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League of United Latin American Citizens v. Wheeler

United States Court of Appeals, Ninth Circuit

October 16, 2019

League of United Latin American Citizens; Pesticide Action Network North America; Natural Resources Defense 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,
v.
Andrew Wheeler, Administrator, United States Environmental Protection Agency; U.S. Environmental Protection Agency, Respondents, 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. League of United Latin American Citizens; Pesticide Action Network North America; Natural Resources Defense Council; California Rural Legal Assistance Foundation; Farmworkers Association of Florida; Farmworker Justice; Labor Council for Latin American Advancement; Learning Disabilities Association of America; National Hispanic Medical Association; Pineros y Campesinos Unidos del Noroeste; United Farm Workers; Greenlatinos, Petitioners,
v.
Andrew Wheeler, Administrator, United States Environmental Protection Agency; U.S. Environmental Protection Agency, Respondents. State of New York; State of California; State of Washington; State of Maryland; State of Vermont; Commonwealth of Massachusetts, Petitioners,
v.
Andrew Wheeler, Administrator, United States Environmental Protection Agency; U.S. Environmental Protection Agency, Respondents.

          Environmental Protection Agency No. EPA-HQ-OPP-2007-1005

          Before: Sidney R. Thomas, Chief Judge, and M. Margaret McKeown, Kim McLane Wardlaw, Richard A. Paez, Carlos T. Bea, Morgan Christen, Jacqueline H. Nguyen, Paul J. Watford, John B. Owens, Michelle T. Friedland and Mark J. Bennett, Circuit Judges.

         SUMMARY[*]

         En Banc / Comeback Case

         The en banc court voted to accept petitions filed in League of United Latin American Citizens v. Wheeler, No. 19-71979 ("LULAC II"), and New York v. Wheeler, No. 19-71982, as "comeback cases." The en banc court referred the cases to the three-judge panel that heard League of United Latin American Citizens v. Wheeler, No. 17-71636 ("LULAC I") for resolution on the merits. The en banc court retained jurisdiction over any subsequent en banc hearing arising out of any decision of the three-judge panel.

         The en banc court granted respondents' motion to dismiss LULAC I because the Environmental Protection Agency's issuance of the Final Order Denying Objections to March 2017 Petition Denial Order, 84 Fed. Reg. 35, 555 (Jul. 24, 2019), mooted the petition for review of the Order Denying the Petition to Revoke Tolerances, 82 Fed. Reg. 16, 851 (Apr. 5, 2017).

         Judge Bea, joined by Judge Bennett, dissented from the majority's order to the extent that it accepted as "comeback cases" petitions for review in case nos. 19-71979 and 19-71982, because the cases did not involve substantially the same issues as were properly presented to the en banc court. Judge Bea would assign the new petitions to a random three-judge panel through the normal process.

          ORDER

         We have been notified of the petitions filed in League of United Latin American Citizens v. Wheeler, No. 19-71979 ("LULAC II"), and New York v. Wheeler, No. 19-71982 ("New York"), and have voted to accept those cases as "comeback cases." See Ninth Circuit General Order 3.6(b). Pursuant to our comeback procedures, see id., LULAC II and New York are REFERRED to the three-judge panel that heard League of United Latin American Citizens v. Wheeler, No. 17-71636 ("LULAC I") for resolution on the merits. This en banc panel will retain jurisdiction over any subsequent en banc hearing arising out of any decision of the three-judge panel.

         Respondents' Motion to Dismiss LULAC I (Case No. 17-71636, Dkt. No. 174) is GRANTED because EPA's issuance of the Final Order Denying Objections to March 2017 Petition Denial Order, 84 Fed. Reg. 35, 555 (July 24, 2019) mooted the petition for review of the Order Denying PANNA and NRDC's Petition to Revoke Tolerances, 82 Fed. Reg. 16, 581 (Apr. 5, 2017).

         Petitioners' Cross-Motion for Leave to File Amended Petition for Review (Case No. 17-71636, Dkt. No. 178) and Intervenors' Cross-Motion to Consolidate the Proceeding with a Newly-Filed Petition (Case No. 17-71636, Dkt. No. 177) are DENIED as MOOT.

         The Motion to Consolidate that was filed in New York (No. 19-71982, Dkt. No. 2), which seeks to consolidate all three cases, is DENIED as MOOT as to consolidation with LULAC I and GRANTED as to consolidation between LULAC II and New York. Petitioners' Unopposed Motion to Correct Caption to Include GreenLatinos, which was filed in LULAC II (No. 19-71979, Dkt. No. 2), is GRANTED.

          BEA, Circuit Judge, joined by BENNETT, Circuit Judge, dissenting:

         I respectfully dissent from the majority's order to the extent that it accepts as "comeback cases" petitions for review filed in LULAC v. Wheeler, No. 19-71979 ("LULAC II") and New York v. Wheeler, No. 19-71982 ("New York"), which do not involve substantially the same issues as were properly presented to the en banc panel in this jurisdictionally ...


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