Petition — Selco Supply Co. v. United States Environmental Protection Agency

Office - Supreme Court, U.S

80-1245 FILED

JAN 19 1981

No. 80-

IO STEVAS,

CLERK

IN THE

Supreme Court of the United States

OctToBEeR TERM, 1980

SeLco SuPPLY COMPANY,

Petitioner,

Y.

Unirep States ENVIRONMENTAL PROTECTION AGENCY,

Respondent.

PETITION FOR A WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS

FOR THE TENTH CIRCUIT

Stuart Puiuire Ross

Hoaan & HARTSON

815 Connecticut Ave., N.W.

Washington, D.C. 20006

(202) 331-4500

JOHN P. DONLEY

419 18th Street

Greeley, CO 80631

(303) 356-4400

Attorneys for Petitioner

Press or Byron S. ADAMS PRINTING, INC., WASHINGTON, D. C.

1

QUESTIONS PRESENTED

\ Does the timely filing of an authorized motion

for reconsideration of orders of the United States

Environmental Protection Agency toll the time

for filing a notice of appeal in the court of

appeals ? |

2. When a petitioner has filed a notice of appeal

from an order of the United States Environmen-

tal Protection Agency, may the jurisdiction of the

court of appeals thereafter be defeated as pre-

maturely invoked if, without prejudice to any

party, the petitioner does not file a new notice

of appeal, or seek to amend the pending petition,

after a subsequent post-final-order ruling by the

Agency?

CORPORATE AFFILIATES

Seleo Supply Company has no parent, affiliate or

subsidiary corporation.

iii

TABLE OF CONTENTS

Page

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REASONS FOR GRANTING THE WRIT ..........0eeeeeees 4

SFO EP PEST ET CET Ter Teer ee 10

TABLE OF AUTHORITIES

CasEs:

American Farm Lines v. Black Ball Freight Service,

Pe.) rrr re rr t= 5, 10

B. J. McAdams, Inc. v. ICC, 551 F.2d 1112 (8th Cir.

NG Bi bag Wigs 04 ook 0:8 Ss 3-8 4 be RR 6

CAB vy. Delta Air Lines, 367 U.S. 316 (1961) ........ 6

Century Laminating, Ltd. v. Montgomery, 595 F.2d 563

(10th Cir.), cert. dismissed, 444 U.S. 987 (1979) .. 8

Dougherty v. Harper’s Magazine Co., 537 F.2d 758 (3d

Oe ab a de ans cee ed «es 40k hee eee 9

Eason v. Dickson, 390 F.2d 585 (9th Cir.), cert. denied,

i ee os veh kahés beaded nee eeeeeee 9

ECEE, Inc. v. FERC, 611 F.2d 554 (5th Cir. 1980) ... 6

Jackson v. Tennessee Valley Authority, 595 F.2d 1120

IE ans obo v0 kk vba w Ss cea ceRe Sy tee 9

Keith v. Newcourt, Inc., 530 F.2d 826 (8th Cir. 1976). 8

PREVIOUS PAGE WAS BLANK

i

iv

Table of Authorities Continued

Page

Montship Lines, Ltd. v. Federal Maritime Board, 295

ee, SE Ie MOE ov chavs baw cnceenseces 6

New York v. United States, 568 F.2d 887, 892-93 (2d

Ss EE oo he cre RNs wee bdo habeas ck ees Keo bad 6

Outland v. CAB, 284 F.2d 224 (D.C. Cir. 1960) 5, 6, 7, 8, 10

Pennsylvania v. ICC, 590 F.2d 1187 (D.C. Cir. 1978).. 6,7

Plummer v. United States, 580 F.2d 72 (3d Cir. 1978). 9

Richerson v. Jones, 551 F.2d 918 (3d Cir. 1977)...... 9

Samuel B. Franklin & Co. v. SEC, 290 F.2d 719 (9th

Se ETO iar rye atts a, Ge hada « ¢ 6

Song Jook Suh v. Rosenburg, 437 F.2d 1098 (9th Cir.

a) SBR RB SE ee err ae) ae cane? Sent oh eee a 9

Stokes v. Peyton’s Inc., 508 F.2d 1287 (5th Cir. 1975).. 9

Tiger International, Inc. v. CAB, 554 F.2d 926 (9th Cir.

