899 F.3d 814

FERNANDEZ, Circuit Judge, dissenting:
League of United Latin American Citizens, Pesticide Action Network North America (PANNA), Natural Resources Defense Council (NRDC), 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, and United Farm Workers (collectively, "LULAC") petition for review of the Environmental Protection Agency's (EPA) 2017 order denying a 2007 petition to revoke all tolerances for the pesticide chlorpyrifos (hereafter "the Pesticide"). See Chlorpyrifos; Order Denying PANNA and NRDC's Petition to Revoke Tolerances, 82 Fed. Reg. 16,581, 16,583 (Apr. 5, 2017) (the "2017 Order"). In the briefs (not in the petition for review), LULAC and the States ask for a writ of mandamus ordering EPA to respond to the objections they filed to the 2017 Order. In their brief, the States also ask for a writ of mandamus compelling the EPA to issue a final rule revoking chlorpyrifos tolerances.
The EPA regulates the use of pesticides on food pursuant to the Federal Food, Drug, and Cosmetic Act (FFDCA) and the Federal Insecticide, Fungicide and Rodenticide Act (FIFRA). At present, the Pesticide is registered as an insecticide for food crops and non-food settings. In the view of LULAC and the States, the Pesticide is unsafe and the EPA should modify or revoke the tolerances it has established for the Pesticide pursuant to FFDCA. See 21 U.S.C. § 346a(a)(1)(A), (b)(1). For that matter, they believe that the EPA should cancel the Pesticide's registration for food crops under FIFRA. See 7 U.S.C. § 136a(g)(1)(A)(v). In September 2007, PANNA and NRDC filed an administrative petition with the EPA seeking revocation of the Pesticide's FFDCA food tolerances and cancellation of its FIFRA registrations (the 2007 Petition). On April 5, 2017, the EPA issued the 2017 Order in which it denied the 2007 Petition. See 82 Fed. Reg. at 16,581. LULAC and certain states filed objections to the 2017 Order on June 5, 2017, and on that same date, LULAC filed the instant petition for review of the merits of the 2017 Order.
JURISDICTION
The majority holds that we have jurisdiction over the petition for review. I disagree. Of course, we do have jurisdiction to determine whether we have jurisdiction over the petition for review. See Special Invs. Inc. v. Aero Air Inc. , 360 F.3d 989, 992 (9th Cir. 2004). Nonetheless, " '[w]e presume that federal courts lack jurisdiction unless the contrary appears affirmatively from the record.' " DaimlerChrysler Corp. v. Cuno , 547 U.S. 332, 342 n.3, 126 S.Ct. 1854, 1861 n.3, 164 L.Ed. 2d 589 (2006). Thus, "the party asserting federal jurisdiction ... has the burden of establishing it." Id. Here LULAC attempts to meet that burden by pointing to the judicial review provisions of FFDCA. See 21 U.S.C. § 346a(h). It also relies on FIFRA. See 7 U.S.C. § 136n(b). The States also point to 5 U.S.C. §§ 704, 706 as a possible source of jurisdiction. In my view, all of those attempts fail. Hence I would dismiss the petition.
A. Jurisdiction Under FFDCA
The 2017 Order was issued pursuant to § 346a(d)(4)(A)(iii). In seeking to obtain FFDCA jurisdiction, LULAC relies upon § 346a(h)(1) which, as pertinent here, provides that:
In a case of actual controversy as to the validity of ... any order issued under subsection ... (g)(2)(C) [of this section], ... any person who will be adversely affected by such order ... may obtain judicial review by filing in the United States Court of Appeals for the circuit wherein that person resides or has its principal place of business ... a petition praying that the order ... be set aside in whole or in part.
