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Oral Argument Held April 21, 2020
IN THE UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
No. 19-70115
NATIONAL FAMILY FARM COALITION, ET AL.
Petitioners,
v.
U.S. ENVIRONMENTAL PROTECTION AGENCY, ET AL.
Respondents,
and
MONSANTO COMPANY,
Intervenor-Respondent.
______________________
On Petition For Review of Agency Action
of the United States Environmental Protection Agency
_______________________________
EPA’S RESPONSE TO PETITIONERS’ EMERGENCY MOTION TO
ENFORCE THIS COURT’S VACATUR AND TO HOLD EPA IN CONTEMPT
__________________________
Jonathan D. Brightbill
Principal Deputy Assistant Attorney General
Environment and Natural Resources Division
Of Counsel:
Scott Garrison
Michele Knorr
U.S. Environmental Protection Agency
Office of General Counsel
Pesticides & Toxics Substances Law
Office
1200 Pennsylvania Avenue, NW
Washington, D.C. 20460
June 16, 2020

Sarah A. Buckley
Trial Attorney
J. Brett Grosko
Senior Trial Attorney
Environment and Natural Resources Division
U.S. Department of Justice
P.O. Box 7611
Washington, D.C. 20044
(202) 616-7554 (Buckley)
(202) 305-0342 (Grosko)
sarah.buckley@usdoj.gov
brett.grosko@usdoj.gov

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TABLE OF CONTENTS
INTRODUCTION ....................................................................................................... 1
BACKGROUND .......................................................................................................... 3
EPA’s Registration Decision and the Court’s Order ........................... 3
EPA’s Cancellation Order and Existing Stocks Provision.................. 5
ARGUMENT................................................................................................................. 7

The Court’s vacatur order was clear and definitive and should not be
expanded or revised. ................................................................................ 9
Petitioners’ desired “clarification” goes beyond the relief authorized
by FIFRA and is contrary to basic principles of administrative law.10
The Court need not and should not recall the mandate to rule on the
unaddressed ESA issues. ....................................................................... 13

The Cancellation Order did not violate “a specific and definite court
order” and thus cannot give rise to contempt sanctions. .................. 14
The Cancellation Order was consistent with the vacatur order. ...... 18

CONCLUSION ........................................................................................................... 21

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Table of Authorities
Cases
Aerojet-Gen. Corp. v. Am. Arbitration Ass’n,
478 F.2d 248 (9th Cir. 1973) ............................................................................................. 9
Ahearn v. Int’l Longshore & Warehouse Union,
721 F.3d 1122 (9th Cir. 2013) ......................................................................................... 15
Cal. Wilderness Coal. v. Dep’t of Energy,
631 F.3d 1072 (9th Cir. 2011) ......................................................................................... 10
Calderon v. Thompson,
523 U.S. 538 (1998) ...................................................................................................... 8, 10
Chambers v. NASCO, Inc.,
501 U.S. 32 (1991) ............................................................................................................ 14
FCC v. Pottsville Broad. Co.,
309 U.S. 134 (1940) .......................................................................................................... 11
Fed. Power Comm’n v. Idaho Power Co.,
344 U.S. 17 (1952) ...................................................................................................... 10, 11
Gates v. Shinn,
98 F.3d 463 (9th Cir. 1996).............................................................................................. 15
Greater Bos. Television Corp. v. FCC,
463 F.2d 268 (D.C. Cir. 1971) ................................................................................... 13, 21
Int’l Longshoremen’s Ass’n v. Phila. Marine Trade Ass’n,
389 U.S. 64......................................................................................................................... 17
Int’l Union, United Mine Workers of Am. v. Bagwell,
512 U.S. 821 (1994) .......................................................................................................... 14
M2 Software Inc. v. Madacy Entm’t,
463 F.3d 870 (9th Cir. 2006) ............................................................................................. 8
i

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Monsanto Co. v. Geertson Seed Farms,
130 S. Ct. 2743 (2010) ................................................................................................ 11, 21
Nat’l Family Farm Coal. v. EPA,
Case No. 17-70196 ............................................................................................................. 4
Nat. Res. Def. Council v. EPA,
676 F. Supp. 2d 307 (S.D.N.Y. 2009)............................................................................... 6
Pollinator Stewardship Council v. EPA,
806 F.3d 520 (9th Cir. 2015) ................................................................................... 1, 6, 12
Reno Air Racing Ass’n, Inc. v. McCord,
452 F.3d 1126 (9th Cir. 2006) ......................................................................................... 15
Taggart v. Lorenzen,
139 S. Ct. 1795 (2019) ...................................................................................................... 15
United States Code
7 U.S.C. § 136a .................................................................................................................. 5, 12
7 U.S.C. § 136a(a) ................................................................................................ 2, 11, 12, 19
7 U.S.C. § 136a(c)(7)(B) ......................................................................................................... 4
7 U.S.C. § 136d(a)(1) .............................................................................................................. 6
7 U.S.C. § 136j(a)(1) ............................................................................................................... 5
7 U.S.C. § 136j(a)(1)(A) .................................................................................................... 5, 11
7 U.S.C. § 136j(a)(2)(F) ........................................................................................................ 20
7 U.S.C. § 136j(a)(2)(G) ................................................................................................... 5, 12
7 U.S.C. § 136j(a)(2)(H) ....................................................................................................... 12
7 U.S.C. § 136j(a)(2)(I) ......................................................................................................... 12
ii

