United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT
Argued December 8, 2022 Decided July 21, 2023
No. 20-1441
AMERICAN SOYBEAN ASSOCIATION,
PETITIONER
v.
MICHAEL S. REGAN, ADMINISTRATOR, U.S. ENVIRONMENTAL
PROTECTION AGENCY, ET AL.,
RESPONDENTS
BASF CORPORATION, ET AL.,
INTERVENORS
Consolidated with 20-1445, 20-1484, 22-1048, 22-1050,
22-1067
On Petitions for Review of Final Actions
of the Environmental Protection Agency
Edmund S. Sauer argued the cause for petitioners. With
him on the joint briefs were Kyle W. Robisch, Sarah Gunn, and
Bartholomew J. Kempf.
2
J. Brett Grosko and Andrew D. Knudsen, Attorneys, U.S.
Department of Justice, argued the causes for respondents. With
them on the brief was Todd Kim, Assistant Attorney General.
John C. Cruden, Kathryn E. Szmuskzkovicz, Anthony L.
Michaels, David A. Barker, Philip J. Perry, Richard P. Bress,
Stacey L. VanBelleghem, Karen E. Carr, Donald C. McLean,
and Laura Zell were on the joint brief for intervenors Bayer
CropScience LP, et al. in support of respondents. Andrew D.
Prins entered an appearance.
Before: SRINIVASAN, Chief Judge, PILLARD and RAO,
Circuit Judges.
Opinion for the Court filed by Chief Judge SRINIVASAN.
Concurring opinion filed by Circuit Judge RAO.
SRINIVASAN, Chief Judge: Under the Federal Insecticide,
Fungicide, and Rodenticide Act, review of orders issued by the
Environmental Protection Agency after a “public hearing” lies
exclusively in the courts of appeals. 7 U.S.C. § 136n(b). For
orders issued without a public hearing, review lies in the
district courts. Id. § 136n(a).
Petitioners in this case seek to challenge EPA orders
regulating the use of a pesticide named dicamba. Believing
that EPA issued those orders without holding any “public
hearing,” petitioners brought their challenges in district court.
But as a precautionary measure, they also filed protective
petitions for review in our court. All parties before us agree
that review properly lies in district court rather than our court
because EPA did not hold a “public hearing” before issuing the
challenged orders. We agree as well, and we therefore dismiss
the petitions for lack of jurisdiction.
3
I.
The Federal Insecticide, Fungicide, and Rodenticide Act
(FIFRA) generally precludes the distribution or sale of any
pesticide unless it is “registered” by EPA. Id. § 136a(a). A
FIFRA registration is a license establishing the terms and
conditions under which a pesticide may be lawfully sold,
distributed, and used. Id. § 136a(c)(1)(A)–(F).
Parties seeking registration of a pesticide must submit
specific information to EPA, including supporting data and
proposed labeling. Id. § 136a(c)(1); 40 C.F.R. § 152.50. If a
party applies to register a pesticide containing any new active
ingredient or if the party’s application would entail a changed
use pattern for a pesticide, EPA must publish its receipt of the
application in the Federal Register and provide a public
comment period. 7 U.S.C. § 136a(c)(4). But if an application
does not involve a pesticide with a new active ingredient and
does not request a changed use pattern, EPA is not required to
provide public notice of the application. See id.
EPA must register a pesticide if it meets certain criteria
under FIFRA, including that use of the pesticide as the label
directs “will not generally cause unreasonable adverse effects
on the environment.” Id. § 136a(c)(5). EPA refers to that form
of registration as “unconditional registration.” A “conditional
registration,” on the other hand, occurs when EPA
conditionally registers new uses of an already-registered
pesticide “notwithstanding that data concerning the pesticide
may be insufficient to support an unconditional amendment.”
Id. § 136a(c)(7)(B).
FIFRA provides for judicial review of EPA registration
orders through two routes. When EPA issues an order in
response to a registration application “following a public
4
hearing, any person who will be adversely affected by such
order and who had been a party to the proceedings may obtain
judicial review by filing in the United States court of appeals
for the circuit wherein such person resides or has a place of
business . . . .” Id. § 136n(b). In that situation, the court of
appeals “shall have exclusive jurisdiction to affirm or set aside
the order complained of in whole or in part.” Id. For orders
that do not follow a “public hearing,” FIFRA provides that the
orders are instead initially “reviewable by the district courts of
the United States.” Id. § 136n(a).
II.
A.
