Case 1:20-cv-03190-RCL Document 64 Filed 07/23/21 Page 1 of 8
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`IN THE UNITED STATES DISTRICT COURT
`FOR THE DISTRICT OF COLUMBIA
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`No. 1:20-cv-03190-RCL
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`AMERICAN SOYBEAN ASSOCIATION, et al.,
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`Plaintiffs,
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`v.
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`U.S. ENVIRONMENTAL PROTECTION
`AGENCY, et al.,
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`Federal Defendants,
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`and
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`BASF CORPORATION, et al.,
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`Intervenor-Defendants.
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`FEDERAL DEFENDANTS’ MOTION FOR STAY AND
`EXTENSION OF DEADLINE TO FILE CERTIFIED LIST OF
`ADMINISTRATIVE RECORD CONTENTS
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`Federal Defendants, the U.S. Environmental Protection Agency (“EPA”), Administrator
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`Michael S. Regan, and Marietta Echeverria in her official capacity as Acting Director of the
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`Registration Division of EPA’s Office of Pesticide Programs respectfully request that the Court
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`stay this case pending the D.C. Circuit’s resolution of petitions for review of the same agency
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`actions challenged here. Federal Defendants also request that the Court suspend the deadline for
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`Federal Defendants to file a certified list of the contents of the administrative record during the
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`pendency of the stay, or in the event the Court declines to stay this case, until seven days after
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`the Court’s resolution of this Motion. Counsel for Federal Defendants consulted with counsel
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`for Plaintiffs and Intervenor-Defendants regarding this Motion. Counsel for Plaintiffs
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`represented that they oppose this Motion. Counsel for Intervenor-Defendants represented that
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`they do not oppose the Motion.
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`Case 1:20-cv-03190-RCL Document 64 Filed 07/23/21 Page 2 of 8
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`In support of this Motion, Federal Defendants state the following:
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`1.
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`In this action, Plaintiffs the American Soybean Association and Plains Cotton
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`Growers, Inc. (collectively, “Growers”) allege that EPA violated the Federal Insecticide,
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`Fungicide, and Rodenticide Registration Act (“FIFRA”) and the Administrative Procedure Act in
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`its decisions to register three dicamba-based pesticide products for use on dicamba tolerant
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`cotton and soybeans under FIFRA section 3(c)(5) (the “Registration Decisions”). Dkt. No. 50
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`¶ 8 (“Amended Complaint”). As noted in Federal Defendants’ Motion for Partial Dismissal of
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`Plaintiffs’ Amended Complaint (“Motion for Partial Dismissal”) and the reply in support thereof,
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`the Amended Complaint also improperly alleges that Federal Defendants violated the
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`Endangered Species Act. See Dkt. Nos. 57, 59.
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`2.
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`Federal Defendants have not filed an answer to the Amended Complaint. On
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`April 6, 2021, Federal Defendants moved for partial dismissal of Counts II and IV of Growers’
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`original Complaint. Dkt. No. 43. On April 27, Growers filed their Amended Complaint. Dkt.
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`No. 50. Federal Defendants filed a motion to dismiss all claims in the Amended Complaint
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`concerning EPA’s compliance with Section 7 of the Endangered Species Act. Dkt. No. 57. The
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`Motion for Partial Dismissal has been fully briefed.
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`3.
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`FIFRA provides a bifurcated system for judicial review of agency actions taken
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`under that statute. Under 7 U.S.C. § 136n(b), circuit courts have exclusive jurisdiction to review
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`cases involving “the validity of any order issued by the Administrator following a public
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`hearing.” Otherwise, FIFRA provides for district court review of certain enumerated actions and
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`“other final actions of the Administrator not committed to the discretion of the Administrator by
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`law.” 7 U.S.C. § 136n(a).
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`2
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`Case 1:20-cv-03190-RCL Document 64 Filed 07/23/21 Page 3 of 8
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`4.
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`Several petitioners, including Growers, have filed petitions for review of the same
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`Registration Decisions challenged here in the federal circuit courts of appeals under 7 U.S.C.
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`§ 136n(b).1 Growers’ petition for review is styled as a protective petition intended to preserve
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`Growers’ ability to challenge the Registration Decisions in the event that subject matter
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`jurisdiction is found to lie in the appellate courts. The petitions for review have been
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`consolidated in the D.C. Circuit under American Soybean Association v. Regan, No. 20-1441.