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7 U.S.C. § 136j(a)(2)(K).................................................................................................... 6, 12
7 U.S.C. § 136j(a)(2)(S) ......................................................................................................... 12
7 U.S.C. § 136l......................................................................................................................... 5
7 U.S.C. § 136n(a) ................................................................................................................. 21
7 U.S.C. § 136n(b) ...................................................................................................... 8, 10, 13
Federal Rules of Civil Procedure
Fed. R. Civ. P. 65(d) ............................................................................................................. 16
Federal Register
56 Fed. Reg. 29,362 (June 26, 1991)............................................................................... 6, 19
72 Fed. Reg. 68,580 (Dec. 5, 2007) ...................................................................................... 6
85 Fed. Reg. 34,622 (June 5, 2020) ....................................................................................... 6

iii

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INTRODUCTION
Petitioners’ motion to “Enforce This Court’s Vacatur and to Hold EPA in
Contempt” (“Pet’rs Mot.”) (Dkt. 127-1), is a thinly-veiled attempt to revive arguments
the Court already rejected or declined to reach. It should be denied.
EPA fully complied with the Court’s June 3, 2020 decision vacating three
pesticide registrations for dicamba-based pesticide products. Those products remain
unregistered. EPA has not taken any action to revive the registrations. EPA’s June 8,
2020 Cancellation Order (Dkt. 127-3) reinforces the Court’s order, banning further
distribution and sale of existing stocks and facilitating return to the manufacturer. It
takes responsible steps to avoid unregulated and inappropriate use of existing stocks
that may otherwise result. See Cancellation Order at 11. Petitioners’ argument that this
action violates the Court’s vacatur order misconstrues the Federal Insecticide,
Fungicide, and Rodenticide Act (“FIFRA”), the vacatur, and the Cancellation Order.
The petition for review (as construed by the Court) sought vacatur of the
registrations for three dicamba products. The Court granted this relief, taking the
extraordinary step of issuing the mandate immediately. However, as EPA explained in
prior briefing in this case, see Proposed EPA Response to Petitioners’ Supplemental
Brief (“EPA Suppl. Resp.”) (Dkt. 121), and as this Court has recognized in prior
cases, Pollinator Stewardship Council v. EPA, 806 F.3d 520 (9th Cir. 2015) (opinion
amended on rehearing), pesticide registrations authorize the sale and distribution of
pesticides, and govern the conditions for using that registered pesticide. See 7 U.S.C.
1

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§ 136a(a) (“Except as provided by this subchapter, no person in any State may
distribute or sell . . . any pesticide that is not registered under this subchapter.”
(emphasis added)); see also Cancellation Order at 2-3 (discussing relevant statutory
provisions and administrative precedents in more detail). Accordingly, rescission of a
pesticide registration (either by judicial or administrative action) only makes it illegal to
distribute or sell that pesticide. It does not outlaw use of products already legally
purchased.
Petitioners’ unsuccessful attempt to seek an injunction on use of the dicamba
products in their post-argument supplemental brief implicitly recognized this
distinction. Dkt. 115-1 at 9-10. The Court declined to grant that additional relief (Dkt.
125 at 56), after EPA submitted a proposed response illustrating why such an
injunction was inappropriate (Dkt. 121). Instead, the Court limited its decision to the
relief actually requested in the petition for review: vacatur of the registrations.
Against this background, there is no legal or factual basis for Petitioners’
allegation that EPA violated the Court’s order by providing for a responsible winddown of existing stocks instead of banning their use immediately and completely.
Simply put, EPA can hardly be faulted for not complying with an order the Court
never issued, especially when immediately banning use of existing stocks of these
pesticides, as Petitioners advocate, would have draconian effects on the U.S.
agricultural system. See Cancellation Order at 5-11. Indeed, Petitioners’ request to
clarify the Court’s order is a concession that grounds for contempt are lacking.
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Moreover, the action EPA took was entirely lawful and appropriate. While the
Court’s decision did not directly affect use of existing stocks, vacatur of the
registrations does have one significant, and potentially problematic, indirect effect on
pesticide use. When a registration is vacated, misuse of that product is no longer a
violation of FIFRA. The Cancellation Order addresses this indirect and potentially
disruptive environmental harm. The Order plugs a regulatory gap by ensuring that
existing stocks of these newly-unregistered pesticides are used safely and
appropriately, and only for a limited period of time. See Cancellation Order at 5. As
EPA explained, this necessary and responsible regulatory action is expressly
authorized by FIFRA. See id. at 3-4.
There are numerous other problems with Petitioners’ Motion. For example,
Petitioners’ request that the Court recall the mandate so that Petitioners can have
another opportunity to litigate their Endangered Species Act claims and raise entirely
new merits arguments distinguishing over-the-top uses from other uses is wholly
unwarranted. But the most important point is that EPA’s Cancellation Order is,
contrary to Petitioners’ distorted characterization, an entirely appropriate and
responsible response to this Court’s decision.
BACKGROUND
EPA’s Registration Decision and the Court’s Order
Petitioners sought review of EPA’s action to amend the FIFRA registration for
a dicamba-based pesticide product, XtendiMax. Exercising its authority under 7
3

