Case: 19-70115, 07/30/2020, ID: 11772248, DktEntry: 176-2, Page 1 of 28
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`EXHIBIT 1
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`

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`Case: 19-70115, 07/30/2020, ID: 11772248, DktEntry: 176-2, Page 2 of 28
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`
`
`No. 19-70115
`
`UNITED STATES COURT OF APPEALS
`FOR THE NINTH CIRCUIT
`
`NATIONAL FAMILY FARM COALITION, et al.,
`Petitioners,
`
`v.
`
`U.S. ENVIRONMENTAL PROTECTION AGENCY, et al.,
`Respondents,
`
`and
`
`MONSANTO COMPANY, et al.,
`Intervenors-Respondents.
`
`On Petition for Review of Agency Action
`of the United States Environmental Protection Agency
`
`
`BRIEF OF AMICI CURIAE AMERICAN FARM BUREAU FEDERATION,
`AMERICAN SOYBEAN ASSOCIATION, NATIONAL COTTON COUNCIL
`OF AMERICA, NATIONAL ASSOCIATION OF WHEAT GROWERS,
`NATIONAL CORN GROWERS ASSOCIATION, AND NATIONAL
`SORGHUM PRODUCERS IN SUPPORT OF THE PETITIONS FOR
`REHEARING EN BANC
`
`
`
`
`
`
`Bartholomew J. Kempf
`Edmund S. Sauer
`BRADLEY ARANT BOULT CUMMINGS LLP
`1600 Division Street, Suite 700
`Nashville, TN 37203
`(615) 252-2374
`esauer@bradley.com
`
`Counsel for Amici Curiae
`
`
`
`
`
`
`
`
`
`
`
`

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`
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`CORPORATE DISCLOSURE STATEMENT
`Pursuant to Federal Rule of Appellate Procedure 26.1, the American Farm
`
`Bureau Federation, American Soybean Association, National Cotton Council of
`
`America, National Association of Wheat Growers, National Corn Growers
`
`Association, and National Sorghum Producers state that none of them has a parent
`
`corporation, nor does any publicly held corporation own 10% or more of the stock
`
`of any of them.
`
`
`
`i
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`

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`
`
`TABLE OF CONTENTS
`
`B.
`
`C.
`
`II. 
`
`CORPORATE DISCLOSURE STATEMENT ........................................................ i
`TABLE OF AUTHORITIES .................................................................................. iii
`INTEREST OF AMICI CURIAE .............................................................................1
`ARGUMENT ............................................................................................................5
`I.
`The Court Should Grant En Banc Review To Ensure That Affected
`Parties Receive Timely Notice Of Judicial Challenges To
`Administrative Orders. ...................................................................................5
`A.
`Federal Law Guarantees Interested Parties The Right To
`Receive Timely Notice Of And An Opportunity To Comment
`On Judicial Challenges To Agency Orders. .........................................5
`The Panel Opinion Conflicts With Case Law In Other Circuits
`And Injects Jurisdictional Uncertainty Into An Important Area
`Of The Law Needing National Uniformity. .......................................11
`The Court Should Grant En Banc Review To Clarify And
`Reaffirm Interested Parties’ Rights To Receive Notice Of And
`An Opportunity To Comment On Judicial Challenges To
`Administrative Orders. .......................................................................16 
`The Panel Opinion’s Failure To Properly Apply FIFRA’s “Substantial
`Evidence” Standard Further Warrants En Banc Review. .............................17 
`CONCLUSION .......................................................................................................19 
`CERTIFICATE OF COMPLIANCE ......................................................................19 
`CERTIFICATE OF SERVICE ...............................................................................20 
`
`
`
`
`
`
`ii
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`

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`
`
`TABLE OF AUTHORITIES
`
` Page(s)
`
`Cases
`Am. Rivers v. Fed. Energy Regulatory Comm’n,
`895 F.3d 32 (D.C. Cir. 2018) .............................................................................. 10
`Bennett v. Spear,
`520 U.S. 154 (1997) ............................................................................................ 12
`Biestek v. Berryhill,
`139 S. Ct. 1148 (2019) .................................................................................. 17, 18
`City of Benton v. Nuclear Regulatory Comm’n,
`136 F.3d 825 (D.C. Cir. 1998) ............................................................................ 12