Dicamba is an herbicide used to control broadleaf weeds
in crops. Dicamba has been registered under FIFRA since
1967, but its use was initially restricted to application to soil
before crops emerge. In 2015, the Department of Agriculture
authorized the commercial sale of soybean seeds and cotton
seeds that are genetically modified to be tolerant of dicamba.
Businesses then introduced dicamba-based products intended
for use on dicamba-tolerant crops. Those products can be
applied “over the top” of soybean and cotton crops, allowing
farmers to target broadleaf weeds after crops have emerged
from the soil.
EPA later received an application to register three dicamba
products for over-the-top use. Because that use of dicamba
entailed a changed use pattern for the pesticide, EPA, per
FIFRA’s requirements, published notice of its receipt of the
application in the Federal Register and provided a public
comment period. See id. § 136a(c)(4). After the public
comment period, EPA provided notice of its proposed
5
registration decision and solicited an additional round of
comments.
In 2016, EPA issued conditional registrations permitting
over-the-top use of dicamba on dicamba-tolerant soybean and
cotton crops (the “2016 Registrations”). The 2016
Registrations included several use restrictions to prevent
adverse effects to the environment, such as a prohibition on
using the approved dicamba products during periods of high
wind speeds to prevent dicamba from spreading to non-target
crops and wildlife. See Nat’l Fam. Farm Coal. v. EPA, 960
F.3d 1120, 1127 (9th Cir. 2020). EPA set a 2018 expiration
date for the 2016 Registrations.
In 2018, EPA granted applications to renew the 2016
conditional registrations for an additional two years (the “2018
Registrations”). Because the application did not concern a
pesticide with a new active ingredient or propose a new use
pattern, EPA did not publish notice of that application or solicit
public comment on it.
Several parties filed petitions for review of the 2018
Registrations in the Ninth Circuit. See Nat’l Fam. Farm Coal.,
960 F.3d at 1120. The court held that the 2018 Registrations
followed a “public hearing” for purposes of substantiating its
jurisdiction. Id. at 1132. Even though there had been no public
notice or solicitation of comments specifically concerning the
renewal applications giving rise to the 2018 Registrations, the
court reasoned that those registrations followed a “public
hearing” because there had been a notice-and-comment period
before the underlying 2016 Registrations. Id..
On the merits, the court vacated the 2018 Registrations,
concluding that substantial evidence did not support EPA’s
grant of the registrations. Id. at 1145. In the wake of the Ninth
6
Circuit’s decision, EPA issued an order cancelling the 2018
Registrations.
B.
In 2020, EPA received registration applications for over-
the-top use of two dicamba products whose previous approvals
in the 2016 Registrations had been vacated by the Ninth
Circuit’s decision in National Family Farm Coalition. The
agency also received an application to amend and extend a
2019 registration of a separate dicamba product. That 2019
registration was not at issue in National Family Farm
Coalition.
In October 2020, EPA granted the applications,
authorizing all three dicamba products for over-the-top use (the
“2020 Registrations”). Because the applications again did not
involve a new active ingredient or changed use pattern, EPA
did not publish notice of the applications in the Federal
Register or provide an opportunity to submit comments to the
agency. EPA nonetheless received over 120 unsolicited
comments from stakeholders. The stakeholders submitting
unsolicited letters to EPA included the petitioners in this case:
the American Soybean Association and Plains Cotton Growers,
Inc. (the “Growers”), organizations who represent farmers that
grow soybean and cotton, respectively. The companies that
produce the three dicamba products—Bayer CropScience LP,
BASF Corporation, and Syngenta Crop Protection, LLC, all of
whom have intervened in this case—also submitted comments.
The 2020 Registrations, unlike EPA’s previous
registrations of dicamba products, unconditionally registered
the approved dicamba products, even as it retained many of the
mitigation measures included in the 2018 Registrations. Later,
in 2022, EPA amended the 2020 Registrations to further restrict
7
the use of dicamba products in Iowa and Minnesota in response
to reports alleging adverse effects from dicamba use in those
states (the “2022 Amendments”). Like the 2020 Registrations,
the 2022 Amendments were not preceded by public notice or
solicitation of comments from the public.
C.