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U.S.C. § 136a(c)(7)(B), EPA issued the conditional registration for Xtendimax on
November 1, 2018, including the “new use” of the product over-the-top of cotton
and soybean genetically modified to tolerate dicamba. The conditional registration
superseded the prior registration for that product, which was set to expire on
November 9, 2018. ER0065; cf. Nat’l Family Farm Coal. v. EPA, Case No. 17-70196,
Order (Jan. 10, 2019) (“Mootness Order”) (finding 2016 registration “no longer has
any legal effect”). EPA later issued conditional registrations to BASF and DuPont for
their similar products (Engenia and FeXapan). ER0121; ER0167. All three
registrations included previously approved uses in addition to the new over-the-top
uses. 1
After briefing and argument, the Court issued a decision on June 3, 2020. Dkt.
125. The Court’s decision construed the petition to encompass XtendiMax, Engenia,
and FeXapan, over EPA and Monsanto’s objection. Id. 2 The Court further concluded
that all three registrations were invalid under FIFRA and ordered the registrations
vacated. Id. at 56 (“Registrations VACATED.”). The Court further ordered the
mandate to issue the same day. Dkt. 126.

Other uses permitted under the previously approved labels include, for
example, weed control in asparagus,corn, and sorghum. See ER0026.
1

A fourth over-the-top dicamba product, Syngenta’s Tavium, was registered on
April 5, 2020, and is not part of the litigation.
4
2

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EPA’s Cancellation Order and Existing Stocks Provision
The Court’s vacatur eliminated the registrations for Xtendimax, Engenia, and
FeXapan. Existing stocks of these products thus became unregistered, effective
immediately upon issuance of the mandate. See Cancellation Order at 1. This action
removed the license to “distribute or sell” those products, see 7 U.S.C. § 136a, and
made further distribution or sale of the now-unregistered products subject to potential
civil or criminal penalties, id. §§ 136l, 136j(a)(1)(A).
There is, however, no corresponding provision of FIFRA that makes use of
unregistered pesticides illegal. See id. § 136j(a)(1) (providing it is unlawful to sell or
distribute “any pesticide that is not registered under section 136a of this title or whose
registration has been canceled or suspended,” unless otherwise authorized (emphasis
added)). There is also no provision that requires that unregistered pesticides—even
formerly registered pesticides—must be used according to their labels. See id.
§ 136j(a)(2)(G) (providing it is a violation of FIFRA to use a registered pesticide in a
manner inconsistent with its labeling). Thus, where there are “existing stocks”3 of an
unregistered pesticide—regardless of how the pesticide became unregistered—already

Existing stocks are “those stocks of a registered pesticide product which are
currently in the United States and which have been packaged, labeled, and released for
shipment prior to the effective date of the [cancellation] action.” Existing Stocks of
Pesticide Products, Statement of Policy, 56 Fed. Reg. 29,362, 29,362 (June 26, 1991).
3