`Entravision Holdings, LLC v. F.C.C.,
`202 F.3d 311 (D.C. Cir. 2000) .................................................................. 9, 10, 13
`Gottesman v. U.S. I.N.S.,
`33 F.3d 383 (4th Cir. 1994) .................................................................................. 8
`John D. Copanos & Sons, Inc. v. Food & Drug Admin.,
`854 F.2d 510 (D.C. Cir. 1988) .............................................................................. 9
`LaRouche’s Comm. for a New Bretton Woods v. F.E.C.,
`439 F.3d 733 (D.C. Cir. 2006) ........................................................................ 8, 11
`Martin v. F.E.R.C.,
`199 F.3d 1370 (D.C. Cir. 2000) .......................................................................... 10
`Mathews v. Eldridge,
`424 U.S. 319 (1976) .............................................................................................. 5
`Ogunbode v. Barr,
`780 F. App’x 628 (10th Cir. 2019) ....................................................................... 9
`Small Bus. in Telecomm’ns v. F.C.C.,
`251 F.3d 1015 (D.C. Cir. 2001) ................................................................ 9, 11, 14
`Sw. Bell Tel. Co. v. F.C.C.,
`180 F.3d 307 (D.C. Cir. 1999) ........................................................................ 8, 11
`
`iii
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`Vill. of Barrington, Illinois v. Surface Transp. Bd.,
`892 F.3d 252 (7th Cir. 2018) ................................................................................ 9
`Statutes
`5 U.S.C. § 551(6) ..................................................................................................... 12
`5 U.S.C. § 551(13) ................................................................................................... 12
`7 U.S.C. § 136n(a) ................................................................................................... 15
`7 U.S.C. § 136n(b) ....................................................................................... 12, 15, 17
`Rules
`Fed. R. App. P. 15 ............................................................................................ 5, 9, 16
`Fed. R. App. P. 15(a)(2)(C) ..............................................................................passim
`Fed. R. App. P. 15(d) ................................................................................................. 7
`Fed. R. App. P. 26.1 .................................................................................................... i
`Fed. R. App. P. 29 ...................................................................................................... 1
`Fed. R. App. P. 29-2 ................................................................................................... 1
`Other Authorities
`Bill Spiegel, To Spray or Not: Confusion Reigns Over Dicamba
`Ruling, Successful Farming (June 5, 2020),
`https://www.agriculture.com/news/crops/confusion-reigns-over-
`dicamba-ruling ...................................................................................................... 2
`Chris Clayton, Future Global Food Gap Remains, Progressive Farmer
`(Oct. 16, 2019),
`https://www.dtnpf.com/agriculture/web/ag/news/article/2019/10/16
`/ag-productivity-gains-needed-meet ..................................................................... 1
`Christopher Walljasper, Grains—Soybeans Fall Further on
`Coronavirus Demand Risks, Successful Farming (Apr. 14, 2020),
`https://www.agriculture.com/markets/newswire/grains-soybeans-
`fall-further-on-coronavirus-demand-risks-0 ......................................................... 7
`
`iv
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`Cotton: COVID-19 Spurs Record Downward Adjustments to Global
`Demand, AgFax (Apr. 17, 2020),
`https://agfax.com/2020/04/17/cotton-global-markets-covid-19-
`spurs-record-downward-adjustments-to-demand/ ................................................ 7
`Department of Agriculture Issues Statement on Dicamba Status,
`Missouri Department of Agriculture (June 5, 2020),
`https://agriculture.mo.gov/news/newsitem/uuid/48dc40af-e9b4-
`4f88-a496-879a0edfe0b8 ...................................................................................... 2
`Emily Unglesbee, Dicamba Under Scrutiny, The Progressive Farmer
`(Feb. 14, 2018), https://www.dtnpf.com/agriculture/web/ag/crops/
`article/2018/02/14/lawsuit-demands-epa-vacate-dicamba ................................. 16
`Emily Unglesbee, Soybean Decisions, The Progressive Farmer (Oct.
