PRICE, District Judge:
These multiple proceedings involve the same factual background. The pesticide dibromochloropropane (DBCP) is used to control nematodes, a soil dwelling, microscopic parasite that feeds on plant root structures. The Petitioner and Appellee, Amvac Chemical Corporation (AMVAC), has been and continues to be a registrant and manufacturer of the pesticide. DBCP is a pesticide that must be registered under the Federal Insecticide, Fungicide, and Rodenticide Act (FIFRA), 7 U.S.C. § 136, et seq., in order to be available for use in the United States. The Respondent and Appellant, Environmental Protection Agency (EPA) administers FIFRA, and has authority to proscribe regulations, and carry out the provisions of the statutes and regulations promulgated pursuant thereto.
Commencing in the summer of 1977, the EPA initiated an inquiry into all pesticide products concerning DBCP. These proceedings resulted in the following agency actions:
1. Notice of Intent to Suspend and Conditionally Suspend Registration of Pesticide products Containing Dibromochloropropane, dated September 8, 1977 (42 Federal Register 48915, September 26, 1977).
2. Notice of Rebuttable Presumption Against Registration and Continued Registration of Pesticide Products Containing Dibromochloropropane, dated September 15, 1977 (42 Federal Register 48026, September 22, 1977).
3. Suspension Order unconditionally suspending the use of DBCP products on 19 food crops, and conditionally suspending the registered use of DBCP on all other crops pending required changes in labels and classification, dated September 27, 1977 (42 Federal Register 57543, November 3, 1977).
4. Notice of Intent to Cancel the Registration or Change the Classification of Pesticide Products Containing Dibromochloropropane and Statement of Reasons, dated October 27, 1977 (42 Federal Register 57544, November 3, 1977).
None of the foregoing actions were preceded by any type of public or private hearing; in the September 15, 1977, Notice of Rebuttable Presumption, EPA invited registrants and other interested parties to submit information concerning the pesticide to the agency.
AMVAC timely filed a request for hearing, a statement of objection in order to preserve its right to contest the proposed unconditional cancellation of the registered uses of DBCP.
Because of its uncertainty as to appropriate review procedures as prescribed by statute, AMVAC proceeded as follows:
1. It filed a petition for review in this court,
2. A petition for review in the District Court for the Central District of California.
EPA's response to the District Court action was a Motion to Dismiss. That motion being denied, EPA sought, and was granted, an Order certifying the District Court's decision for an interlocutory appeal.
Thereafter, both matters were ordered consolidated for a joint hearing in these proceedings.
We only decide the appeal from the District Court order denying EPA's motion to dismiss. For the reasons stated below, we determine that the agency action cancelling the registration of the use of DBCP is not yet ripe for review.
7 U.S.C. § 136n(a) and (b), provide, in pertinent part, as follows:
As indicated above, AMVAC itself was uncertain as to whether primary jurisdiction lay with the District Court or in the Circuit Court to review the agency action at this stage. The agency and the Administrator, on the other hand, contend the issue is clear; that Congress clearly intended that all agency decisions that impinge upon the registration and use of insecticides are to be reviewed in the first instance by the Circuit Courts, save and except agency refusals to cancel or suspend registrations or to change classifications not following a hearing. We find it unnecessary to decide that issue; rather, we determine that the agency action in this matter was procedural in nature-more in the form of a preliminary step to determine the scope of the requested agency hearing.
It is true, as contended by the agency and the Administrator, that Congress did intend to limit review of the agency's administrative decisions issued after hearing to the Circuit Courts. Congress' purposes in adopting this technique can be enumerated as follows: (1) A desire to limit the number of conflicting decisions to the smallest possible number; (2) To obtain finality of decision as rapidly as possible.
Nowhere in the Congressional history does Congress evidence any intent to place the review of procedural disputes in the Circuit Courts, and indeed, specifically provides for review by the District Court of "other final agency actions not committed to agency discretion by law."
Illustrative of the distinction we make is State of Louisiana v. Train, 392 F.Supp. 564 (W.D.La.1975). The State of Louisiana sought an emergency exemption from the EPA which would allow cotton farmers in Louisiana to use DDT to control a feared catastrophic outbreak of tobacco budworm which threatened the 1975 cotton crop in that state. Pursuant to Louisiana's application, the EPA published notice of the application for exemption and set the matter
Further illustrative of the distinction we make here are two cases decided respectively in the United States Circuit Court for the District of Columbia, Environmental Def. F., Inc. v. Environmental Pro. Agcy., 485 F.2d 780 (D.C.1973), and Environmental Def. F., Inc. v. Blum, 458 F.Supp. 650 (D.C. 1978).
