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Love v. Thomas

ELR Citation: 18 ELR 20368
Nos. No. 87-3866, 858 F.2d 1347/27 ERC 1258/(9th Cir., 01/29/1988) Aff'd in part, rev'd in part, & remanded

The court invalidates the Environmental Protection Agency's (EPA's) emergency suspension of the pesticide dinoseb, and rules that §6(c)(4) of the Federal Insecticide, Fungicide, and Rodenticide Act (FIFRA) authorizes district court review of an emergency suspension order even where an administrative hearing has been waived. In 1986, EPA issued an emergency suspension order for the pesticide dinoseb. Four registrant users requested an administrative hearing to review the order, but withdrew their request prior to the hearing. Plaintiff nonregistrant users of dinoseb, who are not permitted under FIFRA to initiate an expedited administrative hearing on a suspension order, petitioned EPA for reconsideration of the suspension. Following denial of their petition, plaintiffs sought review of the suspension order under FIFRA §6(c)(4). The district court issued a partial stay of the suspension. The court first rules that a registrant's withdrawal of a request for an administrative hearing to review a suspension order is the functional equivalent under FIFRA §6(c)(2) of no request. Therefore, the court holds that the district court could not have asserted jurisdiction to review EPA's emergency suspension of dinoseb on the grounds that a hearing was timely requested.

The court next rules that §6(c)(4) allows district court review of emergency suspensions even if no request for an administrative hearing has been made. A suspension order does not become "final," and therefore unreviewable by the district court under §6(c)(4), when the administrative hearing is waived. When no hearing is held, an emergency suspension order remains in effect until cancellation or classification procedures are completed, or a stay is ordered by the district court. Although §6(c)(3), which provides for the issuance of emergency suspension orders, by its terms incorporates the language of §6(c)(2), which bars judicial review of suspensions where the administrative hearing has been waived, §6(c)(2)'s prohibition of judicial review does not apply to emergency orders. Section 6(c)(2) says that judicial review is not available where no hearing has been requested within five days after the registrant's receipt of notification of cancellation, but emergency suspensions do not involve notification. In addition, FIFRA does not provide that the district court can only stay an emergency suspension order where an administrative hearing is waived or concluded; such a provision was actually rejected in the statute's drafting. Moreover, §6(c)(4) provides that district court action may be maintained simultaneously with administrative review, implying that judicial review is possible where administrative review has not been sought. Finally, the court recognizes a presumption in favor of judicial review, and a general rule of strict construction of prohibitions against judicial review. The court holds, therefore, that the district court had jurisdiction under §6(c)(4) to review EPA's emergency suspension of dinoseb.

The court next holds that the district court's factual inquiry beyond the scope of the administrative record was appropriate. There is little administrative record available concerning emergency suspensions. Congress probably recognized this fact when it conferred jurisdiction to review such orders on district courts, which are courts of first instance equipped to consider evidence. In addition, the district court carefully limited the scope of its inquiry to the type of evidence that it could properly take into account in determining whether the agency acted arbitrarily.

The court holds that EPA's emergency suspension order was arbitrary and capricious. The agency relied on poor data and did not adequately consider the availability of alternative pesticides or the economic impact of the suspension, especially with regard to the northwestern United States, which is particularly reliant on dinoseb. The record does not reveal a sufficiently compelling emergency to justify such hasty, uninformed decisionmaking. The court vacates the district court's partial stay, which set detailed conditions for the limited use of dinoseb, because under FIFRA §6(c)(4) the district court was only authorized to let the suspension stand, or to stay its effectiveness. The court remands the case to the district court for a determination of whether to stay the suspension order.

The dissent would rule that the district court has no jurisdiction to review an emergency suspension order where no registrant has timely petitioned for an expedited administrative hearing.

[The district court's opinion is published at 17 ELR 20779. Briefs filed in the Ninth Circuit are digested at ELR PEND. LIT. 65959.]

Counsel for Defendant-Appellant
John A. Bryson
Land and Natural Resources Division
Department of Justice, Washington DC 20530
(202) 633-2740

Counsel for Plaintiffs-Appellees
Susan K. Eggum
McEwan, Gisvold, Rankin & Stewart
1408 Standard Plaza, 1100 SW 6th Ave., Portland OR 97204
(503) 226-7321

Before Anderson and Norris, JJ.