`17, 2019),
`https://www.dtnpf.com/agriculture/web/ag/crops/article/2019/10/1
`7/review-herbicide-tolerant-soybean .................................................................... 6
`Emily Unglesbee, Dicamba Lawsuit Setback, The Progressive Farmer
`(Jan. 14, 2019),
`https://www.dtnpf.com/agriculture/web/ag/crops/article/2019/01/1
`4/ninth-circuit-dicamba-battle-likely .................................................................. 16
`
`Farmers, Conservationists Challenge Trump’s EPA, Monsanto over
`Crop-Damaging Pesticide, Center for Food Safety (Feb. 12, 2018),
`https://www.centerforfoodsafety.org/press-releases/5255/farmers-
`conservationists-challenge-trumps-epa-monsanto-over-crop-
`damaging-pesticide ............................................................................................. 17
`MDA Announces Changes in Use of Dicamba Herbicide, Minnesota
`Department of Agriculture (June 8, 2020),
`https://www.mda.state.mn.us/mda-announces-changes-use-
`dicamba-herbicide ................................................................................................. 2
`National Cotton Council, The Economic Outlook for U.S. Cotton 41
`(2020), https://www.cotton.org/econ/reports/upload/
`20annmtg_FullVersion_Final.pdf ......................................................................... 7
`National Cotton Council, Soybeans, Business Insider,
`https://tinyurl.com/y3b3s4q5 (July 29, 2020) ....................................................... 7
`
`v
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`Statement from Texas Agriculture Commissioner Sid Miller on Ninth
`Circuit Ruling on Dicamba Registration, Texas Department of
`Agriculture (June 4, 2020),
`https://www.texasagriculture.gov/NewsEvents/NewsEventsDetails/
`tabid/76/Article/6057/STATEMENT-FROM-TEXAS-
`AGRICULTURE-COMMISSIONER-SID-MILLER-ON-NINTH-
`CIRCUIT-RULIN.aspx ......................................................................................... 3
`Statement on EPA’s Dicamba Cancellation Order, Center for Food
`Safety (June 8, 2020), https://www.centerforfoodsafety.org/press-
`releases/6034/statement-on-epas-dicamba-cancellation-order); .......................... 3
`University of Georgia, Cotton Budgets,
`https://agecon.uga.edu/extension/budgets.html .................................................... 7
`University of Missouri Extension, Southeast Missouri Crop Budget,
`https://extensiondata.missouri.edu/CountyPages/Scott/CropBudget
`s/Soybeans-RR-Extend.pdf ................................................................................... 6
`
`vi
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`INTEREST OF AMICI CURIAE1
`These amici—the American Farm Bureau Federation, American Soybean
`
`Association, National Cotton Council of America, National Association of Wheat
`
`Growers, National Corn Growers Association, and National Sorghum Producers
`
`(together, “the Growers”)—are national trade associations that represent farmers,
`
`ranchers, and their families nationwide. The Growers’ crops—which include
`
`soybeans, cotton, corn, wheat, and sorghum—provide the United States and the
`
`world with food, fuel, feed, and fiber.
`
`Decades of progress in agricultural biotechnology and farm management have
`
`given Growers the ability to increase production in order to meet rising global
`
`demand and food-security needs. Agricultural innovation and advancements in
`
`biotechnology are essential to meeting the needs of a world population projected to
`
`reach ten billion by 2050.2
`
`
`
`Growers have a direct and immediate interest in the continued availability of
`
`the three dicamba herbicides at issue in this case: XtendiMax, Engenia, and FeXapan
`
`
`1 This brief is submitted with a motion for leave under Circuit Rule 29-2. Amici
`affirm that no counsel for a party authored this brief in whole or in part and that no
`person other than amici, their members, or their counsel has made any monetary
`contributions intended to fund the preparation or submission of this brief. Fed. R.
