940 F.3d 1126
9th Cir.2019Background
- LULAC and allied organizations challenged EPA’s 2017 "Initial Denial Order" that denied a 2007 petition to revoke chlorpyrifos tolerances.
- A three-judge panel in LULAC I held it had jurisdiction and granted the petition for review; a dissent argued the Initial Denial was not a final agency action.
- The en banc court construed LULAC’s opening brief as a request for a writ of mandamus and ordered EPA to issue a full and final decision within 90 days.
- EPA issued a "Final Denial Order" on July 24, 2019; petitioners then filed new petitions challenging that Final Denial (LULAC II and New York).
- The en banc court granted EPA’s motion to dismiss the original LULAC I petition as moot, accepted LULAC II and New York as "comeback cases," and referred them to the original three-judge panel.
- Judge Bea (joined by Judge Bennett) dissented, arguing the new petitions did not involve substantially the same issues and thus should not have been treated as comeback cases or assigned to the original panel.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Jurisdiction to review the 2017 Initial Denial Order | LULAC: court had jurisdiction; petition could be construed to obtain mandamus relief | EPA: Initial Denial was not a final agency action, so no statutory review jurisdiction | En banc did not decide merits; construed petition as mandamus, ordered EPA to issue a final decision; later dismissed original petition as moot after EPA issued final order |
| Mootness after EPA issued Final Denial Order | LULAC sought leave to amend to add review of Final Denial | EPA: issuance of Final Denial moots challenge to the Initial Denial | EPA’s motion to dismiss LULAC I granted as moot; cross-motions to amend/consolidate denied as moot |
| Use of "comeback case" procedure for new petitions (LULAC II, New York) | Petitioners/States: new petitions arise from related proceedings and should be treated as comeback cases and referred to original panel | Dissent (Bea): new petitions raise different issues; no special insight from prior en banc; should be randomly assigned | Majority accepted LULAC II and New York as comeback cases and referred them to the three-judge panel; dissent would have declined that route |
| Consolidation and caption motions | Petitioners/intervenors sought consolidation and minor caption corrections | EPA did not oppose caption correction; consolidation with LULAC I unnecessary after mootness | Consolidation of LULAC II and New York granted; consolidation with LULAC I denied as moot; caption correction granted; related motions denied as moot |
Key Cases Cited
- LULAC v. Wheeler, 899 F.3d 814 (9th Cir. 2018) (panel opinion addressing jurisdictional challenge to EPA’s Initial Denial and the mandamus-related posture)
- Special Invs. Inc. v. Aero Air Inc., 360 F.3d 989 (9th Cir. 2004) (federal courts retain jurisdiction to determine whether they have jurisdiction)