inquiry is formidable,” but there remains no
justification for the “EPA’s continued failure to respond to
the pressing health concerns presented by chlorpyrifos,”
which has now placed the agency in direct contravention of
the FFDCA and FIFRA. In re PANNA, 840 F.3d at 105.
Accordingly, we GRANT the petition for review. The
EPA’s 2017 Order maintaining chlorpyrifos is VACATED,
and the case is remanded to the EPA with directions to
revoke all tolerances and cancel all registrations for
chlorpyrifos within 60 days.
FERNANDEZ, Circuit Judge, dissenting:
League of United Latin American Citizens, Pesticide
Action Network North America (PANNA), Natural
Resources Defense Council (NRDC), California Rural Legal
Assistance Foundation, Farmworkers Association of
Florida, Farmworker Justice GreenLatinos, Labor Council
for Latin American Advancement, Learning Disabilities
Association of America, National Hispanic Medical
Association, Pineros Y Campesinos Unidos del Noroeste,
and United Farm Workers (collectively, “LULAC”) petition
for review of the Environmental Protection Agency’s (EPA)
2017 order denying a 2007 petition to revoke all tolerances
for the pesticide chlorpyrifos (hereafter “the Pesticide”). See
Chlorpyrifos; Order Denying PANNA and NRDC’s Petition
LULAC V. WHEELER 33
to Revoke Tolerances, 82 Fed. Reg. 16,581, 16,583 (Apr. 5,
2017) (the “2017 Order”). 1 In the briefs (not in the petition
for review), LULAC and the States ask for a writ of
mandamus ordering EPA to respond to the objections they
filed to the 2017 Order. In their brief, the States also ask for
a writ of mandamus compelling the EPA to issue a final rule
revoking chlorpyrifos tolerances.
The EPA regulates the use of pesticides on food pursuant
to the Federal Food, Drug, and Cosmetic Act 2 (FFDCA) and
the Federal Insecticide, Fungicide and Rodenticide Act
(FIFRA). 3 At present, the Pesticide is registered as an
insecticide for food crops and non-food settings. In the view
of LULAC and the States, the Pesticide is unsafe 4 and the
EPA should modify or revoke the tolerances it has
established for the Pesticide pursuant to FFDCA. See
21 U.S.C. § 346a(a)(1)(A), (b)(1). For that matter, they
believe that the EPA should cancel the Pesticide’s
registration for food crops under FIFRA. See 7 U.S.C.
§ 136a(g)(1)(A)(v). In September 2007, PANNA and
NRDC filed an administrative petition with the EPA seeking
revocation of the Pesticide’s FFDCA food tolerances and
cancellation of its FIFRA registrations (the 2007 Petition).
On April 5, 2017, the EPA issued the 2017 Order in which it
denied the 2007 Petition. See 82 Fed. Reg. at 16,581.
1
The States of New York, Maryland, Vermont, Washington,
California, and Hawaii, as well as the Commonwealth of Massachusetts
and the District of Columbia (collectively, “the States”), are Intervenors
in support of LULAC’s petition.
2
21 U.S.C. §§ 301–399g.
3
7 U.S.C. §§ 136–136y.
4
See 21 U.S.C. § 346a(a)(1).
34 LULAC V. WHEELER
LULAC and certain states filed objections to the 2017 Order
on June 5, 2017, and on that same date, LULAC filed the
instant petition for review of the merits of the 2017 Order.
JURISDICTION
The majority holds that we have jurisdiction over the
petition for review. I disagree. Of course, we do have
jurisdiction to determine whether we have jurisdiction over
the petition for review. See Special Invs. Inc. v. Aero Air
Inc., 360 F.3d 989, 992 (9th Cir. 2004). Nonetheless, “‘[w]e
presume that federal courts lack jurisdiction unless the
contrary appears affirmatively from the record.’”
DaimlerChrysler Corp. v. Cuno, 547 U.S. 332, 342 n.3, 126
S. Ct. 1854, 1861 n.3, 164 L. Ed. 2d 589 (2006). Thus, “the
party asserting federal jurisdiction . . . has the burden of
establishing it.” Id. Here LULAC 5 attempts to meet that
burden by pointing to the judicial review provisions of
FFDCA. See 21 U.S.C. § 346a(h). 6 It also relies on FIFRA.
See 7 U.S.C. § 136n(b). The States also point to 5 U.S.C.
§§ 704, 706 as a possible source of jurisdiction. In my view,
all of those attempts fail. Hence I would dismiss the petition.