5

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in the possession of users (for example, certified applicators, including growers),
FIFRA neither directly prohibits nor regulates their use.
FIFRA does, however, provide EPA with authority to address this regulatory
gap. Specifically, 7 U.S.C. § 136d(a)(1) authorizes EPA, in appropriate circumstances,
to “permit the continued sale and use of existing stocks of a pesticide whose
registration is suspended or canceled . . . under such conditions, and for such uses as
the Administrator determines that such sale or use is not inconsistent with the
purposes of [FIFRA].” Because 7 U.S.C. § 136j(a)(2)(K) makes the failure to comply
with a cancellation order enforceable under FIFRA, EPA can establish enforceable
terms and conditions for the disposition of existing stocks in such an order. Those
conditions can and often do include a provision for limited use of existing stocks
consistent with the previously approved labeling. See Cancellation Order at 3; see also,
e.g., 85 Fed. Reg. 34,622 (June 5, 2020); 72 Fed. Reg. 68,580 (Dec. 5, 2007).
EPA has consistently interpreted its existing stocks authority to apply whether
a registration is cancelled by administrative action or vacated by court order. See
Cancellation Order at 3 (citing cancellation orders following vacatur in Natural
Resources Defense Council v. EPA, 676 F. Supp. 2d 307 (S.D.N.Y. 2009), and Pollinator
Stewardship Council v. EPA, 806 F.3d 520 (9th Cir. 2015)).
EPA’s Cancellation Order states that the Court’s vacatur caused Xtendimax,
Engenia, and FeXapan to become unregistered. Cancellation Order at 1. And with
respect to existing stocks only, the Cancellation Order:
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(a) prohibits further sale or distribution of existing stocks by the registrants,
except for purposes of proper disposal;
(b) bars further sale or distribution of existing stocks for persons other than the
registrant except for disposal or to facilitate return to the registrant, unless
otherwise allowed below;
(c) allows limited distribution and sale of existing stocks that are in the
possession of commercial applicators for the purpose of facilitating use no
later than July 31, 2020; and
(d) prohibits any use of existing stocks inconsistent with the previouslyapproved labeling and prohibits all use after July 31, 2020.
Id. at 11. In short, the Cancellation Order ensures that existing stocks of these nowunregistered products can lawfully be returned to the registrant, transported for
disposal, and be used for a limited time and only in accordance with previously
approved label restrictions that reduce the risk of adverse effects.
ARGUMENT
EPA fully complied with this Court’s vacatur, issuing a Cancellation Order
pursuant to FIFRA and consistent with prior EPA actions stretching back over 20
years. Petitioners’ motion is not only procedurally and substantively unsound; it is
internally inconsistent.
Petitioners first ask the Court to recall its mandate in order to “clarify” the
Court’s order and provide additional relief. See Pet’rs Mot. at 3-4, 7, 19-20, 23-26; id.,
Form 16 at 1 (Dkt. 127-4) (requesting recall of the mandate). However, recalling the
mandate is an extraordinary measure to be exercised only for “good cause” and to
“prevent injustice.” It is not a vehicle for Petitioners to seek an additional ruling or
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remedy, particularly when the court granted the precise relief Section 136n(b)
authorizes and Petitioners requested: vacatur.
Petitioners’ request that the Court hold EPA and Administrator Wheeler in
contempt strays even further afield of the applicable legal standard. Petitioners have
not come close to the clear and convincing showing that the EPA violated a specific
and definite order of the court necessary to warrant the severe remedy of contempt.
EPA’s Cancellation Order is consistent with the vacatur order and a lawful exercise of
EPA’s FIFRA authority. The Court issued no injunction, despite Petitioners eleventhhour request for one. As evidenced by Petitioners’ call for clarification, the Court’s
vacatur order did not enjoin use of existing stocks already lawfully sold and
distributed or EPA’s authority to issue a cancellation order addressing existing stocks,
as the Agency has done in similar circumstances.
Finally, Petitioners cannot seek judicial review of the Cancellation Order in the
guise of a motion to “enforce” the Court’s vacatur. The Cancellation Order is a
separate agency action that must, per FIFRA’s jurisdictional provisions, be reviewed
in district court. Petitioners’ motion should be denied.
Petitioners demonstrate no “exceptional circumstances” supporting
recall of the mandate.
Petitioners do not justify their request that the Court recall its mandate. This
power should be exercised sparingly and only in extraordinary circumstances. See
Calderon v. Thompson, 523 U.S. 538, 550 (1998); M2 Software Inc. v. Madacy Entm’t, 463
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F.3d 870 (9th Cir. 2006) (Beezer, specially concurring) (the power of recall “is one of
last resort, to be held in reserve against grave, unforeseen contingencies”). Petitioners
contend that recall is warranted because the Court actually intended to prohibit only
certain uses of the products. Petitioners therefore ask the Court to “instruct EPA that
the only uses vacated were the new uses approved conditionally in the 2018 decision” and
“clarif[y]” that the Court’s vacatur order “prohibits the OTT uses on cotton and
soybean from continuing this summer.” Pet’rs Mot. at 19-20 (emphasis in original). As
explained below, however, the vacatur order was clear. Recalling the mandate is not
appropriate merely because Petitioners wish the Court had ordered different relief,
reached additional issues, or want to challenge a subsequent agency action.
The Court’s vacatur order was clear and definitive and should not
be expanded or revised.
Petitioners contend that the Court must clarify its order to effectuate its
intentions. Pet’rs Mot. at 7, 19-20. But this is not a case where the Court’s order
requires clarification. See Aerojet-General Corp. v. Am. Arbitration Ass’n, 478 F.2d 248,
254 (9th Cir. 1973). The Court held that the registrations were not supported by
substantial evidence and thus “vacate[d] the registrations.” Dkt. 125 at 55, 56. The
Court’s ordering paragraph stated clearly: “Registrations VACATED.” Id. at 56. This
granted precisely the relief that FIFRA contemplates and that Petitioners requested:
that “the Court vacate the registration.” Pet’rs Br. at 74 (Dkt. 35).

