Case: 19-70115, 06/24/2020, ID: 11732791, DktEntry: 168, Page 1 of 8
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`
`
`
`No. 19-70115
`
`IN THE
`United States Court of Appeals
`for the Ninth Circuit
`
`
`
`
`
`
`
`NATIONAL FAMILY FARM COALITION, et al.,
` Petitioners,
`
`v.
`
`UNITED STATES ENVIRONMENTAL PROTECTION AGENCY, et al.,
`
`Respondents,
`
`and
`
`MONSANTO COMPANY, BASF CORPORATION, and E.I. DU PONT
`DE NEMOURS AND COMPANY
`
` Intervenor-Respondents.
`
`
`
`
`
`
`
`
`
`
`
`ON PETITION FOR REVIEW FROM THE UNITED STATES
`ENVIRONMENTAL PROTECTION AGENCY
`
`
`
`
`
`
`BASF CORPORATION’S REPLY IN SUPPORT OF ITS CROSS-MOTION
`TO RECALL AND STAY MANDATE
`
`
`Neal Kumar Katyal
`Kirti Datla
`Jo-Ann Sagar
`HOGAN LOVELLS US LLP
`555 Thirteenth Street NW
`Washington, DC 20004
`(202) 637-5600
`
`John C. Cruden
`Kathryn E. Szmuszkovicz
`Anthony L. Michaels
`David A. Barker
`BEVERIDGE & DIAMOND PC
`1350 I Street NW Suite 700
`Washington DC 20005-3311
`(202) 789-6000
`kes@bdlaw.com
`
` Counsel for Intervenor-Respondent BASF Corporation
`
`
`
`
`
`
`
`
`
`
`
`
`No. 19-70115
`
`IN THE
`United States Court of Appeals
`for the Ninth Circuit
`
`
`
`
`
`
`
`NATIONAL FAMILY FARM COALITION, et al.,
` Petitioners,
`
`v.
`
`UNITED STATES ENVIRONMENTAL PROTECTION AGENCY, et al.,
`
`Respondents,
`
`and
`
`MONSANTO COMPANY, BASF CORPORATION, and E.I. DU PONT
`DE NEMOURS AND COMPANY
`
` Intervenor-Respondents.
`
`
`
`
`
`
`
`
`
`
`
`ON PETITION FOR REVIEW FROM THE UNITED STATES
`ENVIRONMENTAL PROTECTION AGENCY
`
`
`
`
`
`
`BASF CORPORATION’S REPLY IN SUPPORT OF ITS CROSS-MOTION
`TO RECALL AND STAY MANDATE
`
`
`Neal Kumar Katyal
`Kirti Datla
`Jo-Ann Sagar
`HOGAN LOVELLS US LLP
`555 Thirteenth Street NW
`Washington, DC 20004
`(202) 637-5600
`
`John C. Cruden
`Kathryn E. Szmuszkovicz
`Anthony L. Michaels
`David A. Barker
`BEVERIDGE & DIAMOND PC
`1350 I Street NW Suite 700
`Washington DC 20005-3311
`(202) 789-6000
`kes@bdlaw.com
`
` Counsel for Intervenor-Respondent BASF Corporation
`
`
`
`
`
`
`
`
`
`Case: 19-70115, 06/24/2020, ID: 11732791, DktEntry: 168, Page 2 of 8
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`I. PETITIONERS DO NOT CONTEST THE GROUNDS OF BASF’S
`MOTION
`
`In their Response (ECF 166), Petitioners do not dispute that the record before
`
`this Court was limited to information as of October 2018, and thus cannot establish
`
`the “emergency circumstances” necessary to support early issuance of the mandate.
`
`General Order 4.6(a); Circuit Advisory Committee Note to Rule 41-1. Tellingly,
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`nowhere in their Response do Petitioners state that they actually oppose the relief
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`sought by BASF, or provide any argument why that relief would be inappropriate
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`under the applicable standard.
`
`Instead, Petitioners offer two incorrect and irrelevant assertions about the
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`magnitude of the harms caused by the immediate issuance of the mandate. First,
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`Petitioners oddly suggest that BASF will lose no sales from the immediate vacatur
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`of its Engenia registration. ECF 166-1 at § 1. It is undisputed that Engenia sales for
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`the 2020 season were ongoing, and that BASF immediately “stopped all its sales”
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`upon issuance of this Court’s June 3 mandate, leaving it with $44 million of current
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`inventory that can no longer be sold this season as planned. ECF 130-2 at ¶ 16.