`App. P. 29.
`2 See Chris Clayton, Future Global Food Gap Remains, Progressive Farmer (Oct.
`16, 2019), https://www.dtnpf.com/agriculture/web/ag/news/article/2019/10/16/ag-
`productivity-gains-needed-meet.
`
`1
`
`

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`(collectively the “Dicamba Products”). Growers in numerous states use the Dicamba
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`Products on soybean and cotton crops that have been genetically engineered to be
`
`resistant to dicamba. The “over-the-top” dicamba-tolerant technology is critical for
`
`Growers—it arms them with the tools they need to meet a pressing challenge to their
`
`soybean and cotton crops: weeds that are resistant to glyphosate.
`
`The Panel Opinion’s vacatur of the registrations of the Dicamba Products and
`
`sua sponte issuance of its mandate “forthwith” sent shockwaves through American
`
`agriculture. The widespread uncertainty and confusion3 that followed occurred
`
`during the worst possible time for American farmers—right in the middle of the
`
`growing season. Several state agricultural commissioners captured the sentiment in
`
`farm country. In Minnesota, Agriculture Commissioner Thom Petersen called the
`
`vacatur “very untimely for our farmers as many had already purchased the herbicide
`
`for this growing season . . . [t]iming is critical for farmers to apply the products.”4
`
`Missouri’s Director of Agriculture concluded that “[a]n overnight decision making
`
`this tool illegal is not something that should be done mid-growing season.”5 The
`
`
`3 Bill Spiegel, To Spray or Not: Confusion Reigns Over Dicamba Ruling,
`Successful Farming (June 5, 2020),
`https://www.agriculture.com/news/crops/confusion-reigns-over-dicamba-ruling.
`4 MDA Announces Changes in Use of Dicamba Herbicide, Minnesota Department
`of Agriculture (June 8, 2020), https://www.mda.state.mn.us/mda-announces-
`changes-use-dicamba-herbicide.
`5 Department of Agriculture Issues Statement on Dicamba Status, Missouri
`Department of Agriculture (June 5, 2020), https://agriculture.mo.gov/news/
`newsitem/uuid/48dc40af-e9b4-4f88-a496-879a0edfe0b8.
`
`2
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`

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`Texas Agriculture Commissioner stated that the vacatur and mandate created “very
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`significant confusion and chaos among soybean and cotton growers and applicators
`
`. . . who were intending to apply the herbicide today, tomorrow and over the coming
`
`weeks.”6
`
`While the EPA mitigated some of these effects with its June 8, 2020 Final
`
`Cancellation Order of Three Dicamba Products (“Cancellation Order”),7 the Panel
`
`Opinion created a cloud of uncertainty and concern as to the legal status of the use
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`of the Dicamba Products.8 Due to these uncertainties, Growers have faced
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`significant constraints and pressures in deciding whether and when to apply the
`
`Dicamba Products.9
`
`
`6 Statement from Texas Agriculture Commissioner Sid Miller on Ninth Circuit
`Ruling on Dicamba Registration, Texas Department of Agriculture (June 4, 2020),
`https://www.texasagriculture.gov/NewsEvents/NewsEventsDetails/tabid/76/Article
`/6057/STATEMENT-FROM-TEXAS-AGRICULTURE-COMMISSIONER-SID-
`MILLER-ON-NINTH-CIRCUIT-RULIN.aspx (emphasis added).
`7 Among other things, the Cancellation Order authorized limited use of Dicamba
`Products (through July 31, 2020) that had been packaged, labeled, and released for
`shipment prior to the date of the vacatur.