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`No briefing schedule has been established in that case and EPA has not yet filed the
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`administrative record.
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`5.
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`The D.C. Circuit ordered the parties in American Soybean Association v. Regan to
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`file motions to govern at the conclusion of a previous abeyance period in that case. In response,
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`EPA moved to dismiss the petitions for review, arguing that under 7 U.S.C. § 136n subject
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`matter jurisdiction over challenges to the Registration Decisions lies with the federal district
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`courts and not the appellate courts. ECF No. 1895893, Am. Soybean Ass’n v. Regan, No. 20-
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`1441 (D.C. Cir. Apr. 23, 2021). Growers and the intervenors in that case (who are the same as
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`Intervenor-Defendants here) filed motions to stay the D.C. Circuit proceedings while the district
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`court challenges to the Registration Decisions (including this case) proceed. ECF Nos. 1895857,
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`1895674, Am. Soybean Ass’n v. Regan, No. 20-1441 (D.C. Cir. Apr. 23, 2021). The
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`Environmental Group petitioners moved to transfer the petitions for review to the Ninth Circuit.
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`ECF No. 1895679, Am. Soybean Ass’n v. Regan, No. 20-1441 (D.C. Cir. Apr. 22, 2021).
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`1 In addition, one group of petitioners in the D.C. Circuit case has also filed a challenge to the
`Registration Decisions in the U.S. District Court for the District of Arizona. Ctr. for Biological
`Diversity v. EPA, No. 20-cv-555 (D. Ariz. filed Dec. 23, 2020) (“CBD v. EPA”). Intervenors in
`that case, who are the same as Intervenor-Defendants here, have moved to transfer the District of
`Arizona challenge to this Court. Dkt. No. 30, CBD v. EPA, No. 20-cv-555 (D. Ariz. May 21,
`2021). EPA filed a response in support of transfer. Dkt. No. 43, CBD v. EPA, No. 20-cv-555
`(D. Ariz. June 18, 2021). The motion to transfer in that case has been fully briefed.
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`3
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`6.
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`On July 14, 2021, the D.C. Circuit issued an order addressing the motions to
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`govern. ECF No. 1906276, Am. Soybean Ass’n v. Regan, No. 20-1441 (D.C. Cir. July 14, 2021).
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`The court denied the motions to stay and the motion to transfer and referred EPA’s motion to
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`dismiss to the merits panel that will hear the petitions for review. The D.C. Circuit also directed
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`the parties to submit a proposed format for briefing subject matter jurisdiction and arguments on
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`the merits.
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`7.
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`In light of the foregoing, Federal Defendants respectfully request that the Court
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`stay this case pending issuance of the D.C. Circuit’s mandate in American Soybean Association
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`v. Regan, No. 20-1441. “District courts have broad discretion to stay all proceedings in an action
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`pending the resolution of independent legal proceedings.” Nat’l Indus. for the Blind v. Dep’t of
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`Veterans Affairs, 296 F. Supp. 3d 131, 137 (D.D.C. 2017) (citing Landis v. N. Am. Co., 299 U.S.
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`248, 254 (1936)). This is particularly true “where the parties and the issues are the same” in both
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`cases. Am. Life Ins. Co. v. Stewart, 300 U.S. 203, 215 (1937). The authority to issue such a stay
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`flows from “‘the power inherent in every court to control the disposition of the causes on its
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`docket with economy of time and effort for itself, for counsel, and for litigants.’” Id. (quoting
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`Air Line Pilots Ass’n v. Miller, 523 U.S. 866, 879 n.6 (1998)). A stay may be warranted where
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`another case “which may have preclusive effect over the instant proceedings is pending on
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`appeal.” Univ. of Colo. Health at Memorial Hosp. v. Burwell, 233 F. Supp. 3d 69, 87 (D.D.C.
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`2017).
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`8.
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`Federal Defendants believe that subject matter jurisdiction over challenges to the
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`Registration Decisions properly lies in the district courts because the Registration Decisions were
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`not issued “following a public hearing” under 7 U.S.C. § 136n(b), and have been proceeding
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`with this case on that basis. Nonetheless, the D.C. Circuit has declined to resolve EPA’s motion
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`4
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`Case 1:20-cv-03190-RCL Document 64 Filed 07/23/21 Page 5 of 8
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`to dismiss the petitions for review of the Registration Decisions at this time and is proceeding to
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`consider the issue of subject matter jurisdiction along with the merits of the petitioners’ claims.