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Petitioners ask that the Court clarify that its order prohibits any further use of
these products. Pet’rs Mot. at 19-20. But Petitioners already requested such relief in
their supplemental letter brief. Dkt. 115-1 at 10. In response, EPA explained in its
proposed response to Petitioners’ supplemental brief (Dkt. 121 at 5-8) that FIFRA
does not bar the use of existing stocks of unregistered pesticides and thus vacating the
registrations does not have the effect of prohibiting use of the pesticides.4 The Court
did not grant Petitioners’ request: the vacatur order does not prohibit “use.” Dkt. 125
at 55-56. Therefore, recall is not warranted. See Calderon, 523 U.S. at 551 (recall not
warranted to revive a denied en banc petition for review of a determination that “had
been given full consideration on the merits by a panel”).
Petitioners’ desired “clarification” goes beyond the relief
authorized by FIFRA and is contrary to basic principles of
administrative law.
The Court should (again) decline Petitioners’ request to prohibit use of existing
stocks of the dicamba products because such relief goes beyond what FIFRA
authorizes and would be inconsistent with basic administrative law principles. 7 U.S.C.
§ 136n(b) (authorizing reviewing court to “set aside the order complained of in whole
or in part”). It is well settled that “the function of the reviewing court ends when an
error of law is laid bare.” Fed. Power Comm’n v. Idaho Power Co., 344 U.S. 17, 20 (1952);

The Court did not grant EPA’s motion for leave to file that response because
it was unnecessary in light of the Court’s vacatur order. Dkt. 125 at 56.
10
4

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see Cal. Wilderness Coal. v. Dep’t of Energy, 631 F.3d 1072, 1095 (9th Cir. 2011) (“When a
court determines that an agency’s action failed to follow Congress’s clear mandate the
appropriate remedy is to vacate that action.”).
Relatedly, the Supreme Court has found courts cannot restrict the options
available to an agency following judicial review. See Idaho Power Co., 344 U.S. at 20
(finding the D.C. Circuit erred in modifying an agency order in response to a motion
to “clarif[y]” its judgment); FCC v. Pottsville Broad. Co., 309 U.S. 134 (1940) (holding
the court of appeals lacked authority to issue a writ of mandamus to control
proceedings on remand after the court identified a legal error in the agency’s original
decision). Indeed, even where a court has found a statutory violation, it cannot
prevent an agency from taking subsequent action within its statutory authority. See
Monsanto Co. v. Geertson Seed Farms, 130 S. Ct. 2743, 2753-54, 2758 (2010).
The action under review here was EPA’s registration of pesticide products,
granting a license to sell and distribute the products for particular uses. FIFRA
prohibits the distribution or sale of unregistered pesticide products. 7 U.S.C. § 136a(a). But
it does not directly prohibit the use of that product. Id. Similarly, while FIFRA makes
distribution and sale of an unregistered pesticide an unlawful act, id. § 136j(a)(1)(A), it
only makes use of an unregistered pesticide unlawful in certain circumstances, such as

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in a manner inconsistent with its labeling or if it is in violation of a cancellation order,
see id. § 136j(a)(2)(G), (K).5
Thus, setting aside a pesticide registration sets aside the legal license to sell or
distribute that product. Id. § 136a(a). And because FIFRA does not directly regulate
use of unregistered pesticides, setting aside that registration does not, of its own force,
prohibit use.
The Court recognized this in Pollinator Stewardship Council, 806 F.3d 520 (opinion
amended on rehearing). There, this Court granted EPA’s Petition for Panel Rehearing,
which requested that the Court amend its opinion to remove references implying that
7 U.S.C. § 136a regulated the use of unregistered pesticide products. Id. at 522; see EPA
Petition for Panel Rehearing, Pollinator Stewardship Council v. EPA, Case No. 13-72346,
October 26, 2015 (Dkt. 60-1).
That vacatur does not render use of existing stocks unlawful is true even if the
Court embraces Petitioners’ argument that this vacatur order did or should only set
aside the registration for over-the-top use. See Pet’rs Mot. at 17-19. For one, there is
no separate or severable “registration” for over-the-top uses of the three products at
issue here; the previous registration expired and has no legal effect. The vacated
registrations were the sole legal licenses to sell and distribute Xtendimax, Engenia, and