`8 This uncertainty resulted from: (i) Petitioners publicizing threats against users of
`the Dicamba Products (“users that continue to not seek alternatives [to the
`Dicamba Products] should be on notice that they are using a harmful, defective,
`and unlawful product,” Statement on EPA’s Dicamba Cancellation Order, Center
`for Food Safety (June 8, 2020), https://www.centerforfoodsafety.org/press-
`releases/6034/statement-on-epas-dicamba-cancellation-order); (ii) Petitioners filing
`an emergency motion with the Court urging the Panel to overrule the Cancellation
`Order and immediately ban the use of the Dicamba Products (Doc. No. 127-1); and
`(iii) the potential for legal challenges by Petitioners or others to the Cancellation
`Order in a different venue.
`9 Under normal circumstances, growers apply the Dicamba Products based on
`
`3
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`

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`The Panel Opinion affects the predictability, efficiency, and sustainability of
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`Growers’ farming operations and their ability to rely on predictable and science-
`
`based regulatory decision-making and governmental oversight. If left undisturbed,
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`the Panel Opinion’s unprecedented weakening of Rule 15(a)(2)(C)’s notice
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`requirement would leave Growers and other members of the public guessing as to
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`whether an administrative order is subject to invalidation on judicial review.
`
`Likewise, the Panel Opinion’s misconception and misapplication of FIFRA’s
`
`substantial evidence standard directly conflicts with existing law and jeopardizes
`
`Growers’ ability to rely on predictable and expertise-driven regulatory decisions.
`
`The Court should grant en banc review to address and resolve these important issues.
`
`
`factors such as growth cycle, levels of weed infestation, weather (e.g., rain and
`wind), and other factors. In many cases, growers legally cannot apply product if
`the label prohibits application during certain conditions. In 2020, if a grower
`waited even a day or two for legal clarity, they may have missed a narrow window
`of opportunity to apply the Dicamba Products that would be later foreclosed due to
`rain, wind, or other factors. Some growers may have decided to apply the
`Dicamba Products earlier than they would have preferred for fear of a negative
`court ruling—thus risking a late season weed infestation that could negatively
`impact crop yields.
`
`4
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`

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`
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`I.
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`
`
`ARGUMENT
`THE COURT SHOULD GRANT EN BANC REVIEW TO ENSURE
`THAT AFFECTED PARTIES RECEIVE TIMELY NOTICE OF
`JUDICIAL CHALLENGES TO ADMINISTRATIVE ORDERS.
`A.
`Federal Law Guarantees Interested Parties The Right To Receive
`Timely Notice Of And An Opportunity To Comment On Judicial
`Challenges To Agency Orders.
`Due process is a fundamental requirement of American law. It ensures that
`
`interested parties receive notice of threatened state action and have “the opportunity
`
`to be heard at a meaningful time and in a meaningful manner.” Mathews v. Eldridge,
`
`424 U.S. 319, 333 (1976) (quotations omitted).
`
`
`
`These important due process protections are embodied in Federal Rule of
`
`Appellate Procedure 15, which governs judicial review of agency orders. Rule
`
`15(a)(2)(C) in particular provides that any petition for review of an agency order
`
`must “specify the order or part thereof to be reviewed.”
`
`
`
`Rule 15(a)(2)(C)’s specification requirement promotes finality, certainty, and
`
`predictability. It guarantees that parties to an administrative proceeding and others
`
`having a direct property interest in the agency order know whether an administrative
`
`determination is final or under judicial review. For example, BASF and EID
`
`cogently explain in their petitions for rehearing en banc why they were entitled to—
`
`and deprived of—notice that their registrations were being challenged in court and
`
`would be adjudicated in this appeal.
`
`
`
`The importance of Rule 15(a)(2)(C)’s specification requirement, however,
`
`5
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`

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`extends far beyond those parties with immediate license or registration interests at
`
`stake. Because federal agencies frequently address and resolve important national
`
`policy issues through administrative orders, the validity of those orders frequently
`
`and substantially affects countless other members of the public as well.
