UNITED FARM WORKERS OF AMERICA, AFL-CIO; Sea Mar Community Health Center; Pineros y Campesinos Unidos Del Noroeste; Beyond Pesticides; Frente Indigena Oaxaqueno Binacional; Arnulfo Lopez, Plaintiffs-Appellants, v. ADMINISTRATOR, ENVIRONMENTAL PROTECTION AGENCY, Defendant-Appellee, and Gowan Company, Defendant-intervenor-Appellee, Bayer Cropscience LP; Makhteshim Agan of North America Inc, Intervenors-Appellees, 592 F.3d 1080

Opinion by Judge NOONAN; Dissent by Judge PREGERSON. NOONAN, Circuit Judge: A single issue is presented by this case: Was an appeal from a decision of the Environmental Protection Agency (the EPA) filed in the right court? In the background are the merits of the litigation centered on the continued use of the pesticide Azinphos-Methyl (AZM). Our task is not to decide the merits but to ascertain the appeals process established by Congress.

We hold that the choice of the district court by United Farm Workers of America and the other appellants (collectively Farm Workers) was mistaken and that the district court correctly dismissed their suit for lack of jurisdiction. PROCEEDINGS In 2001, EPA issued an Interim Registration Eligibility Decision governing the use of AZM under the Federal Insecticide, Fungicide, and Rodenticide Act (FIFRA), 7 U.S.C. § 136 et seq. The EPA’s decision responded to data furnished by the manufacturers of AZM and to written comments from growers, environmental groups, and the Farm Workers.

The EPA’s decision prohibited some uses of AZM and provided for phasing out other uses. In 2004, the Farm Workers challenged in federal district court the EPA’s Interim Decision. The case was provisionally settled by an agreement to stay proceedings until the agency completed its evaluation of the pesticide. In 2006, the EPA issued its final decision, again permitting for a period some uses of AZM. This decision, too, reflected extensive input from the manufacturers, the growers, the environmental groups, and the Farm Workers.

On April 27, 2007, the Farm Workers amended their 2004 complaint to challenge the final decision. The manufacturers intervened in the district court and moved to dismiss for lack of jurisdiction. The EPA did not join the motion. On May 10, 2008, the district court granted the motion. This appeal followed. ANALYSIS Jurisdiction in the district court.

Section 16(

a) of FIFRA provides jurisdiction in the district court in these terms: (

a) District court review. Except as otherwise provided in this subchapter, the refusal of the Administrator to cancel or suspend a registration or to change a classification not following a hearing and other final actions of the Administrator not committed to the discretion of the Administrator by law are judicially reviewed by the district courts of the United States. 7 U.S.C. § 136n(a). The cardinal condition for district court jurisdiction is that the Administrator of the EPA has made a decision “not following a hearing.” If a hearing has been held, no jurisdiction exists in the district court.

Was there a hearing? “Hearing” is a familiar term in the legal process. It identifies elements essential in any fair proceeding — notice be given of a decision to be made and presentation to the decisionmaker of the positions of those to be affected by the decision. By itself, the term does not connote more. “Hearing” is no doubt metaphorical, and a “hearing” includes proceedings in which there is no presentation of public argument. A judge who reads a brief “hears” the case. An administrator who reads comments “hears” what they say.

The plain meaning of “hearing” is satisfied by the process the EPA provided the manufacturers, the growers, the environmental groups, and the Farm Workers. To conclude that there was “no hearing” would fly in the face of the process. Jurisdiction, therefore, does not lie in the district court. Jurisdiction in the court of appeals.

Section 16(

b) of FIFRA reads: (

b) Review by court of appeals. In the case of actual controversy as to the validity of any order issued by the Administrator following a public hearing, any person who will be adversely affected by such order and who had been a party to the proceedings may obtain judicial review by filing in the United States court of appeals for the circuit wherein such person resides or has a place of business, within 60 days after the entry of such order, a petition praying that the order be set aside in whole or in part....

Upon the filing of such petition the court shall have exclusive jurisdiction to affirm or set aside the order complained of in whole or in part. The court shall consider all evidence of record. The order of the Administrator shall be sustained if it is supported by substantial evidence when considered on the record as a whole. 7 U.S.C. § 136n(b). Jurisdiction in the Court of Appeals is conferred after an order is issued by the EPA “following a public hearing.” Does the addition of “public” alter the meaning of “hearing”? It seems unlikely.

If it did, there would be actions by the Administrator following “a hearing” for which no review was provided. “Hearing” and “public hearing” should be read in tandem. Context does determine that “the hearing” contain written submissions; otherwise, judicial review would be awkward. On this construction, review of the contested decision in this case should have been sought in this court. Unfortunately for the appellants it is now too late to seek it here. Petitions for review must be filed 60 days after the decision. Id. The time is past. Case Law.

The bellwether case addressing appellate court jurisdiction over administrative law decisions has rejected the argument advanced by Farm Workers that the procedures set out in FIFRA under the heading “Public hearings and scientific review,” 7 U.S.C. § 136d(d), supply the meaning of “public hearing” in

Section 16(

b) of the act. Envtl. Def. Fund v. Costle, 631 F.2d 922, 927-32 (D.C.Cir.1980). Despite the fact that

Section 16(

b) refers to “party to the proceedings” and those “adversely affected,” the Costle court refused to restrict “public hearing” to a quasi-judicial mode. See id. at 927-28. The court noted that, with an adequate record made in the administrative proceedings, it was “a waste of time and effort” to channel review to a district court, from which appeal would then go to the circuit. Id. at 932. The kind of order appealable to the circuit court is disputed by Farm Workers.

Costle settled the question by holding that if an order followed a public hearing, it was “the type of order Congress intended appellate courts to review.” Id. at 926. In 1989, this court followed Costle, stating: We conclude that 136n(b)’s public hearing requirement is satisfied when the EPA conducts proceedings in which interested parties are afforded an opportunity to present their positions by written briefs and a sufficient record is produced to allow judicial review. Nw. Food Processors v. Reilly, 886 F.2d 1075, 1077 (9th Cir.1989) (citing Costle). Food Processors addressed a cancellation order by the EPA.

But

Section 16(

b) provides the same process for “any order,” so Food Processors is controlling precedent on a registration, too. In Food Processors we also cited with approval another D.C. Circuit case where there was a challenge to the EPA’s grant of an experimental use permit, which grant was held to be reviewable in a court of appeals. Humane Soc’y of the United States v. EPA 790 F.2d 106 (D.C.Cir.1986), cited in Food Processors, 886 F.2d at 1077-78. Notices and written comments were held to establish an adequate record for review. Id. at 110-112.

Unsurprisingly, governing precedent confirms our reading of the statutory language. We add as final confirmation the wise words of Justice Brennan resolving a vexing statutory puzzle: “Absent a firm indication that Congress intended to locate initial APA review of agency action in the district courts, we will not presume that Congress intended to depart from the sound policy of placing initial APA review in the courts of appeal.” Florida Power & Light Co. v. Lorion, 470 U.S. 729, 745, 105 S.Ct. 1598, 84 L.Ed.2d 643 (1985). Accordingly, the judgment of the district court is AFFIRMED. .

The district court did not gain jurisdiction over this case in 2004 when the government settled the case contingent on the EPA's final determination of termination of AZM. The parties cannot confer jurisdiction on the district court under

section 16(

a) if there was a hearing under FIFRA and the appeal of the EPA ruling should have been made to the Ninth Circuit, as discussed below. . This court decides literally thousands of cases each year where there is no oral argument; for example, Oral Screening Panel cases. Even when a case is before a merits panel, the panel often submits the case on the briefs without public oral presentation of arguments.