In Environmental Def. F., Inc. v. Environmental Pro. Agcy., supra, the order of the administrator banning the use of the pesticide DDT caused a rash of litigation to break out all over the United States. To effectuate the purposes and intent of Congress the Circuit Court immediately took charge of all of the pending cases, and prohibited further proceedings in the District Courts. On the other hand, in Environmental Def. F., Inc. v. Blum, supra, the sole question was adherence by the agency to the statutory rules of administrative procedure, and hence, the District Court accepted jurisdiction and issued appropriate orders for the agency to proceed pursuant to the appropriate sections of the Administrative Practice Act.
Finally, Harrison v. PPG Industries, 446 U.S. 578, 100 S.Ct. 1889, 64 L.Ed.2d 525 (1980), provides an illustrative parallel situation in another part of EPA's administrative domain.
There, the Supreme Court had under consideration a final order of the Administrator pertaining to performance standards of stationary apparatus affecting air pollution. Both sides conceded that the action of the Administrator was "final". The statutory scheme providing for judicial review of administrative action is found in 42 U.S.C. § 7607(b)(1).
There, as here, the affected party, PPG Industries, was uncertain as to the intent of Congress and concurrently filed petitions for review in the Fifth Circuit Court of Appeals as well as a complaint for injunctive relief against the Administrator in the United States District Court for the Western District of Louisiana. Proceedings in the District Court case were stayed pending resolution of the Circuit Court case.
The Fifth Circuit dismissed petitioners petition on the grounds that it had no jurisdiction. (See PPG Industries v. Harrison, 587 F.2d 237.)
Prior to the Clean Air Act amendments of 1977, it was uniformly understood that 28 U.S.C. § 1331(a) conferred jurisdiction on the Federal District Courts to review agency action, and that section conferred jurisdiction on District Courts to review EPA action undertaken pursuant to the Clean Air Act amendments of 1970. However, in 1977, the Congress added the language contained in § 7607(b)(1), supra. The Circuit Court construed this language in a most restrictive way and indicated that the phrase "any other final action of the Administrator" referred only to those orders enumerated in the body of the section itself.
The Supreme Court granted certiorari and reversed stating that the dominant intent
In PPG Industries, supra, unlike the instant case, the administrative action was final; no further hearings or determinations were pending. Although the majority opinion addresses the problem of inadequate administrative records to enable the Circuit Courts to properly perform their function and the remedy available to the Circuit Courts, it should be noted there is no record before this Court, developed by agency hearings on any one of the registered uses of DBCP. That record will not be developed until the scope of the hearing is determined by the final decision on AMVAC's motion to amend.
Subsequent to oral argument in this appeal, the Court of Appeals for the District of Columbia decided Environmental Def. F., Inc. v. Costle, 631 F.2d 922. We have considered it and believe it not to be applicable to the case before us.
First, despite Judge Wilkey's statement to the contrary in Environmental Def. F., Inc. v. Costle, supra, a "hearing" did take place prior to the agency action.
In reading the extensive materials pertaining to the legislative history of this Act, the main thrust of Congress was to have final decisions of the Administrator passed on to the Court of Appeals where there was an adequate administrative record for the Court of Appeals to review the propriety of the action. Such a record, of course, is developed by a "hearing". This is the rationale of the bifurcated judicial review provision enacted by Congress.
In this case, the agency action objected to was not to hold a public hearing on any crop except tomatoes. We hold that a decision not to hold a public hearing is not an order issued following a public hearing. For review, that decision must be presented first to a district court and not originally to a circuit court.
For the foregoing reasons, we affirm the decision of the District Court for the Central District of California, and dismiss the original petition filed in this Court.
GOODWIN, Circuit Judge, dissenting:
I respectfully dissent. The issue presented to us is whether this court or the district court has jurisdiction to hear an appeal from the denial of a request for a 6(d)
I believe the denial of a 6(d) hearing for the 22 crops was an order issued following a public hearing. The District of Columbia Circuit discussed at length the meaning of "public hearing" in § 16(b) in Environmental Defense Fund, Inc. v. Costle, 631 F.2d 922 (D.C.Cir.1980). It concluded that a public hearing has occurred if there was an administrative decision with an adequate record for appellate review. I wholeheartedly agree. The majority holding that the
In this case, there was an administrative decision with an adequate record for appellate review. Both parties submitted briefs to the Administrative Law Judge ["ALJ"] and some oral argument
The majority acknowledges that Congress' intent in allowing immediate appellate review was to limit the number of conflicting decisions and to afford finality as soon as possible. Because we have an adequate basis from which to review, I would decide the merits and delay consideration of this appeal no longer.
Here there is no record of the agency action on the merits' the record before this court deals only with the procedural skirmishing aimed at determining the scope of the hearing, a procedure which the District Court is admirably equipped to handle.
The court later held that while Louisiana v. Train, supra, was distinguishable, the reasoning therein was, at the very least, persuasive.