`
`
`
`For example, farmers purchase and use numerous FIFRA-registered pesticide
`
`products, including herbicides, insecticides, and fungicides. They make planting
`
`decisions and significant, up-front financial investments—totaling in the billions of
`
`dollars each year—based on the rules, regulations, and administrative orders in place
`
`at the time plans are made. Farmers (like many other market participants) depend
`
`on certainty and finality in making those decisions—they need to know the
`
`availability of certain products and whether those products might be declared
`
`unlawful in a subsequent judicial proceeding.
`
`
`
`Here, in the 2020 growing season, soybean and cotton farmers planted an
`
`estimated 64 million acres of dicamba-tolerant crops.10 Growers invested billions of
`
`dollars11 to purchase dicamba-tolerant seeds and hundreds of millions of dollars in
`
`
`10 See Emily Unglesbee, Soybean Decisions, The Progressive Farmer (Oct. 17,
`2019), https://www.dtnpf.com/agriculture/web/ag/crops/article/2019/10/17/review-
`herbicide-tolerant-soybean (estimating 54 million acres); National Cotton Council
`Letter to EPA, Attached as Ex. 4 to Growers’ Amicus Brief on Petitioners’
`Emergency Motion at 1 (estimating 9.630 million acres).
`11 University of Missouri Extension, Southeast Missouri Crop Budget,
`https://extensiondata.missouri.edu/CountyPages/Scott/CropBudgets/Soybeans-RR-
`Extend.pdf (pricing dicamba-tolerant soybean seeds at $62/acre).
`
`6
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`

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`dicamba herbicides.12 Combined with additional massive investments in fertilizer,
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`farm machinery and equipment, and labor (among others), growers entered the 2020
`
`growing season with billions invested and borrowed, and with their livelihoods on
`
`the line.13
`
`
`
`Rule 15(a)(2)(C)’s specification requirement ensures that these stakeholders
`
`receive notice of any judicial challenge to administrative decisionmaking. This
`
`notice enables interested parties to intervene within 30 days of the petition’s filing
`
`as Rule 15(d) explicitly requires, giving them an opportunity to be heard at a
`
`
`12 American Soybean Association Letter to EPA, Attached as Ex. 3 to Growers’
`Amicus Brief on Petitioners’ Emergency Motion at 1; University of Georgia,
`Cotton Budgets, https://agecon.uga.edu/extension/budgets.html (estimating cost of
`Xtendimax at $11.00/acre per application, for two applications).
`13 Moreover, soybean and cotton growers faced an already tenuous economic
`situation due to other factors, including ongoing trade tensions with China and the
`COVID-19 global pandemic. Since 2018, loss of market access in China caused
`cotton futures prices to fall from the mid-$0.90s in June 2018 to the upper-$0.50s
`in August 2019 and soybean prices to fall from $10.39 per bushel in May 2018 to
`$8.68 per bushel in June 2020. National Cotton Council, The Economic Outlook
`for U.S. Cotton 41 (2020), https://www.cotton.org/econ/reports/upload/
`20annmtg_FullVersion_Final.pdf and Soybeans, Business Insider,
`https://markets.businessinsider.com/commodities/soybeans-price. The COVID-19
`pandemic caused livestock producers to reduce herd sizes, which led to a fall in
`demand for soymeal and a reduction in soybean prices. Christopher Walljasper,
`Grains—Soybeans Fall Further on Coronavirus Demand Risks, Successful
`Farming (Apr. 14, 2020), https://www.agriculture.com/markets/newswire/grains-
`soybeans-fall-further-on-coronavirus-demand-risks-0. The pandemic also caused a
`collapse in cotton demand, resulting in impacts across the cotton industry. Cotton:
`COVID-19 Spurs Record Downward Adjustments to Global Demand, AgFax
`(Apr. 17, 2020), https://agfax.com/2020/04/17/cotton-global-markets-covid-19-
`spurs-record-downward-adjustments-to-demand/.