The Growers filed an action challenging the 2020
Registrations in district court. Complaint for Declaratory &
Injunctive Relief, Am. Soybean Ass’n v. EPA, No. 1:20-cv-
03190-RCL (D.D.C. Nov. 4, 2020). In the event jurisdiction
over those challenges properly lies in the courts of appeals
rather than district court, the Growers also filed protective
petitions for review in our court and the Fifth Circuit. The latter
petitions have been consolidated in our court. We have since
granted the Growers’ motion to amend the petitions pending
before us to include challenges to the 2022 Amendments. (The
district court has stayed the Growers’ action before it pending
our disposition of these petitions. Order, Am. Soybean Ass’n,
No. 1:20-cv-03190-RCL (D.D.C. Sept. 3, 2021), ECF No. 72.)
III.
All parties agree that our court lacks jurisdiction over the
protective petitions for review because the challenged orders
did not follow a “public hearing.” 7 U.S.C. § 136n(b). We
agree with the parties: EPA did not provide public notice
before issuing the challenged registrations, and public notice in
these circumstances is an essential precondition to agency
proceedings being considered a “public hearing.” Jurisdiction
thus properly lies in district court. Id. § 136n(a).
FIFRA makes direct court of appeals review available for
an EPA order issued “following a public hearing,” provided
8
that the action is brought by a party “who will be adversely
affected by such order and who had been a party to the
proceedings” before EPA. Id. § 136n(b). For a proceeding to
be considered a “public hearing” in which anyone “adversely
affected by [a resulting] order” can become “a party to the
proceedings,” the agency must at least provide notice of its
proposed action to the public. Without public notice of the
pending action, the agency’s consideration of it cannot be
considered a “public” hearing—i.e., a proceeding “[o]pen or
available for all” who might wish to participate. Public,
Black’s Law Dictionary (11th ed. 2019); see also United Farm
Workers of Am., AFL-CIO v. Adm’r, EPA, 592 F.3d 1080, 1082
(9th Cir. 2010) (“‘Hearing’ is a familiar term in the legal
process. It identifies elements essential in any fair
proceeding—notice be given of a decision to be made and
presentation to the decisionmaker of the positions of those to
be affected by the decision.”).
FIFRA elsewhere reinforces the understanding that a
“public hearing” is conditioned on the giving of public notice
of the agency’s pending action. In 7 U.S.C. § 136d(b), FIFRA
sets out, among other things, how EPA can cancel the
registration of a pesticide or change its classification. Once
EPA notices intent to do either, its proposed action “shall
become final” unless “the registrant makes the necessary
corrections . . . or . . . a request for a hearing is made by a
person adversely affected by the notice.” 7 U.S.C. § 136d(b).
EPA may also choose at its discretion to hold a hearing. Id.
Section 136d(d), entitled “Public hearings and scientific
review,” details the requirements for that hearing, including
that it “shall be held after due notice.” Id. § 136d(d) (emphasis
added).
In keeping with that understanding, we have exercised
direct review of EPA actions under FIFRA only when the
9
agency provided public notice of its prospective actions to
anyone potentially affected by them. In Center for Biological
Diversity v. EPA, for instance, we directly reviewed EPA
action that followed “three notice and comment periods.” 861
F.3d 174, 187 (D.C. Cir. 2017). Likewise, in Humane Society
of the United States v. EPA, we directly reviewed EPA action
taken after “applications for experimental use permits were
published in the Federal Register, and interested parties were
invited to submit written comments.” 790 F.2d 106, 111–12
(D.C. Cir. 1986) (footnote omitted).
Here, however, because the applications did not involve a
new active ingredient or changed use pattern, EPA did not give
public notice before issuing the 2020 Registrations and the
2022 Amendments. See 7 U.S.C. § 136a(c)(4). Those actions
thus were not preceded by notice-and-comment periods,
publication in the Federal Register, or any other form of notice
to interested parties. But some form of public notice is integral
to the availability of direct court of appeals review because
FIFRA limits such review to petitioners filed by individuals
who were “part[ies] to the proceedings” before the agency. Id.
§ 136n(b). And individuals cannot become “part[ies] to the
proceedings” before EPA unless they are aware of the
proceedings in the first place.
We need not resolve in this case whether, and in what
circumstances, public notice of a pending agency action might
suffice to render the agency’s deliberations a “public hearing”
within the meaning of FIFRA. Rather, because EPA gave no
public notice of its consideration of the challenged actions, we
need decide only whether public notice is necessary to render
an agency proceeding a “public hearing” for purposes of 7
U.S.C. § 136n(b). Our answer to that question is yes.