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`Accordingly, the D.C. Circuit will ultimately issue a decision that is binding on this Court that
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`either: (1) holds that subject matter jurisdiction to review the Registration Decisions lies with the
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`district courts and dismisses the petitions for review; or (2) holds that subject matter jurisdiction
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`lies with the appellate courts and decides the challenges presented by the petitioners (including
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`Growers) on their merits. Because the D.C. Circuit is proceeding to resolve these issues, the
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`appropriate course of action here is to stay this case to preserve the Court’s and the parties’
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`resources.
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`9.
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`It would be inefficient to proceed with duplicative challenges to the Registration
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`Decisions in both this Court and the D.C. Circuit. See Nat’l Shopmen Pension Fund v. Folger
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`Adam Security, Inc., 274 B.R. 1, 3 (D.D.C. 2002) (“Litigating essentially the same issues in two
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`separate forums is not in the interest of judicial economy or in the parties’ best interests
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`regarding time, cost, and effort.”) (citing Air Line Pilots Ass’n, 523 U.S. at 879 n.6). Indeed, the
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`D.C. Circuit will resolve some or all of the same issues involving the same agency actions and
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`underlying administrative record that are before this Court. See Univ. of Colo. Health, 233 F.
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`Supp. 3d at 88 (granting stay where “many of the applicable issues may be resolved by the D.C.
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`Circuit”). If the D.C. Circuit decides that it has subject matter jurisdiction and resolves the
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`Growers’ petitions for review on their merits, any briefing and decision on the merits in this case
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`will be rendered moot.
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`10.
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`The benefits to judicial economy outweigh any possible hardship to Growers from
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`staying this case. See Nat’l Indus. for the Blind, 296 F. Supp. 3d at 137 (stating “hardship to the
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`parties and benefits to judicial economy are the key interests to consider in evaluating a motion
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`5
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`Case 1:20-cv-03190-RCL Document 64 Filed 07/23/21 Page 6 of 8
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`for a stay”). Because Growers are also petitioners in the D.C. Circuit proceedings, they will be
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`able to protect their interests in this case through their participation in the briefing on jurisdiction
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`and the merits before the D.C. Circuit.
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`11.
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`Federal Defendants also request that the Court suspend the deadline for filing a
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`certified list of the contents of the administrative record during the pendency of the stay, or in the
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`event the Court declines to stay this case, until seven days after the Court resolves this Motion.
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`Granting this extension will promote efficiency because if the Court grants Federal Defendants’
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`request to stay this case, the Court will have no need for the administrative record until the stay
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`is lifted. Likewise, if the Court does not stay this case, the requested extension will not
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`unreasonably delay these proceedings or prejudice any party. Federal Defendants have not yet
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`answered the Amended Complaint, no briefing schedule has been established, and Federal
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`Defendants’ Motion for Partial Dismissal is pending before the Court.
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`For the foregoing reasons, EPA respectfully requests that the Court stay this case pending
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`issuance of the D.C. Circuit’s mandate in American Soybean Association v. Regan, No. 20-1441.
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`Federal Defendants also request that the Court suspend the deadline for Federal Defendants to
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`file a certified list of the contents of the administrative record during the pendency of the stay, or
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`in the event the Court declines to stay this case, until seven days after the Court’s resolution of
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`this Motion.
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`6
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`Case 1:20-cv-03190-RCL Document 64 Filed 07/23/21 Page 7 of 8
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`Dated: July 23, 2021
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`Respectfully submitted,
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` /s/ Andrew D. Knudsen
`ANDREW D. KNUDSEN
`Environmental Defense Section
` (202) 353-7466
` Andrew.Knudsen@usdoj.gov
`J. BRETT GROSKO
`Wildlife and Marine Resources Section
` (202) 305-0342
` Brett.Grosko@usdoj.gov
`U.S. Department of Justice
`Environment and Natural Resources Division
`P.O. Box 7611
`Washington, DC 20044
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`Counsel for Federal Defendants
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`7
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`Case 1:20-cv-03190-RCL Document 64 Filed 07/23/21 Page 8 of 8
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`CERTIFICATE OF SERVICE
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`I certify that on July 23, 2021, a copy of the foregoing was served by electronic means on
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`all counsel of record by the Court’s CM/ECF system.
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` /s/ Andrew D. Knudsen
`Andrew D. Knudsen
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`8
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