Unfortunately for LULAC's argument, the subsection referred to in the above quotation from § 346a(h)(1) is the subsection that provides for the EPA to issue an order following objections to a previous order of the EPA and that agency's processing of those objections. See § 346a(g)(2). That, by the way, is the process to which we pointed the parties in our earlier consideration of the EPA's proceedings regarding the Pesticide and stated that only after the review was completed "may we consider the merits of EPA's 'final agency action.' " Nat. Res. Def. Council, Inc. v. U.S. EPA (In re PANNA) , 863 F.3d 1131, 1133 (9th Cir. 2017). Specifically, § 346a(g)(2)(A) provides that a person may file objections to an order issued under § 346a(d)(4), as the 2017 Order was. The EPA may then hold a public evidentiary hearing upon request or upon its own initiative. See § 346a(g)(2)(B). An appropriate "order stating the action taken upon each such objection and setting forth any revision to the ... prior order" must then be issued. Id. at (C). Pursuant to the plain reading of the above subsection taken as a whole, then, and only then, can judicial review in this court be sought pursuant to § 346a(h)(1).
But, says LULAC, the requirement is no more than a claim-processing rule rather than a true jurisdictional rule. The majority agrees; I am not convinced. Here Congress was very careful and very specific about the class of cases-the limited kind of orders-over which it wished to give the courts of appeals direct review. It made it plain that we could not review the EPA's actions in this specific area until the agency had developed and considered a full record regarding objections and the like. Before that occurred, judicial review was not available; we had no authority whatsoever to consider the issue. As the Second Circuit Court of Appeals has pointed out, § 346a(h)(1) is "unique in that it only commits certain specific agency actions to appellate court review." Nat. Res. Def. Council v. Johnson , 461 F.3d 164, 172 (2d Cir. 2006). In light of that careful restriction on judicial review, it is not at all likely that Congress would have authorized our seizing jurisdiction before the specific agency action was concluded. Lest there be any doubt, Congress also precluded possible bypassing of the § 346a(g)(2) provisions when it directed that no "judicial review under any other provision of law" would be permitted. Section 346a(h)(5) ; see also Johnson , 461 F.3d at 172-74. And that is further emphasized by the fact that the section does not speak in general language of finality or exhaustion; it, rather, states specifically when we can assume review authority over the particular matters. Had Congress contemplated appellate court review before the EPA completed the process required by § 346a(g)(2)(C), it could easily have inserted orders under § 346a(d)(4), or, more specifically, § 346a(d)(4)(A)(iii) into the judicial review provisions of § 346a(h)(1), which, of course, it did not do. Rather, it expressly allowed judicial review only over the agency's ruling on objections that had to be filed with the agency, and not before. See Gallo Cattle Co. v. U.S. Dep't of Agric. , 159 F.3d 1194, 1197-98 (9th Cir. 1998) ; see also McBride Cotton & Cattle Corp. v. Veneman , 290 F.3d 973, 979-80 (9th Cir. 2002) (discussing Gallo Cattle ). That is particularly telling because earlier iterations of the review provisions contained no such jurisdictional limitations. See Nat'l Coal. Against the Misuse of Pesticides v. Thomas , 809 F.2d 875, 878-79 (D.C. Cir. 1987).
In short, I see no basis for deconstructing that carefully constructed jurisdictional scheme and thereby inviting premature attacks on matters committed to the expertise of the agency in the first instance.
B. Jurisdiction under FIFRA
LULAC then argues that because it not only asked for the EPA to revoke all tolerances for the Pesticide but also asked the EPA to cancel all registrations for the Pesticide, the 2007 Petition to the EPA arose under both the FFDCA and FIFRA. Thus, it argues, it need not abide by the FFDCA review provisions, but can rely on the jurisdictional provisions of the FIFRA to establish our jurisdiction. See 7 U.S.C. § 136n(b). I do not agree.