A. Jurisdiction Under FFDCA
The 2017 Order was issued pursuant to
§ 346a(d)(4)(A)(iii). In seeking to obtain FFDCA
jurisdiction, LULAC relies upon § 346a(h)(1) which, as
pertinent here, provides that:
5
What I determine hereafter regarding LULAC also applies to the
States unless otherwise indicated.
6
Hereafter, all references to § 346a are to 21 U.S.C. § 346a.
LULAC V. WHEELER 35
In a case of actual controversy as to the
validity of . . . any order issued under
subsection . . . (g)(2)(C) [of this section], . . .
any person who will be adversely affected by
such order . . . may obtain judicial review by
filing in the United States Court of Appeals
for the circuit wherein that person resides or
has its principal place of business . . . a
petition praying that the order . . . be set aside
in whole or in part.
Unfortunately for LULAC’s argument, the subsection
referred to in the above quotation from § 346a(h)(1) is the
subsection that provides for the EPA to issue an order
following objections to a previous order of the EPA and that
agency’s processing of those objections. See § 346a(g)(2).
That, by the way, is the process to which we pointed the
parties in our earlier consideration of the EPA’s proceedings
regarding the Pesticide and stated that only after the review
was completed “may we consider the merits of EPA’s ‘final
agency action.’” Nat. Res. Def. Council, Inc. v. U.S. EPA (In
re PANNA), 863 F.3d 1131, 1133 (9th Cir. 2017).
Specifically, § 346a(g)(2)(A) provides that a person may file
objections to an order issued under § 346a(d)(4), as the 2017
Order was. The EPA may then hold a public evidentiary
hearing upon request or upon its own initiative. See
§ 346a(g)(2)(B). An appropriate “order stating the action
taken upon each such objection and setting forth any revision
to the . . . prior order” must then be issued. Id. at (C).
Pursuant to the plain reading of the above subsection taken
36 LULAC V. WHEELER
as a whole, 7 then, and only then, can judicial review in this
court be sought pursuant to § 346a(h)(1).
But, says LULAC, the requirement is no more than a
claim-processing rule 8 rather than a true jurisdictional rule. 9
The majority agrees; I am not convinced. Here Congress
was very careful and very specific about the class of cases—
the limited kind of orders—over which it wished to give the
courts of appeals direct review. It made it plain that we could
not review the EPA’s actions in this specific area until the
agency had developed and considered a full record regarding
objections and the like. Before that occurred, judicial review
was not available; we had no authority whatsoever to
consider the issue. As the Second Circuit Court of Appeals
has pointed out, § 346a(h)(1) is “unique in that it only
commits certain specific agency actions to appellate court
review.” Nat. Res. Def. Council v. Johnson, 461 F.3d 164,
172 (2d Cir. 2006). In light of that careful restriction on
judicial review, it is not at all likely that Congress would
7
See Nuclear Info. & Res. Serv. v. U.S. Dep’t of Transp. Research
& Special Programs Admin., 457 F.3d 956, 960 (9th Cir. 2006).
8
See Henderson ex rel. Henderson v. Shinseki, 562 U.S. 428, 435,
131 S. Ct. 1197, 1203, 179 L. Ed. 2d 159 (2011) (claim-processing rules
merely “seek to promote the orderly progress of litigation by requiring
that the parties take certain procedural steps at certain specified times”).
9
“‘Jurisdiction’ refers to ‘a court’s adjudicatory authority.’” Reed
Elsevier, Inc. v. Muchnick, 559 U.S. 154, 160, 130 S. Ct. 1237, 1243,
176 L. Ed. 2d 18 (2010). “Accordingly, the term ‘jurisdictional’ properly
applies only to ‘prescriptions delineating the classes of cases (subject-
matter jurisdiction) . . .’ implicating that authority.” Id. at 160–61, 13 S.
Ct. at 1243; see also Payne v. Peninsula Sch. Dist., 653 F.3d 863, 868
(9th Cir. 2011) (en banc), overruled on other grounds by Albino v. Baca,
747 F.3d 1162, 1171 (9th Cir. 2014) (en banc).
LULAC V. WHEELER 37
have authorized our seizing jurisdiction before the specific
agency action was concluded. Lest there be any doubt,
Congress also precluded possible bypassing of the
§ 346a(g)(2) provisions when it directed that no “judicial
review under any other provision of law” would be
permitted. Section 346a(h)(5); see also Johnson, 461 F.3d
at 172–74. And that is further emphasized by the fact that
the section does not speak in general language of finality or
exhaustion; 10 it, rather, states specifically when we can
assume review authority over the particular matters. Had
Congress contemplated appellate court review before the
EPA completed the process required by § 346a(g)(2)(C), it
could easily have inserted orders under § 346a(d)(4), or,
more specifically, § 346a(d)(4)(A)(iii) into the judicial
review provisions of § 346a(h)(1), which, of course, it did
not do. Rather, it expressly allowed judicial review only
over the agency’s ruling on objections that had to be filed
with the agency, and not before. See Gallo Cattle Co. v. U.S.