DEE ir wa eras Varta das aka Oba oe ioe ea als 6

Yaretsky v. Blum, 592 F.2d 65 (2d Cir. 1979) ........ 9

FEDERAL STATUTES:

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MISCELLANEOUS:

C. Wright, A. Miller & E. Cooper, Federal Practice and

Procedure, Vol. 15, § 3915, at 599-600 (1976)..... 9

No. 80-

IN THE

Supreme Court of the United States

OctToBER TERM, 1980

—_——_——_—_—

SeLco SuppLY COMPANY,

Petitioner,

we

Unitrep States ENVIRONMENTAL PROTECTION AGENCY,

Respondent.

PETITION FOR A WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS

FOR THE TENTH CIRCUIT

——-—

Petitioner Seleo Supply Company respectfully prays

that a writ of certiorari issue to review the judgment

and opinion of the United States Court of Appeals for

the Tenth Circuit entered on October 20, 1980.

OPINION BELOW

The opinion of the court of appeals is reported at

632 F.2d 863 and appears herein as Appendix A.

JURISDICTION

The judgment of the Court of Appeals for the Tenth

Circuit was entered on October 20, 1980. The instant

2

petition for a writ of certiorari is being filed within

ninety days of that date. The jurisdiction of this Court

is invoked under 28 U.S.C. § 1254(1).

STATUTES AND REGULATIONS INVOLVED

The Federal Insecticide, Fungicide and Rodenticide

Act, 7 U.S.C. §1386n (1976) and 40 C.F.R. § 168.70

(1980) appear herein as Appendix B.

STATEMENT OF THE CASE

In May 1977 the Environmental Protection Agency

(‘‘EPA’’) brought a civil penalty assessment action

against the Seleo Supply Company (‘‘Seleo’’) for

alleged violations of the Federal Insecticide, Fungi-

cide, and Rodenticide Act (‘‘FIFRA’’), 7 U.S.C. § 136

et seq. (1976), which regulates the transportation, sale,

and use of pesticides. EPA charged that in January

and February, 1975 Seleo violated an Agency order

suspending certain uses of products containing hep-

tachlor and chlordane.

An Administrative Law Judge heard the matter

on stipulated facts and issued an Initial Decision

against Seleo on September 8, 1978. On September 25,

1978 Seleo filed a timely motion to reopen the hear-

ing to take additional evidence, as authorized by EPA’s

Rules of Practice, 40 C.F.R. § 168.70(b) (1980). Seleo

stated in its motion that the suspension order at issue

had not been served on Selco but rather on a law firm

without authority to represent the company. Because

EPA’s Rules of Practice specifically authorized con-

tinued agency review of Selco’s claim, the company

believed that this motion tolled the time for filing an

administrative appeal of the Initial Decision with the

Regional Administrator.

a

3

Six months later, on March 19, 1979, the Regional

Administrator signed a ruling denying Selco’s motion

to reopen the enforcement proceeding. Furthermore,

in the same document the Regional Administrator also

issued his final order in the matter, assessing 2 $15,000

civil penalty against Selco. This action effectively fore-

closed Seleo’s right to an administrative appeal as

contemplated by EPa’s Rules. See 40 C.F.R. § 168.51

(a) (1980). The Regional Administrator’s opinion was

docketed by the Regional Hearing Clerk on March 22,

1979. The Hearing Clerk served the parties by mail

sent out on March 26, 1979. Seleo received the order

on March 27, 1979.

In an attempt to rectify within the agency process

the improper denial of Selco’s right to appeal the

Initial Decision, Selco filed a motion for reconsidera-

tion of the Final Order on April 4, 1979. Such a

motion is expressly permitted by the EPA Rules of

Practice. See 40 C.F.R. §168.70(c) (1980). Once

again, because the Regional Administrator’s order

could not be final until he considered Selco’s motion

for reconsideration, Seleo believed that its motion

tolled the time for filing a notice of appeal in the

court of appeals.

Nevertheless, in view of the Regional Administra-

tor’s prior actions, Seleo filed a notice of appeal in

the Tenth Circuit Court of Appeals on May 24, 1979,

pursuant to 7 U.S.C. § 136n(b). This appeal was filed

within the sixty-day period from the date the order was

available to the public, allowing three days for service

by mail. See 40 C.F.R. § 168.07(¢) (1980). On July

9, 1979, the Regional Administrator denied the motion

to reconsider his Final Order. Thereafter, Seleo did

not file a new notice of appeal or seek to amend the

pending petition.

