throbber
Case: 19-70115, 06/24/2020, ID: 11732791, DktEntry: 168, Page 1 of 8
`
`
`
`
`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
`
`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,
`
`nowhere in their Response do Petitioners state that they actually oppose the relief
`
`sought by BASF, or provide any argument why that relief would be inappropriate
`
`under the applicable standard.
`
`Instead, Petitioners offer two incorrect and irrelevant assertions about the
`
`magnitude of the harms caused by the immediate issuance of the mandate. First,
`
`Petitioners oddly suggest that BASF will lose no sales from the immediate vacatur
`
`of its Engenia registration. ECF 166-1 at § 1. It is undisputed that Engenia sales for
`
`the 2020 season were ongoing, and that BASF immediately “stopped all its sales”
`
`upon issuance of this Court’s June 3 mandate, leaving it with $44 million of current
`
`inventory that can no longer be sold this season as planned. ECF 130-2 at ¶ 16.
`
`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
`
`issuance of the mandate deprived BASF of its due process right to be heard before
`
`its Engenia registration is effectively terminated.
`
`Second, Petitioners assert that BASF “cannot rely on harms to growers
`
`1
`
`

`

`Case: 19-70115, 06/24/2020, ID: 11732791, DktEntry: 168, Page 3 of 8
`
`because it does not represent them.” ECF 166-1 at § 2. Of course, these growers
`
`are BASF’s customers, who made planting decisions in reliance on the availability
`
`of BASF’s product. BASF is directly harmed when its customers are forced to
`
`switch to (less effective) competing products. Regardless, this Court can and should
`
`consider impacts on non-parties in deciding whether to exercise its discretion to
`
`recall its mandate for “good cause” or to “prevent injustice.” Zipfel v. Halliburton
`
`Co., 861 F.2d 565, 567 (9th Cir. 1988).
`
`Tellingly, nowhere in their Response do Petitioners argue that “emergency
`
`circumstances” exist to justify immediate mandate issuance. Accordingly, this Court
`
`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
`
`conditions on BASF’s participation as an intervenor, or dictate in advance how
`
`future petitions for rehearing are to be presented so as “to avoid duplicity and
`
`repetition.” ECF 166-1 at 2-6. Petitioners’ suggestions are entirely inappropriate
`
`and should be rejected.
`
`First, contrary to Petitioners’ assertion, BASF sought full intervention as of
`
`right, not limited to particular issues. See ECF 130 at 1, 15; ECF 156 at 6 (as
`
`2
`
`

`

`Case: 19-70115, 06/24/2020, ID: 11732791, DktEntry: 168, Page 4 of 8
`
`intervenor, BASF may “challenge the panel’s decision as a whole”). BASF’s
`
`intervention motion was fully briefed, and Petitioners never advocated that
`
`conditions should be applied.
`
`This Court has already granted BASF’s motion to intervene, without
`
`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
`
`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
`
`

`

`Case: 19-70115, 06/24/2020, ID: 11732791, DktEntry: 168, Page 5 of 8
`
`scope of rehearing. It merely acknowledged and discussed the scope of a rehearing
`
`petition that had already been submitted by a proposed intervenor. Id.
`
`Finally, it would be entirely inappropriate for a panel to seek to limit the scope
`
`of review of its decision by the en banc Court. That would be analogous to a district
`
`court seeking to limit the scope of an appeal to this Court. Petitioners have not cited
`
`a single case in which that occurred, or where a panel sought to limit the scope of en
`
`banc review. The cases Petitioners cite merely recognize that district courts have
`
`some discretion to make appropriate case management decisions during proceedings
`
`before the district court.2 None of those cases suggests that one court may make a
`
`case management decision for another, or that a panel may make a case management
`
`decision that limits the en banc Court. This panel should not seek to limit en banc
`
`review, but should instead ensure that no issue is “insulated from review simply due
`
`to the posture of the parties.” Day at 965.
`
`This Court should reject Petitioners’ belated requests to retroactively impose
`
`
`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
`
`

`

`Case: 19-70115, 06/24/2020, ID: 11732791, DktEntry: 168, Page 6 of 8
`
`inappropriate conditions on BASF’s intervention, or to limit in advance the scope or
`
`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
`
`Court’s mandate.
`
`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
`
`

`

`Case: 19-70115, 06/24/2020, ID: 11732791, DktEntry: 168, Page 7 of 8
`
`CERTIFICATE OF COMPLIANCE
`
`I certify that this Reply complies with Federal Rule of Appellate Procedure
`
`27(d)(1)(E) because it has been prepared in Times New Roman 14-point font using
`
`Microsoft Word 2010. I further certify that it complies with Federal Rule of
`
`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
`
`
`
`
`
`

`

`Case: 19-70115, 06/24/2020, ID: 11732791, DktEntry: 168, Page 8 of 8
`
`CERTIFICATE OF SERVICE
`
`I hereby certify that on June 24, 2020, I filed the foregoing Reply with the
`
`Clerk of the Court for the United States Court of Appeals for the Ninth Circuit by
`
`using the appellate CM/ECF system.
`
`I certify that all participants in the case are registered CM/ECF users and that
`
`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
`
`
`
`
`
`
`
`
`
`
`
`

This document is available on Docket Alarm but you must sign up to view it.


Or .

Accessing this document will incur an additional charge of $.

After purchase, you can access this document again without charge.

Accept $ Charge
throbber

Still Working On It

This document is taking longer than usual to download. This can happen if we need to contact the court directly to obtain the document and their servers are running slowly.

Give it another minute or two to complete, and then try the refresh button.

throbber

A few More Minutes ... Still Working

It can take up to 5 minutes for us to download a document if the court servers are running slowly.

Thank you for your continued patience.

This document could not be displayed.

We could not find this document within its docket. Please go back to the docket page and check the link. If that does not work, go back to the docket and refresh it to pull the newest information.

Your account does not support viewing this document.

You need a Paid Account to view this document. Click here to change your account type.

Your account does not support viewing this document.

Set your membership status to view this document.

With a Docket Alarm membership, you'll get a whole lot more, including:

  • Up-to-date information for this case.
  • Email alerts whenever there is an update.
  • Full text search for other cases.
  • Get email alerts whenever a new case matches your search.

Become a Member

One Moment Please

The filing “” is large (MB) and is being downloaded.

Please refresh this page in a few minutes to see if the filing has been downloaded. The filing will also be emailed to you when the download completes.

Your document is on its way!

If you do not receive the document in five minutes, contact support at support@docketalarm.com.

Sealed Document

We are unable to display this document, it may be under a court ordered seal.

If you have proper credentials to access the file, you may proceed directly to the court's system using your government issued username and password.


Access Government Site

We are redirecting you
to a mobile optimized page.





Document Unreadable or Corrupt

Refresh this Document
Go to the Docket

We are unable to display this document.

Refresh this Document
Go to the Docket