Dep’t of Agric., 159 F.3d 1194, 1197–98 (9th Cir. 1998); see
also McBride Cotton & Cattle Corp. v. Veneman, 290 F.3d
973, 979–80 (9th Cir. 2002) (discussing Gallo Cattle). That
is particularly telling because earlier iterations of the review
provisions contained no such jurisdictional limitations. See
Nat’l Coal. Against the Misuse of Pesticides v. Thomas,
809 F.2d 875, 878–79 (D.C. Cir. 1987).
In short, I see no basis for deconstructing that carefully
constructed jurisdictional scheme and thereby inviting
10
Cf. Anderson v. Babbitt, 230 F.3d 1158, 1162 (9th Cir. 2000);
Rumbles v. Hill, 182 F.3d 1064, 1067 (9th Cir. 1999).
38 LULAC V. WHEELER
premature attacks on matters committed to the expertise of
the agency in the first instance. 11
B. Jurisdiction under FIFRA
LULAC then argues that because it not only asked for
the EPA to revoke all tolerances for the Pesticide but also
asked the EPA to cancel all registrations for the Pesticide,
the 2007 Petition to the EPA arose under both the FFDCA
and FIFRA. Thus, it argues, it need not abide by the FFDCA
review provisions, but can rely on the jurisdictional
provisions of the FIFRA to establish our jurisdiction. See
7 U.S.C. § 136n(b). I do not agree.
Rather, I am persuaded by the cogent reasoning of the
Second Circuit Court of Appeals in a strongly similar
situation. See Johnson, 461 F.3d at 176. In that case,
pursuant to the FFDCA provisions, NRDC also challenged
the EPA’s setting of tolerances for residues on food of five
pesticides (not including the Pesticide). Id. at 169–70.
NRDC added that their registration should be cancelled
pursuant to FIFRA. Id. at 176. NRDC had brought its action
in the district court, and on appeal the Second Circuit
determined that the district court did not have jurisdiction to
review the EPA determination under the FFDCA because, as
§ 346(a)(h)(1), (5) provide, jurisdiction over those claims
was limited to the courts of appeals. Id. at 172–76. NRDC
11
Because the completion of the administrative process is
jurisdictional, I do not consider LULAC’s fallback argument that it
would be futile to pursue the prescribed process. See Sun v. Ashcroft,
370 F.3d 932, 941 (9th Cir. 2004); see also Ross v. Blake, __ U.S. __,
__, 136 S. Ct. 1850, 1857, 195 L. Ed. 2d 117 (2016); Gallo Cattle,
159 F.3d at 1197.
LULAC V. WHEELER 39
then argued that the district court still had jurisdiction
pursuant to FIFRA. The court replied:
However, FIFRA’s grant of jurisdiction to
the district courts is irrelevant. The NRDC
Appellants “challenge the registration of
pesticides under FIFRA only through their
challenge to the tolerances set under the
[F]FDCA.” Essentially, therefore, the
violations of FIFRA alleged by the NRDC
Appellants “amount to challenges to the
methodologies used in reaching the
reassessment determinations at issue” in this
case. As such, these challenges represent an
“issue as to which review is or was obtainable
under Section 346a(h). Section 346a(h)(5)
precludes judicial review of these issues
“under any other provision of law.” The
NRDC Appellants’ attempt to find
independent jurisdiction for their claims
under FIFRA is thus precluded by the express
language of § 346a(h)(5). The NRDC
Appellants’ claims are reviewable only in the
courts of appeals, and only after they have
exhausted the statutory provisions for
administrative review.
Id. at 176 (citations omitted).
I accept that reasoning and the same reasoning should
apply here. It would foreclose LULAC’s argument.