10
It is true that, notwithstanding the absence of public notice
in this case, dozens of interested parties—including the
Growers and intervenors—submitted unsolicited comments to
EPA in advance of the agency’s issuance of the challenged
orders. Those comments had the effect of providing the agency
with some sort of record to consider before granting the 2020
Registrations and 2022 Amendments. Given that EPA
considered the comments before acting, a party who submitted
unsolicited comments could in some sense be considered a
“party to the proceedings” before the agency. 7 U.S.C.
§ 136n(b). And the administrative record resulting from the
submission and consideration of those comments might be
thought adequate to facilitate meaningful judicial review.
But record adequacy alone does not mean a “public
hearing” took place. Dispensing with any requirement of
public notice based on the perceived adequacy of the record
could preclude affected parties who are not before us—and
who did not participate in (and perhaps were unaware of) the
proceedings before the agency—from obtaining judicial
review in any forum. Such parties would be barred from
seeking review in our court because they would not have been
a “party to the proceedings” before the agency. Id. Nor could
they seek review in district court given that our jurisdiction
would be “exclusive.” Id. No matter the state of the record,
the Congress that conditioned direct court of appeals review of
an EPA order on a “public hearing” presumably did not intend
to preclude an adversely affected party from obtaining judicial
review in any forum even though it may have lacked any notice
of an opportunity to participate in the agency’s pending action.
Our decision in Environmental Defense Fund v. Costle,
631 F.2d 922 (D.C. Cir. 1980), does not compel a different
conclusion. To be sure, we viewed “the existence of an
adequate record” to be a central consideration in the
11
circumstances of that case “in deciding if an order followed a
public hearing” for purposes of determining our jurisdiction
under 7 U.S.C. § 136n(b). Id. at 932. And we concluded that
EPA’s challenged action had followed a public hearing even
though there had been a “lack of public notice” preceding it.
Id. at 927. But Costle involved highly unique circumstances in
which there had been public notice at prior stages of the
administrative process, such that any party affected by the
ultimate challenged action would have had notice and an
opportunity to participate in the proceedings giving rise to it.
In particular, EPA had initiated a proceeding to determine
whether unrestricted use of a pesticide named chlorobenzilate
should continue, and “[w]ritten public participation in the
preliminary notice and comment stage of . . . [the] process was
invited.” Id. at 924. After that proceeding, EPA published a
notice of intent to cancel registration of the pesticide in the
Federal Register. Id. (citing Notice of Intent to Cancel
Registrations and Deny Applications for Registration of
Pesticide Products Containing Chlorobenzilate, 44 Fed. Reg.
9,548 (1979)). The petitioning parties in our court submitted
comments during that notice-and-comment proceeding and
then requested an administrative hearing to challenge the
intended cancellation, which an ALJ denied. Id. at 925–26.
The petitioners administratively appealed the ALJ’s decision
denying their request for an administrative hearing, and EPA
affirmed the ALJ’s decision. Id. We then reviewed EPA’s
refusal to hold an administrative hearing and affirmed that
decision. Id. at 933–39.
The challenged agency action in Costle—EPA’s denial of
the petitioners’ request for an administrative hearing—arose
directly from actions in which EPA had given public notice to
interested parties: a public notice-and-comment proceeding on
whether to maintain the registration of a pesticide and an
12
ensuing public notice of intent to cancel the registration. Even
though EPA did not again provide notice before denying the
petitioners’ request for an administrative hearing to challenge
the intended cancellation, all parties who would have been
adversely affected by that denial necessarily would have been
affected by the subject of the hearing—the intended
cancellation of the pesticide. And because EPA gave public
notice and solicited participation before issuing the intended
cancellation, any affected parties were on notice and had an
opportunity to do what the petitioners did: submit comments,
request a hearing to challenge EPA’s intended cancellation,
and then petition for judicial review of EPA’s denial of that
request. In other words, any such parties could have become
“a party to the proceedings” before EPA and later sought direct
review in a court of appeals because EPA had given public
notice that it intended to cancel the pesticide. 7 U.S.C.
§ 136n(b).
For substantially similar reasons, the Ninth Circuit’s
exercise of jurisdiction in National Family Farm Coalition,
960 F.3d 1120, involved circumstances materially different
from those we face here. The Ninth Circuit there, as noted,
directly reviewed a challenge to the 2018 Registrations, even
though the 2018 Registrations themselves had not been
preceded by public notice. But the 2018 Registrations were a
direct outgrowth of the 2016 Registrations in that they merely
renewed the 2016 Registrations, and the 2016 Registrations
had been preceded by a notice-and-comment period. The Ninth
Circuit “conclude[d] that the 2018 registration decision was
issued by the EPA ‘following a public hearing’” because “the
decision ar[ose] from a notice-and-comment period held prior
to the related 2016 registration decision.” Id. at 1132. That
could also be said of the challenged action in Costle: EPA’s
denial of the petitioners’ request for an administrative hearing
13
in that case directly “arose from” a notice-and-comment period
and subsequent publication in the Federal Register.