`
`7
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`

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`meaningful time—i.e., before the validity of the order is adjudicated. Even beyond
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`participation, the required notice gives interested members of the public, including
`
`downstream consumers and other market participants, important information that is
`
`critical to make fully informed decisions, many of them on a daily basis.
`
`
`
`To protect these interests in certainty, finality, and predictability, federal
`
`courts have strictly interpreted Rule 15(a)(2)(C)’s specification requirement.
`
`Although this Court has not previously addressed Rule 15(a)(2)(C), other federal
`
`circuits have consistently held that courts lack jurisdiction to consider agency orders
`
`that are not specifically designated in a petition for review. See, e.g., LaRouche’s
`
`Comm. for a New Bretton Woods v. F.E.C., 439 F.3d 733, 739 (D.C. Cir. 2006)
`
`(holding that court lacked jurisdiction to consider order denying motion to
`
`reconsider because order was not specified in petition); Sw. Bell Tel. Co. v. F.C.C.,
`
`180 F.3d 307, 313 (D.C. Cir. 1999) (holding that undesignated underlying order was
`
`unreviewable even
`
`though petition specifically appealed order denying
`
`reconsideration); Gottesman v. U.S. I.N.S., 33 F.3d 383, 388 (4th Cir. 1994) (holding
`
`that petition designating preliminary order in administrative proceeding did not
`
`effectively bring up for review separate order).
`
`
`
`Courts have correctly recognized that, under Rule 15(a)(2)(C), it does not
`
`matter if the petition designates another order within the same administrative
`
`proceeding as the undesignated order. For a court to exercise jurisdiction over an
`
`8
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`

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`order, the petition must “specific[ally]” designate it. See, e.g., Vill. of Barrington,
`
`Illinois v. Surface Transp. Bd., 892 F.3d 252, 266-67 (7th Cir. 2018) (holding that
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`court lacked jurisdiction to consider order not designated in petition even though
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`other related orders in same administrative proceeding were designated); Small Bus.
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`in Telecomm’ns v. F.C.C., 251 F.3d 1015, 1022 (D.C. Cir. 2001) (same); John D.
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`Copanos & Sons, Inc. v. Food & Drug Admin., 854 F.2d 510, 527 (D.C. Cir. 1988)
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`(same).
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`
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`Nor is it sufficient for the petition to mention the order sought to be appealed
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`without specifically designating that order for appeal. See, e.g., Ogunbode v. Barr,
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`780 F. App’x 628, 633 (10th Cir. 2019) (holding that references to order denying
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`motion fell short of giving required notice that petitioner was seeking review of that
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`order under Rule 15); Entravision Holdings, LLC v. F.C.C., 202 F.3d 311, 314 (D.C.
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`Cir. 2000) (holding that undesignated underlying order was unreviewable even
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`though petition specifically appealed order denying reconsideration and mentioned
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`the underlying order).
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`
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`Rather, Rule 15(a)(2)(C)’s “plain language,” John D. Copanos & Sons, Inc.,
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`854 F.2d at 527, requires petitioners to specify with particularity in the petition the
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`order that is being challenged so that all interested parties know that the order itself
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`is under review. Confusion and uncertainty would abound if Rule 15(a)(2)(c)
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`allowed litigants or reviewing courts to expand the scope of judicial review beyond
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`9
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`Case: 19-70115, 07/30/2020, ID: 11772248, DktEntry: 176-2, Page 18 of 28
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`the designated order to encompass other seemingly final and unappealed agency
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`decisions.
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`Of course, courts do not apply Rule 15(a)(2)(C)’s specification requirement
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`in an unnecessarily formalistic way. A mistaken or inexact specification may be
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`effective “if the petitioner's intent to seek review of a specific order can be fairly
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`inferred from the petition for review or from other contemporaneous filings, and the
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`respondent is not misled by the mistake.” Entravision Holdings, LLC, 202 F.3d at
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`313.