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`Petitioners’ suggestion that BASF’s sales were not impacted is contradicted by the
`
`facts and common sense. Moreover, Petitioners do not dispute that the immediate
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`issuance of the mandate deprived BASF of its due process right to be heard before
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`its Engenia registration is effectively terminated.
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`Second, Petitioners assert that BASF “cannot rely on harms to growers
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`1
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`Case: 19-70115, 06/24/2020, ID: 11732791, DktEntry: 168, Page 3 of 8
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`because it does not represent them.” ECF 166-1 at § 2. Of course, these growers
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`are BASF’s customers, who made planting decisions in reliance on the availability
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`of BASF’s product. BASF is directly harmed when its customers are forced to
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`switch to (less effective) competing products. Regardless, this Court can and should
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`consider impacts on non-parties in deciding whether to exercise its discretion to
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`recall its mandate for “good cause” or to “prevent injustice.” Zipfel v. Halliburton
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`Co., 861 F.2d 565, 567 (9th Cir. 1988).
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`Tellingly, nowhere in their Response do Petitioners argue that “emergency
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`circumstances” exist to justify immediate mandate issuance. Accordingly, this Court
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`should recall the mandate and follow the normal schedule established by FRAP 41.
`
`II. PETITIONERS’ REQUESTS THAT THE PANEL LIMIT PETITIONS
`FOR RE-HEARING ARE INAPPROPRIATE AND IRRELEVANT TO
`BASF’S CROSS-MOTION
`
`In the bulk of their Response, Petitioners suggest that if the Court grants
`
`BASF’s request and recalls the mandate, it should also retroactively impose
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`conditions on BASF’s participation as an intervenor, or dictate in advance how
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`future petitions for rehearing are to be presented so as “to avoid duplicity and
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`repetition.” ECF 166-1 at 2-6. Petitioners’ suggestions are entirely inappropriate
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`and should be rejected.
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`First, contrary to Petitioners’ assertion, BASF sought full intervention as of
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`right, not limited to particular issues. See ECF 130 at 1, 15; ECF 156 at 6 (as
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`2
`
`
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`Case: 19-70115, 06/24/2020, ID: 11732791, DktEntry: 168, Page 4 of 8
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`intervenor, BASF may “challenge the panel’s decision as a whole”). BASF’s
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`intervention motion was fully briefed, and Petitioners never advocated that
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`conditions should be applied.
`
`This Court has already granted BASF’s motion to intervene, without
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`conditions. ECF 162. Accordingly, BASF’s status in this case is now equivalent to
`
`that of an original party, and BASF is entitled to participate fully in all future
`
`proceedings in this case, including but not limited to any rehearing petitions and any
`
`subsequent proceedings. E.g., 7C Charles Alan Wright & Arthur R. Miller, Federal
`
`Practice and Procedure § 1920 (3d ed. 2020) (“the intervenor is entitled to litigate
`
`fully on the merits once intervention has been granted.”). As this Court has
`
`repeatedly recognized, the right to raise any issue on appeal is a key characteristic
`
`that distinguishes intervenor status from amicus participation.1
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`Second, the cases cited by Petitioners provide no support whatsoever for the
`
`notion that the recall of the mandate can or should be accompanied by limitations on
`
`the scope of rehearing. Contrary to Petitioners’ assertions, the panel in Day v.
`
`Apoliona, 505 F.3d 963, 965 (9th Cir. 2007), did not purport to limit in advance the
`
`
`1 See, e.g., United States v. City of Los Angeles, 288 F.3d 391, 400 (9th Cir.
`2002) (“[A]micus status is insufficient to protect the [intervenor’s] rights because
`such status does not allow the [intervenor] to raise issues or arguments formally and
`gives it no right of appeal.”); Forest Conservation Council v. U.S. Forest Serv., 66
`F.3d 1489, 1498 (9th Cir. 1995), abrogated on other grounds by Wilderness Soc. v.
`U.S. Forest Serv., 630 F.3d 1173 (9th Cir. 2011).
`
`3
`
`
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`Case: 19-70115, 06/24/2020, ID: 11732791, DktEntry: 168, Page 5 of 8
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`scope of rehearing. It merely acknowledged and discussed the scope of a rehearing
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`petition that had already been submitted by a proposed intervenor. Id.