The same cannot be said, though, of the 2020 Registrations
and 2022 Amendments at issue here. Those actions, unlike the
challenged orders in Costle and National Family Farm
Coalition, did not arise directly from prior actions as to which
there had been public notice. We thus cannot be certain that all
parties potentially affected by the 2020 Registrations and 2022
Amendments had received notice in advance of those actions.
Although both actions involve dicamba products that had been
approved in the 2018 Registrations, they do not arise from
those registrations or the related 2016 Registrations. Instead,
the 2020 Registrations and 2022 Amendments were the product
of entirely new proceedings. After all, the Ninth Circuit
vacated the 2018 Registrations in National Family Farm
Coalition, and EPA then cancelled them. What is more, the
2020 Registrations were not mere reinstatements of the
previous registrations. Rather, the 2020 Registrations
unconditionally approve the dicamba products, whereas the
previous orders had granted conditional registrations. And
EPA needed to make additional findings to issue an
unconditional registration, including that use of the products
would “not generally cause unreasonable adverse effects on the
environment.” 7 U.S.C. § 136a(c)(5)(D). For those reasons,
the 2020 and 2022 Registrations, unlike the actions in Costle
and National Family Farm Coalition, did not follow a “public
hearing” within the meaning of 7 U.S.C. § 136n(b).
* * * * *
For the foregoing reasons, we dismiss the petitions for
review for lack of jurisdiction.
So ordered.
RAO, Circuit Judge, concurring: The court’s opinion
faithfully applies circuit caselaw, and I join it in full. I write
separately to note that our precedents are inconsistent with the
text of the Federal Insecticide, Fungicide, and Rodenticide Act
(“FIFRA”). FIFRA provides generally for judicial review in
the district court but allows for a direct petition for review in
the court of appeals following a “public hearing.” Our cases
have blurred the clear jurisdictional line drawn by Congress,
accepting petitions for review in a wider and undefined set of
circumstances. By departing from FIFRA’s straightforward
allocation of jurisdiction, we have generated substantial and
wasteful confusion as to where litigants must file. In an
appropriate case, this court should reconsider the issue en banc
to set out a clear rule that is faithful to the statutory text.
***
Section 16 of FIFRA provides for judicial review. In
general, and “[e]xcept as otherwise provided” in the Act, final
actions of the Administrator of the Environmental Protection
Agency (“EPA”) are “judicially reviewable by the district
courts.” Federal Environmental Pesticide Control Act of 1972,
Pub. L. No. 92-516, 86 Stat. 973, 994 (codified as amended at
7 U.S.C. § 136n(a)). FIFRA specifies limited direct review in
the court of appeals: “In the case of actual controversy as to the
validity of any order issued by the Administrator following a
public hearing, any person who will be adversely affected by
such order and who had been a party to the proceedings may”
file a petition for review in the court of appeals. 7 U.S.C.
§ 136n(b).
The phrase “a public hearing,” both on its own terms and
in context, refers to some type of quasi-judicial proceeding
before the agency. A petition for review in the court of appeals
follows “a” hearing, namely a single, discrete proceeding,
2
rather than, for instance, an extended and non-adversarial
period of public comment. Such petitions may be filed only
“[i]n the case of actual controversy” and only by “a party to the
proceedings,” id., requirements that plainly reference some
type of quasi-judicial proceeding over a controversy with
identifiable parties. The public hearings must occur at specified
times, i.e., be actual hearings, with advance notice in the
Federal Register. Id. § 136s(d). Moreover, FIFRA explicitly
provides for district court review over actions “not following a
hearing and other final actions,” confirming that a “hearing” is
the decisive and bright line between ordinary review in the
district courts and a direct petition for review in the courts of
appeals. Id. § 136n(a) (emphasis added).