4

By decision dated October 20, 1980, the Tenth Cir-

cuit Court of Appeals dismissed the Selco petition for

review. The majority ruled that, in the absence of a

specific statutory provision to the contrary, a motion

for reconsideration does not toll the limitation period

within which a notice of appeal must be filed. (App.

A, pp. 2a-3a). The court of appeals also stated that

even if tolling were permitted, Seleo’s May 24, 1979

petition would be premature. (Jd. at p. 4a)

REASONS FOR GRANTING THE WRIT

I. This case presents an important question concern-

ing the procedural rights of interested parties to ju-

dicial review of actions taken by the Environmental

Protection Agency. It also involves significant ques-

tions of judicial economy and efficiency at a time when

the resources of the federal courts are taxed to the

limit. In their decision a majority of the Tenth Cir-

cuit departed from established principles of federal

administrative law and held that the timely filing of

a motion: for reconsideration of a final EPA order

does not toll the sixty-day period provided for seeking

review of that order in the court of appeals. (Jd. at

p. 3a). The court below dismissed the contrary deci-

sions of this Court and the other circuits, stating that

Congress intended a more expedited review of orders

under environmental protection statutes than under

other federal laws. (Id. at pp. 3a-4a). The majority con-

cluded that, in light of that policy, the time for seeking

judicial review of EPA orders is tolled by a motion

for reconsideration only when the applicable statute

expressly so provides. Because FIFRA is silent on

the question, the court held that Selco’s motion was

4)

irrelevant to the limitation period, and hence that

Seleo’s May 24, 1979 notice of appeal was filed out of

time. (/d.).

The Tenth Circuit’s decision was erroneous as a mat-

ter of fact because, as noted above, the petition was

filed within the sixty-day appeal period. See supra at

3. In addition, the decision of the majority below

was erroneous as a matter of law. In the leading case

of Outland v. CAB, 284 F.2d 224 (D.C. Cir. 1960)

(Burger, J.), the District of Columbia Circuit ad-

dressed the identical question of whether a petition

for rehearing changed the time from which judicial

review must be sought. There, as here, the applicable

statute contained a sixty-day limitation period but was

silent with respect to the effect of motions for recon-

sideration. See 49 U.S.C. § 1486(a) (1976). The court

in Outland held that ‘‘when a motion for rehearing

is made, the time for filing a petition for judicial re-

view does not begin to run until the motion for re-

hearing is acted upon... .’’ Jd. at 228. The court noted

that this rule was supported by important considera-

tions of efficiency and judicial economy. A request for

rehearing by definition may lead to modification or

reversal of the order complained of so as to make ju-

dicial review unnecessary. The court found that it

would be wasteful to require parties seeking adminis-

trative reconsideration also to file ‘‘protective’’ peti-

tions for review that may become moot or irrelevant

once the final agency decision is made. Id. at 227-28.

The Outland decision has been approved specifically

by this Court. In American Farm Lines Vv. Black Ball

Freight Service, 397 U.S. 532 (1970), for example, the

Court stated that ‘‘fu]nless Congress provides other-

wise, ‘{w]here a motion for rehearing is in fact filed

6

there is no final action until the rehearing is denied.’ ”’

Id. at 541 (eiting Outland); see CAB v. Delta Air

Lines, 367 U.S. 316, 326 (1961). Similarly, the Out-

land rule has been followed by every circuit other

than the Tenth that has had occasion to consider the

question, see, e.g., ECEE, Inc. v. FERC, 611 F.2d 554,

557 (5th Cir. 1980); New York v. United States, 568

F.2d 887, 892-93 (2d Cir. 1977); Tiger International,

Inc. v. CAB, 554 F.2d 926, 931 n.10 (9th Cir. 1977);

B. J. McAdams, Ine. v. ICC, 551 F.2d 1112, 1115 (8th

Cir. 1977) ; Samuel B. Franklin & Co. v. SEC, 290 F.2d

719, 724-25 (9th Cir. 1961), and has been reaffirmed

by the District of Columbia Circuit itself, see, e.g.,

Pennsylvania v. ICC, 590 F.2d 1187, 1193-96 (D.C.