Rather, I am persuaded by the cogent reasoning of the Second Circuit Court of Appeals in a strongly similar situation. See Johnson , 461 F.3d at 176. In that case, pursuant to the FFDCA provisions, NRDC also challenged the EPA's setting of tolerances for residues on food of five pesticides (not including the Pesticide). Id. at 169-70. NRDC added that their registration should be cancelled pursuant to FIFRA. Id. at 176. NRDC had brought its action in the district court, and on appeal the Second Circuit determined that the district court did not have jurisdiction to review the EPA determination under the FFDCA because, as § 346(a)(h)(1), (5) provide, jurisdiction over those claims was limited to the courts of appeals. Id. at 172-76. NRDC then argued that the district court still had jurisdiction pursuant to FIFRA. The court replied:
However, FIFRA's grant of jurisdiction to the district courts is irrelevant. The NRDC Appellants "challenge the registration of pesticides under FIFRA only through their challenge to the tolerances set under the [F]FDCA." Essentially, therefore, the violations of FIFRA alleged by the NRDC Appellants "amount to challenges to the methodologies used in reaching the reassessment determinations at issue" in this case. As such, these challenges represent an "issue as to which review is or was obtainable under Section 346a(h). Section 346a(h)(5) precludes judicial review of these issues "under any other provision of law." The NRDC Appellants' attempt to find independent jurisdiction for their claims under FIFRA is thus precluded by the express language of § 346a(h)(5). The NRDC Appellants' claims are reviewable only in the courts of appeals, and only after they have exhausted the statutory provisions for administrative review.
Id. at 176 (citations omitted).
I accept that reasoning and the same reasoning should apply here. It would foreclose LULAC's argument. LULAC essentially argues that the EPA has erred in maintaining tolerances for the Pesticide, which is an unsafe insecticide, and for that same reason it argues that the EPA must forthwith revoke registration of the Pesticide. It argues that it should not have to wait for the EPA to rule on its registration claim, but that is just an allotrope of its central arguments against waiting for relief under the FFDCA tolerances provision with which its FIFRA argument is "inextricably intertwined." See Ctr. for Biological Diversity v. U.S. EPA , 847 F.3d 1075, 1089 (9th Cir. 2017). Therefore, the FIFRA provision does not offer a way to avoid the judicial review provisions of the FFDCA in this instance.
Thus, I would dismiss the petition for review for lack of jurisdiction.
WRIT OF MANDAMUS
In its briefs, LULAC asks us to issue a writ of mandamus directing that the EPA respond to its objections within sixty days. However, LULAC did not file a petition for issuance of that writ and, therefore, made no attempt to comply with the Federal Rules of Appellate Procedure when it filed its petition for review of the merits of the 2017 Order. See Fed. R. App. P. 21(a), (c) ; see also Fed. R. App. P. 20. I see no reason to treat LULAC's petition for review as, in fact, one for a writ of mandamus. It was not, and could not have been, a mere instance of mislabeling a request for relief that was sought. Had LULAC intended to seek a writ of mandamus, rather than a merits review, that would have been most peculiar because on that same day LULAC had just filed its objections to the 2017 Order. It could not honestly complain about delay in considering its objections at that point. Were I to decide otherwise, I would essentially ignore our holding, which was handed down after this petition for review was filed, but before the briefs were filed, and which declared that PANNA and NRDC must file their objections and await resolution of those objections by the EPA before we would consider the merits of the EPA's actions regarding the Pesticide. See Nat. Res. Def. Council , 863 F.3d at 1133.
Thus, this case is quite unlike cases where we decided that a party improperly sought to appeal an interim procedural order rather than a decision on the merits of a case, but we also considered whether we should construe the appeal as a petition for a writ of mandamus. See Kum Tat Ltd. v. Linden Ox Pasture, LLC , 845 F.3d 979, 983 (9th Cir. 2017) (discussing order denying arbitration request); Johnson v. Consumerinfo.com, Inc. , 745 F.3d 1019, 1023 & n.2 (9th Cir. 2014) (discussing order compelling arbitration and staying judicial proceedings); see also United States v. Davis , 953 F.2d 1482, 1497-98 (10th Cir. 1992) (dismissing request for mandamus by defense counsel in criminal conviction appeal where no petition had been filed); EEOC v. Neches Butane Prods. Co. , 704 F.2d 144, 146, 151-52 (5th Cir. 1983) (denying request that an appeal from a stay of proceedings pending compliance with discovery orders be treated as a mandamus petition where requesting party was represented by competent counsel and should have filed a petition therefor); Jones & Guerrero Co., Inc. v. Sealift Pac. , 650 F.2d 1072, 1073-74 (9th Cir. 1981) (per curiam) (refusing to construe appeal from order remanding case to Guam Superior Court as a petition for mandamus where no mandamus petition filed).