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`Finally, it would be entirely inappropriate for a panel to seek to limit the scope
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`of review of its decision by the en banc Court. That would be analogous to a district
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`court seeking to limit the scope of an appeal to this Court. Petitioners have not cited
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`a single case in which that occurred, or where a panel sought to limit the scope of en
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`banc review. The cases Petitioners cite merely recognize that district courts have
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`some discretion to make appropriate case management decisions during proceedings
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`before the district court.2 None of those cases suggests that one court may make a
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`case management decision for another, or that a panel may make a case management
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`decision that limits the en banc Court. This panel should not seek to limit en banc
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`review, but should instead ensure that no issue is “insulated from review simply due
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`to the posture of the parties.” Day at 965.
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`This Court should reject Petitioners’ belated requests to retroactively impose
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`
`2 See Dep’t of Fair Emp’t & Hous. v. Lucent Techs., Inc., 642 F.3d 728, 742
`(9th Cir. 2011) (district court had discretion to limit arguments made in the district
`court “to keep the litigation from becoming unmanageable”); United States v. Albert
`Inv. Co., 585 F.3d 1386, 1396 (10th Cir. 2009) (district court could impose
`“reasonable” conditions on intervention to avoid delay, such as “denying
`discovery”); Beauregard, Inc. v. Sword Servs. L.L.C., 107 F.3d 351, 352–53 (5th Cir.
`1997) (referring to the district court’s “inherent powers to manage” an in rem
`admiralty matter); Earthworks v. U.S. Dep't of Interior, No. CIV.A. 09-01972 HHK,
`2010 WL 3063143, at *2 (D.D.C. Aug. 3, 2010) (requiring consultation between
`defendants and intervenor-defendant to avoid “excessive briefing in this case”).
`
`4
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`
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`Case: 19-70115, 06/24/2020, ID: 11732791, DktEntry: 168, Page 6 of 8
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`inappropriate conditions on BASF’s intervention, or to limit in advance the scope or
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`presentation of future rehearing petitions. Petitioners’ arguments have nothing to do
`
`with BASF’s Cross-Motion, which concerns only the timing of the issuance of the
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`Court’s mandate.
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`This Court should grant BASF’s Cross-Motion to Recall and Stay Mandate.
`
`June 24, 2020
`
`Respectfully submitted,
`
`Neal Kumar Katyal
`Kirti Datla
`Jo-Ann Sagar
`HOGAN LOVELLS US LLP
`555 Thirteenth Street NW
`Washington, DC 20004
`(202) 637-5600
`
`/s/ Kathryn E. Szmuszkovicz
`
`John C. Cruden
`Kathryn E. Szmuszkovicz
`Anthony L. Michaels
`David A. Barker
`BEVERIDGE & DIAMOND PC
`1350 I Street NW Suite 700
`Washington DC 20005-3311
`(202) 789-6000
`kes@bdlaw.com
`
` Counsel for Intervenor-Respondent BASF Corporation
`
`
`
`5
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`Case: 19-70115, 06/24/2020, ID: 11732791, DktEntry: 168, Page 7 of 8
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`CERTIFICATE OF COMPLIANCE
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`I certify that this Reply complies with Federal Rule of Appellate Procedure
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`27(d)(1)(E) because it has been prepared in Times New Roman 14-point font using
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`Microsoft Word 2010. I further certify that it complies with Federal Rule of
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`Appellate Procedure 27(d)(2)(A) because it contains 1103 words.
`
`June 24, 2020
`
`
`
`/s/ Kathryn E. Szmuszkovicz
`
`Kathryn E. Szmuszkovicz
`BEVERIDGE & DIAMOND PC
`1350 I Street NW Suite 700
`Washington DC 20005-3311
`(202) 789-6037
`kes@bdlaw.com
`
`for Respondent-Intervenor
`Counsel
`BASF Corporation
`
`
`
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`Case: 19-70115, 06/24/2020, ID: 11732791, DktEntry: 168, Page 8 of 8
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`CERTIFICATE OF SERVICE
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`I hereby certify that on June 24, 2020, I filed the foregoing Reply with the
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`Clerk of the Court for the United States Court of Appeals for the Ninth Circuit by
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`using the appellate CM/ECF system.
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`I certify that all participants in the case are registered CM/ECF users and that
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`service will be accomplished by the appellate CM/ECF system.
`
`/s/ Kathryn E. Szmuszkovicz
`
`Kathryn E. Szmuszkovicz
`BEVERIDGE & DIAMOND PC
`1350 I Street NW Suite 700
`Washington DC 20005-3311
`(202) 789-6037
`kes@bdlaw.com
`
`for Respondent-Intervenor
`Counsel
`BASF Corporation
`
`June 24, 2020
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