This jurisdictional line is further confirmed by section 6 of
FIFRA, which describes how “public hearings” operate and
confirms that “hearings” are a type of quasi-judicial
proceeding. When the EPA is considering whether to cancel a
pesticide’s registration or change the pesticide’s classification,
the Administrator must post notice, following which he may
hold a hearing or a “person adversely affected by the notice”
may request a hearing. See id. § 136d(b). Under a subsection
titled “Public hearings and scientific review,” FIFRA specifies
that hearings include “receiving evidence relevant and material
to the issues raised by the objections filed by the applicant or
other interested parties, or to the issues” set forth by the
Administrator in the notice. Id. § 136d(d). The hearings are
conducted by a hearing examiner, who may issue subpoenas
and hear live testimony, all guided by the Federal Rules of Civil
Procedure. Id. If an expedited hearing is requested, it “shall be
held in accordance” with the procedures for adjudication set
out in the Administrative Procedure Act. Id. § 136d(c)(2).
3
The text and structure of FIFRA plainly provide that when
there is an order issued after a “public hearing” that follows the
procedures set out in section 6, parties may petition for review
in the courts of appeals. In all other instances, they must
proceed first in district court.
***
Rather than follow the clear rule established by Congress,
this circuit has expanded our jurisdiction to hear direct petitions
for review by focusing not on the text of FIFRA, but instead on
“legislative history and judicial policy.” Env’t Def. Fund, Inc.
v. Costle, 631 F.2d 922, 927 (D.C. Cir. 1980). In Costle, this
court held that despite a “lack of public notice, [an] absence of
public participation, and [a] lack of any type of oral
presentation by the parties,” a decision by the EPA to deny a
public hearing constituted an order following a public hearing.
Id. at 927–28. The court summarily rejected the notion that
“public hearing” should carry the same meaning in section 16
as it does in section 6. Id. It reached this conclusion despite the
fact that section 6, on public hearings, explicitly cross-
references section 16, on judicial review. See 7 U.S.C.
§ 136d(h). And the Costle court offered no reason from the text
or structure of FIFRA for defying the commonsense
interpretive rule that “[a] word or phrase is presumed to bear
the same meaning throughout a text.” ANTONIN SCALIA &
BRYAN A. GARNER, READING LAW: THE INTERPRETATION OF
LEGAL TEXTS 170 (2012). The court glossed over the statutory
text, relying instead on FIFRA’s legislative history and on
Congress’s purported (but unexpressed) desire to channel cases
to the courts of appeals whenever there is a seemingly adequate
record for judicial review.
4
Subsequent cases have not gone as far as Costle’s
anomalous holding but have held the phrase “public hearing”
at least encompasses any decision following notice and
comment. See Ctr. for Biological Diversity v. EPA, 861 F.3d
174, 187 (D.C. Cir. 2017); Humane Society of U.S. v. EPA, 790
F.2d 106, 111–12 (D.C. Cir. 1986). These holdings also cannot
be squared with the language of FIFRA. As explained above,
the phrase “public hearing,” for the purpose of a petition for
review in a court of appeals, refers to the hearings described in
section 6. Moreover, notice and comment proceedings fit
poorly with the text of section 16, which, as discussed, assumes
the public hearings will be discrete quasi-judicial proceedings
that occur at specific times and with identifiable parties
adversely affected by an order and involved in an “actual
controversy.”
***
Our departure from FIFRA’s text has had serious practical
consequences. Because we have no clear rule as to which
proceedings constitute a “public hearing,” it is common
practice for parties to file a protective petition for review in the
courts of appeals while simultaneously litigating in district
court. Since petitions for review must be filed within 60 days
of the order being challenged, see 7 U.S.C. § 136n(b), this is
the only sensible approach. If litigants guess wrong and do not
file a protective petition, they will almost certainly be time
barred from refiling in the proper forum. See, e.g., United Farm
Workers of Am., AFL-CIO v. EPA, 592 F.3d 1080, 1083 (9th
Cir. 2010). The result is years of unnecessary litigation. The
problem is apparent in this very case. All the parties agree we
lack jurisdiction, yet proceedings in the district court have been
stayed for months pending our resolution of the petition for
review.
5
This state of affairs is wasteful and unnecessary. Costle
rests on an atextual and largely discredited approach to
statutory interpretation that substitutes judicial policymaking
for Congress’s carefully enacted policies. The judicial review
provision of FIFRA imposes a simple, bright-line rule,
directing parties to proceed in district court unless the agency
has held a “hearing” by invoking the procedures set forth in
section 6. In an appropriate case, this court should consider
revisiting en banc the proper interpretation of FIFRA’s judicial
review provisions to align our jurisprudence with the language
of FIFRA and to provide the elementary predictability that
follows from having a clear filing rule.