The other circumstances where use of unregistered pesticides would be
unlawful are subject to certain rules (7 U.S.C. § 136j(a)(2)(S)), orders (7 U.S.C.
§ 136j(a)(2)(I)), and experimental use permits (7 U.S.C. § 136j(a)(2)(H)).
12
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FeXapan for all uses. See, e.g., ER0026; see also Cancellation Order at 6 (noting the
cancelled registrations included “many uses other than post-emergent use on
dicamba-resistant soybeans and cotton”). What’s more, even if a partial vacatur of
only the over-the-top uses would make them unregistered uses, it would not make them
unlawful uses, for the reasons explained above.
To the extent Petitioners’ are requesting an order preventing EPA from issuing
a cancellation order addressing existing stocks would reach beyond the action
challenged in this petition and the relief authorized by FIFRA, 7 U.S.C. § 136n(b).
The Court should not—and cannot—limit EPA’s discretion to take future actions
consistent with the Court’s vacatur. Accordingly, it should be denied. Greater Bos.
Television Corp. v. FCC, 463 F.2d 268, 281 (D.C. Cir. 1971) (a court’s mandate “must
preserve and respect the distinctive administrative role of the agency and not
encroach on its permissible zone of discretion”).
The Court need not and should not recall the mandate to rule on
the unaddressed ESA issues.
There is also no basis to recall the mandate to reach the ESA claims that the
Court did not address in its opinion. See Pet’rs Mot. at 23-26. The Court’s finding that
the registrations were not supported by substantial evidence was sufficient to afford
Petitioners all the relief they requested: vacatur. There is no need for the Court to
address issues not necessary to dispose of the petition. Petitioners’ desire for a
broader or different holding, moreover, is not one of the “exceptional circumstances”
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warranting recalling the mandate. To the extent Petitioners believe an opinion
addressing their ESA arguments would afford them different relief, they can request
panel rehearing. Petitioners’ emergency request to recall the mandate for this purpose
should be denied.
EPA acted consistent with and did not violate the Court’s Order.
EPA’s Cancellation Order does not violate the Court’s vacatur order. The
Cancellation Order is a reasonable exercise of EPA’s statutory authority to
responsibly wind down use of existing stocks of products whose registrations have
been cancelled or, in this case, terminated by the Court. EPA has not restored the
registrations for these products, and the Cancellation Order does not have that effect.
Further, the Court’s vacatur order did not enjoin or limit EPA’s authority to take
future administrative actions related to existing stocks whose registrations were
vacated. The Court should reject Petitioners request to “enforce” its vacatur by
declaring the Cancellation Order unlawful or finding EPA in contempt.
The Cancellation Order did not violate “a specific and definite
court order” and thus cannot give rise to contempt sanctions.
EPA did not violate a specific and definite order; no contempt sanction is
warranted. The power to hold a party in civil contempt to enforce compliance with a
court’s order is a potent weapon, that, “[b]ecause of [its] very potency, . . . must be
exercised with restraint and discretion.” Chambers v. NASCO, Inc., 501 U.S. 32, 44
(1991); see Int’l Union, United Mine Workers of Am. v. Bagwell, 512 U.S. 821, 831-32
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(1994). Accordingly, a civil contempt sanction may be founded only on clear and
convincing evidence that the contemnors violated a definite and specific court order.
Ahearn v. Int’l Longshore & Warehouse Union, 721 F.3d 1122, 1129 (9th Cir. 2013). This
Court has consistently held that civil contempt is a “severe remedy” requiring that
“‘those enjoined receive explicit notice’ of ‘what conduct is outlawed before being
held in civil contempt.’” Taggart v. Lorenzen, 139 S. Ct. 1795, 1802 (2019); see also Gates
v. Shinn, 98 F.3d 463, 472 (9th Cir. 1996) (“Civil contempt is appropriate only when a
party fails to comply with a court order that is both specific and definite.”).
Petitioners’ motion to hold EPA and Administrator Wheeler in contempt does
not approach this stringent standard. The Court’s vacatur order did not “specific[ally]
or definit[ely]” enjoin EPA from issuing a cancellation order addressing existing
stocks, see Gates, 98 F.3d at 472; it simply vacated the registrations, terminating the
licenses to sell and distribute the dicamba products.
Issuing the Cancellation Order was therefore not inconsistent with any
injunction or other order, let alone a “specific and definite” one. Id. Indeed, it is a far
cry even from other orders that this Court has found were not enough to give rise to
contempt sanctions. See id. at 465-66, 72 (holding consent decree requiring prison
officials to provide an “appropriate level” of psychiatric care for prisoners “does not
command any conduct with specificity” and hence cannot be the basis of a contempt
order); Reno Air Racing Ass’n, Inc. v. McCord, 452 F.3d 1126, 1133-34 (9th Cir. 2006)
(holding temporary restraining order’s description of the trademark and “confusingly
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similar variations thereof” lacked “sufficient specificity” to give rise to contempt
sanctions); cf. Fed. R. Civ. P. 65(d) (an injunction must be “specific in terms” and
describe “in reasonable detail” the acts restrained).
Relying on an alternative, strained interpretation of the Court’s order,
Petitioners assert—incorrectly—that the Court did not vacate the registrations, but
rather the authorization to use the dicamba products over-the-top. See, e.g., Pet’rs Mot.
at 17-18. They contend that, “[a]fter vacatur of the OTT new use approvals, the
products themselves did not become unregistered. They are also registered for other
different uses on different crops, uses with their own specific conditions.” Id. at 17
(emphasis omitted). The existing stocks of Xtendimax, Engenia, and FeXapan are
therefore not unregistered pesticides, the argument goes, they are just differently registered
pesticides. Petitioners are wrong.
As already discussed, there is no separate or severable “registration” for overthe-top uses alone. See supra Part I.B. Moreover, the Court did not—and cannot—
engage in rewriting the agency actions under review. Id. The Court’s order plainly
vacates the registrations, Dkt. 125 at 56 (“Registrations VACATED.”); it does not
distinguish among specific uses of dicamba or otherwise address conditions of use.
While Petitioners may have objected to the registrations because of the over-the-top
uses, they never limited their request for relief in that way, nor did the Court so limit
its order. And even had the Court granted a partial vacatur, it would not enjoin EPA’s
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authority to issue an order governing the disposition of existing stocks that would
then bear labeling for an unauthorized use. See supra Part I.B.
In any event, Petitioners’ argument that the vacatur order bars the over-the-top
uses but not dissolve the registrations is anything but obvious. Petitioners have to turn
an unambiguous vacatur into an ambiguous partial-vacatur-and-injunction-against-use
to even approach an argument that the order prohibited EPA’s reasonable
Cancellation Order. A simple vacatur does not create any “specific and definite”
injunction against EPA’s future administrative action; rather, it results in setting aside