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`
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`For example, a federal court exercised jurisdiction over an undesignated order
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`even though the petition mistakenly designated a subsequent order denying
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`rehearing because documents filed contemporaneously with the petition made the
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`petitioner’s intentions clear. See Martin v. F.E.R.C., 199 F.3d 1370, 1372–73 (D.C.
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`Cir. 2000). Exercising jurisdiction was proper in that case because the petitioner
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`contemporaneously filed both a motion to stay the underlying order pending appeal
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`and a docketing statement indicating an intention to challenge the underlying order,
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`and “the agency was aware from the outset that [petitioner] meant to seek review of
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`the [underlying order.]” Id.; accord Am. Rivers v. Fed. Energy Regulatory Comm'n,
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`895 F.3d 32, 44 (D.C. Cir. 2018) (review proper where petitioner’s intent to appeal
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`order was obvious given contemporaneous motion to consolidate, docketing
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`statement, statement of issues, and underlying decisions attached to the appeal).
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`10
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`Case: 19-70115, 07/30/2020, ID: 11772248, DktEntry: 176-2, Page 19 of 28
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`
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`But this application of Rule 15(a)(2)(C)’s specification requirement is strictly
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`and properly limited to circumstances where filings contemporaneous with the
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`petition itself clearly and objectively convey an intention to challenge the
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`undesignated order. Accordingly, a party’s merits brief is too late to make the
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`requisite designation. See, e.g., LaRouche’s, 439 F.3d at 739 (holding that exception
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`was inapplicable because contemporaneous filings did not objectively indicate
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`intention to appeal order denying motion to reconsider even though briefing did);
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`Sw. Bell Tel. Co., 180 F.3d at 313 (same). Likewise, a motion or other filing weeks
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`or months after the petition is filed is too late. See, e.g., Small Bus. in Telecomm’ns,
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`251 F.3d at 1022 (holding that motion filed four months after petition is too late to
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`correct deficiency in petition).
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`B.
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`The Panel Opinion Conflicts With Case Law In Other Circuits And
`Injects Jurisdictional Uncertainty Into An Important Area Of The
`Law Needing National Uniformity.
`The Panel Opinion is the first in this Circuit to address and apply Rule
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`
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`15(a)(2)(C)’s specification requirement. Its approach, however, cannot be squared
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`with Rule 15(a)(2)(C)’s plain language, its underlying purpose, or existing case law.
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`The Court should grant en banc review and adopt an approach that is faithful to Rule
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`15(a)(2)(C) and consistent with existing law. National uniformity is needed on this
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`important jurisdictional issue and the Court should grant review here to restore it.
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`
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`Like BASF and EID, America’s farmers were not given the required notice
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`11
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`Case: 19-70115, 07/30/2020, ID: 11772248, DktEntry: 176-2, Page 20 of 28
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`that the registration orders for Engenia and FeXapan were being challenged in this
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`action. The EPA’s registration order is the “final disposition” of the adjudicatory
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`process that permits the sale or distribution of a pesticide product. 5 U.S.C. § 551(6).
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`That registration order is the final agency action for purposes of judicial review. See
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`5 U.S.C. § 551(13); 7 U.S.C. § 136n(b). Thus, to challenge the registrations for
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`XtendiMax, Engenia, and FeXapan, Petitioners were required to designate in their
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`petition the registration orders for those products.
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`
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`Petitioners, however, did not do so. Instead, they designated an agency
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`decision document that was issued before the three registration orders were
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`separately issued. That designated document does not constitute final agency action
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`subject to judicial review. An action is generally final only if it both (1) “mark[s]
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`the consummation of the agency’s decisionmaking process” and (2) is “one by which
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`rights or obligations have been determined, or from which legal consequences will
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`flow.” Bennett v. Spear, 520 U.S. 154, 177–78 (1997) (quotations omitted). The
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`document designated here did neither. It did not end the EPA’s decisionmaking
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`process—it was simply one step in the administrative process that ultimately
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`terminated in reviewable registration orders. Nor did it authorize the