In short, I would decline to treat LULAC's petition as one for a writ of mandamus. Of course, I express no opinion on whether or when LULAC can or should file a petition for a writ of mandamus because LULAC deems the EPA's consideration of the objections to have been unduly delayed. See PANNA v. U.S. EPA (In re PANNA) , 798 F.3d 809, 813 (9th Cir. 2015) ; Telecomms. Research & Action Ctr. v. FCC , 750 F.2d 70, 80 (D.C. Cir. 1984).
Thus, I respectfully dissent from parts A and B of the Discussion in the majority opinion. As a result, I do not decide the issue in part C although I do find the discussion therein does have some persuasive value.
The States of New York, Maryland, Vermont, Washington, California, and Hawaii, as well as the Commonwealth of Massachusetts and the District of Columbia (collectively, "the States"), are Intervenors in support of LULAC's petition.
21 U.S.C. §§ 301 -399g.
7 U.S.C. §§ 136 -136y.
See 21 U.S.C. § 346a(a)(1).
What I determine hereafter regarding LULAC also applies to the States unless otherwise indicated.
Hereafter, all references to § 346a are to 21 U.S.C. § 346a.
See Nuclear Info. & Res. Serv. v. U.S. Dep't of Transp. Research & Special Programs Admin. , 457 F.3d 956, 960 (9th Cir. 2006).
See Henderson ex rel. Henderson v. Shinseki , 562 U.S. 428, 435, 131 S.Ct. 1197, 1203, 179 L.Ed. 2d 159 (2011) (claim-processing rules merely "seek to promote the orderly progress of litigation by requiring that the parties take certain procedural steps at certain specified times").
" 'Jurisdiction' refers to 'a court's adjudicatory authority.' " Reed Elsevier, Inc. v. Muchnick , 559 U.S. 154, 160, 130 S.Ct. 1237, 1243, 176 L.Ed. 2d 18 (2010). "Accordingly, the term 'jurisdictional' properly applies only to 'prescriptions delineating the classes of cases (subject-matter jurisdiction) ...' implicating that authority."Id. at 160-61, 130 S. Ct. at 1243 ; see also Payne v. Peninsula Sch. Dist. , 653 F.3d 863, 868 (9th Cir. 2011) (en banc), overruled on other grounds by Albino v. Baca , 747 F.3d 1162, 1171 (9th Cir. 2014) (en banc).
Cf. Anderson v. Babbitt , 230 F.3d 1158, 1162 (9th Cir. 2000) ; Rumbles v. Hill , 182 F.3d 1064, 1067 (9th Cir. 1999).
Because the completion of the administrative process is jurisdictional, I do not consider LULAC's fallback argument that it would be futile to pursue the prescribed process. See Sun v. Ashcroft , 370 F.3d 932, 941 (9th Cir. 2004) ; see also Ross v. Blake , --- U.S. ----, ----, 136 S.Ct. 1850, 1857, 195 L.Ed. 2d 117 (2016) ; Gallo Cattle , 159 F.3d at 1197.
I do not overlook the States' argument regarding 5 U.S.C. §§ 704, 706 (the Administrative Procedure Act provisions). But those provisions do not confer direct review jurisdiction upon this court. See Gallo Cattle , 159 F.3d at 1198 ; see also Califano v. Sanders , 430 U.S. 99, 106-07, 97 S.Ct. 980, 985, 51 L.Ed. 2d 192 (1977). Therefore, they add nothing of substance to the petition for review issues now before us.
See 28 U.S.C. § 1651(a) ; see also Cal. Cmtys. Against Toxics v. U.S. EPA (In re A Cmty. Voice) , 878 F.3d 779, 783 (9th Cir. 2017).

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