and invalidating the action. See “Vacatur,” Black’s Law Dictionary (“The act of
annulling or setting aside.”). Indeed, Petitioners’ request that the Court recall the
mandate to “clarify” that the vacatur would not allow action like the Cancellation
Order merely underscores that there was no clear prohibition against EPA’s action.
Additionally, it is insufficient for Petitioners to argue that the Cancellation
Order is inconsistent with the Court’s reasoning in support of its vacatur order. The
Supreme Court rejected that premise in International Longshoremen’s Association v.
Philadelphia Marine Trade Association, 389 U.S. 64 (1967), which reversed a civil
contempt judgment arising out of labor strikes. The Supreme Court explained that
because the lower court’s order referred to an arbitrator’s award that contained
conclusions of law but not “an operative command capable of ‘enforcement,’” the
order was impermissibly vague, and “with it must fall the [lower court’s] decision
holding the union in contempt.” Id. at 73-74, 76.
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Moreover, Petitioners improperly urge the court to use contempt not to
enforce compliance with a specific and definite court order, but to constrain EPA’s
lawful discretion to take a separate final agency action in light of that order. The
Court’s order did not clearly or specifically restrict EPA’s ability to address existing
stocks that became unregistered upon vacatur, just as the Agency had done in past
cases where pesticide registrations were vacated. Without a specific order enjoining
EPA’s conduct, the Court must reject Petitioners’ contempt motion. Neither EPA
nor Administrator Wheeler have violated “a specific and definite court order,” and
should not be found in contempt.
The Cancellation Order was consistent with the vacatur order.
EPA’s Cancellation Order does not violate the Court’s vacatur order. The
vacatur rescinded the dicamba registrations; the Cancellation Order does not change
that. Rather, the Cancellation Order addresses sale, distribution, and use of existing
stocks of the now-unregistered products that had been lawfully sold and distributed
before vacatur. As discussed above, that action was not inconsistent with the vacatur
order. See supra Part II.A. The Court did not and could not restrain EPA from taking
this separate, subsequent agency action to address the disposition of existing stocks in
light of the registrations’ vacatur. See supra Part I.B. At the very least EPA’s action
represents substantial compliance with the Court’s order.
EPA’s response in issuing the Cancellation Order is a reasonable exercise of its
FIFRA authority to address the disposition of existing stocks that had been lawfully
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sold and distributed before the vacatur. When the Court’s vacatur became
immediately effective, approximately 4 million gallons of existing stocks were in the
channels of trade. Cancellation Order at 5. People in possession of those stocks had
no legal way to distribute them back to the registrants or for disposal. Id. at 2. And
EPA had no way to ensure that applicators would not use the pesticides in a manner
that would increase the chance of unreasonable, adverse effects, including to
endangered species, relative to the previously approved label restrictions. Id. at 2-3.
Recognizing this and the turmoil in the agricultural industry as growers heavily
invested in systems dependent on over-the-top dicamba weed control, and applying
the six factors of its Existing Stocks Policy Statement, 56 Fed. Reg. at 29,364, EPA
exercised its lawful authority to issue an order governing the safe disposition of
existing stocks. See Cancellation Order at 4-11.
This action did not violate the vacatur: it did not restore the registration; it
addresses only existing stocks left in a regulatory limbo. Petitioners argument to the
effect that there is not actually a regulatory limbo to address because FIFRA prohibits
use of unregistered pesticides is wrong. See, e.g., Pet’rs Mot. at 17, 20. For example,
Petitioners contend that FIFRA clearly prohibits the use of unregistered pesticides,
citing 7 U.S.C. § 136a(a). Id. at 16-17. But that provision states that “the Administrator
may by regulation limit the distribution, sale, or use . . . of a pesticide that is not
registered under this subchapter.” 7 U.S.C. § 136a(a) (emphasis added). Petitioners
identify no regulations prohibiting use of existing stocks. Petitioners also point to
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Section 136j(a)(2)(F). But that provision, too, only applies as to registered pesticides
classified for restricted use. In any event, Petitioners’ claims about the scope and
effect of the vacatur are unfounded. See supra Part I.B, II.A.
Petitioners are also incorrect in that the Court’s recitation of a statement from
EPA’s 2018 Decision Document indicates the Cancellation Order is contrary to the
Court’s intent. At the end of its opinion, the Court quoted EPA’s statement that
“using registered dicamba products on dicamba-tolerant [cotton or soybean crops]
that are not registered specifically for post-emergence use . . . is inconsistent with the
pesticide’s labeling and a violation of [FIFRA].” Dkt. 125 at 56. But that statement
refers to other registered dicamba products—older, more volatile formulations than
those at issue here—that are not registered for over-the-top use. Illegal over-the-top
use of those products had been a problem in the past and was suspected to be one
cause of off-target incidents in 2017 and 2018. EPA did not say that use of an
unregistered pesticide is a violation of FIFRA, and, in citing that statement, the Court
did not alter its holding or the remedy imposed.
The Court’s vacatur order rescinded the three dicamba registrations,
eliminating the legal license to sell or distribute the products, no more or less. It did
not preclude the issuance of a cancellation order. And it did not and cannot dictate
what measures EPA may take in exercising its statutory authority to address existing
stocks. The Court should deny Petitioners motion.
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Petitioners’ motion is not the proper vehicle—and this court is not the
proper tribunal—to review the Cancellation Order.
At bottom, Petitioners’ motion seeks to have the Court declare EPA’s
Cancellation Order unlawful. That is improper. EPA’s cancellation order is a separate
administrative order, distinct from the now-vacated registration and reviewable on its
own merits in an appropriate district court. See 7 U.S.C. § 136n(a); see also Greater Bos.
Television, 463 F.2d at 287-88 & n.38 (holding that, unless a court retains jurisdiction
over agency action following remand, any subsequent agency order must be subject to
its own independent appellate process); Geertson Seed Farms, 561 U.S. at 162 (holding
an agency order following remand is a new action that must be challenged in a new
suit). The Court should not allow Petitioners to use a motion to “enforce” the
vacatur, through recalling the mandate, contempt, or other means, as a back door to
obtain judicial review of a new, separate agency action.
That is particularly true here, where district court, not the court of appeals, has
jurisdiction to review the Cancellation Order. Because the Cancellation Order was not
issued following a public hearing, FIFRA provides that judicial review is available only
in an appropriate district court. 7 U.S.C. § 136n(a); see Cancellation Order at 11.
CONCLUSION
For the foregoing reasons, the Court should deny Petitioners’ motion.