LULAC essentially argues that the EPA has erred in
maintaining tolerances for the Pesticide, which is an unsafe
insecticide, and for that same reason it argues that the EPA
must forthwith revoke registration of the Pesticide. It argues
40 LULAC V. WHEELER
that it should not have to wait for the EPA to rule on its
registration claim, but that is just an allotrope of its central
arguments against waiting for relief under the FFDCA
tolerances provision with which its FIFRA argument is
“inextricably intertwined.” See Ctr. for Biological Diversity
v. U.S. EPA, 847 F.3d 1075, 1089 (9th Cir. 2017).
Therefore, the FIFRA provision does not offer a way to
avoid the judicial review provisions of the FFDCA in this
instance.
Thus, I would dismiss the petition for review for lack of
jurisdiction. 12
WRIT OF MANDAMUS
In its briefs, LULAC asks us to issue a writ of
mandamus 13 directing that the EPA respond to its objections
within sixty days. However, LULAC did not file a petition
for issuance of that writ and, therefore, made no attempt to
comply with the Federal Rules of Appellate Procedure when
it filed its petition for review of the merits of the 2017 Order.
See Fed. R. App. P. 21(a), (c); see also Fed. R. App. P. 20. I
see no reason to treat LULAC’s petition for review as, in
fact, one for a writ of mandamus. It was not, and could not
have been, a mere instance of mislabeling a request for relief
that was sought. Had LULAC intended to seek a writ of
12
I do not overlook the States’ argument regarding 5 U.S.C. §§ 704,
706 (the Administrative Procedure Act provisions). But those provisions
do not confer direct review jurisdiction upon this court. See Gallo Cattle,
159 F.3d at 1198; see also Califano v. Sanders, 430 U.S. 99, 106–07, 97
S. Ct. 980, 985, 51 L. Ed. 2d 192 (1977). Therefore, they add nothing of
substance to the petition for review issues now before us.
13
See 28 U.S.C. § 1651(a); see also Cal. Cmtys. Against Toxics v.
U.S. EPA (In re A Cmty. Voice), 878 F.3d 779, 783 (9th Cir. 2017).
LULAC V. WHEELER 41
mandamus, rather than a merits review, that would have
been most peculiar because on that same day LULAC had
just filed its objections to the 2017 Order. It could not
honestly complain about delay in considering its objections
at that point. Were I to decide otherwise, I would essentially
ignore our holding, which was handed down after this
petition for review was filed, but before the briefs were filed,
and which declared that PANNA and NRDC must file their
objections and await resolution of those objections by the
EPA before we would consider the merits of the EPA’s
actions regarding the Pesticide. See Nat. Res. Def. Council,
863 F.3d at 1133.
Thus, this case is quite unlike cases where we decided
that a party improperly sought to appeal an interim
procedural order rather than a decision on the merits of a
case, but we also considered whether we should construe the
appeal as a petition for a writ of mandamus. See Kum Tat
Ltd. v. Linden Ox Pasture, LLC, 845 F.3d 979, 983 (9th Cir.
2017) (discussing order denying arbitration request);
Johnson v. Consumerinfo.com, Inc., 745 F.3d 1019, 1023 &
n.2 (9th Cir. 2014) (discussing order compelling arbitration
and staying judicial proceedings); see also United States v.
Davis, 953 F.2d 1482, 1497–98 (10th Cir. 1992) (dismissing
request for mandamus by defense counsel in criminal
conviction appeal where no petition had been filed); EEOC
v. Neches Butane Prods. Co., 704 F.2d 144, 146, 151–52
(5th Cir. 1983) (denying request that an appeal from a stay
of proceedings pending compliance with discovery orders be
treated as a mandamus petition where requesting party was
represented by competent counsel and should have filed a
petition therefor); Jones & Guerrero Co., Inc. v. Sealift
Pac., 650 F.2d 1072, 1073–74 (9th Cir. 1981) (per curiam)
(refusing to construe appeal from order remanding case to
42 LULAC V. WHEELER
Guam Superior Court as a petition for mandamus where no
mandamus petition filed).
In short, I would decline to treat LULAC’s petition as
one for a writ of mandamus. Of course, I express no opinion
on whether or when LULAC can or should file a petition for
a writ of mandamus because LULAC deems the EPA’s
consideration of the objections to have been unduly delayed.
See PANNA v. U.S. EPA (In re PANNA), 798 F.3d 809, 813
(9th Cir. 2015); Telecomms. Research & Action Ctr. v. FCC,
750 F.2d 70, 80 (D.C. Cir. 1984).
Thus, I respectfully dissent from parts A and B of the
Discussion in the majority opinion. As a result, I do not
decide the issue in part C although I do find the discussion
therein does have some persuasive value.