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Respectfully submitted,
/s/ Sarah A. Buckley
SARAH A. BUCKLEY
Trial Attorney
U.S. Department of Justice
Env’t & Natural Resources Div.
Environmental Defense Section
P.O. Box 7611
Washington, D.C. 20044
(202) 616-7554

Of counsel:
Scott Garrison
Michele Knorr
U.S. Environmental Protection Agency
Office of General Counsel
Pesticides & Toxics Substances Law Office
1200 Pennsylvania Avenue, NW
Washington, D.C. 20460
Dated:

J. BRETT GROSKO
Senior Trial Attorney
U.S. Department of Justice
Env’t & Natural Resources Div.
Wildlife &Marine Resources Section
P.O. Box 7611
Washington, D.C. 20044
(202) 305-0342
Counsel for Respondents

June 16, 2020

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CERTIFICATE OF COMPLIANCE
I hereby certify that this brief complies with the requirements of Fed. R. App.
P. 32(a)(5) and (6) because it has been prepared in 14-point Garamond font, a
proportionally spaced font.
I further certify that this brief complies with Rule 27(d)(2) of the Federal Rules
of Appellate Procedure, because it contains 5195 words, excluding the parts of the
brief exempted under Rule 32(a)(7)(B)(iii), according to the count of Microsoft Word.

/s/ Sarah A. Buckley
SARAH A. BUCKLEY

 Case: 19-70115, 06/16/2020, ID: 11723889, DktEntry: 144, Page 29 of 29

CERTIFICATE OF SERVICE
I hereby certify that on June 16, 2020, I electronically filed the foregoing
document with the United States Court of Appeals for the Ninth Circuit by using the
CM/ECF system. I certify that all case participants are registered for the Appellate
CM/ECF System and that they will be served by the CM/ECF system.

/s/ Sarah A. Buckley
SARAH A. BUCKLEY