Cir. 1978) ; Montship Lines, Ltd. v. Federal Maritime

Board, 295 F.2d 147, 151 (D.C. Cir. 1961). .

The majority below did not make any rational at-

tempt to explain why the general rule in favor of toll-

ing should not be applied in this case. It merely stated

that decisions under other statutes ‘‘are not perti-

nent,’’ and that “[p]rompt resolution of EPA orders

under FIFRA, like orders made under other environ-

mental protection statutes, should be made promptly.”

(App. A, pp. 3a-4a). However, as Judge Seymour

stated in his concurring opinion rejecting the major-

ity’s argument on this point, ‘‘it is not self-evident that

there is a lesser need for a quick determination of is-

sues before’’ other federal agencies than before EPA.

(Id. at p. 7a). The majority cited nothing in either

FIFRA or its legislative history to justify a depar-

ture from established administrative procedure in this

case.”

* In any event, civil penalty assessment cases are distinguishable

from other environmental protection proceedings, such as those

7

The decision below sets a serious and detrimental

precedent, not merely for EPA enforcement actions

and environmental protection proceedings in general,

but also for judicial review of all federal agency

orders. If the majority’s holding is permitted to stand,

parties can be expected to revive the practice of filing

“protective” notices of appeal whenever a petition for

reconsideration is pending. They will do so because

they will be unable to predict whether the court of

appeals subsequently will find that an underlying

statute requires ‘‘prompt resolution”’ of agency orders

and hence that the sixty-day period for seeking ju-

dicial review was not tolled. Such ‘‘protective’’ peti-

tions would be no less wasteful and no less inefficient

today than they were at the time of the Outland deci-

sion. Seleo respectfully submits that the Court should

take this opportunity to revise a ruling that undercuts

the administrative review process as designed by Con-

gress and further burdens the courts of appeal and this

Court. As one court correctly has noted, ‘*Ta]dminis-

trative reconsideration is a more expeditious and ef-

ficient means of achieving an adjustment of agency

policy than is resort to the federal courts... .” Penn-

sylvania v. ICC, 590 F.2d 1187, 1194 (D.C. Cir. 1978).

II. This case raises a second significant procedural

issue with respect to judicial review of administrative

orders. Assuming that the Tenth Circuit erred in de-

involving rulemaking, registration, suspension, or cancellation. Civil

penalty cases generally are based on violations alleged to have taken

place long before EPA files its complaint. As a result, urgency in

correcting a potentially harmful condition is not a consideration.

At minimum, then, the court below was not justified in finding that

environmental cases per se require overriding established due

process standards that protect individual respondents from arbi-

trary administrative action.

8

parting from the general rule of Outland, it could be

argued that the notice of appeal filed by Selco on May

24, 1979 was premature insofar as the Regional Ad-

ministrator had not yet ruled on Seleo’s motion for

reconsideration. The question then is whether that

notice of appeal was nevertheless sufficient given the

Administrator’s subsequent srmimary denial of Selco’s

motion, or whether Selco should have undertaken the

technical formality of refiling its notice of appeal, or

filing an amendment to that notice.

The circuit courts of appeal have divided sharply

over the equities inherent in this question. Some, in-

cluding the Tenth Circuit below (App. A, p. 4a),

prefer a highly formalistic approach to the require-

ment of a notice of appeal. These courts have held

that under no circumstances may a premature notice

of appeal sustain jurisdiction. See Century Laminat-

ing, Ltd. v. Montgomery, 595 F.2d 563, 567-68 (10th

Cir.), cert. dismissed, 444 U.S. 987 (1979); Keith v.

Newcourt, Inc., 5380 F.2d 826 (8th Cir. 1976).

The majority of circuits, however, have preferred a

narrow exception to the rule against premature peti-

tions for review. In the context of an administrative

review proceeding, this exception would apply only in

the limited situation in which a notice of appeal is

filed between the pronouncement of an agency order

and entry of that order, or while a motion to amend

or reconsider a final order is pending. These courts

have argued that such a notice of appeal should be

treated as valid, even though technically premature,

provided two conditions are met: 1) the order entered

after the filing of the notice of appeal must not change

the substance of the order against which the appeal

9

was directed (for example, a motion to amend must

have been denied); and 2) there must have been no

prejudice to other parties. See Jackson v. Tennessee

Valley Authority, 595 F.2d 1120, 1121 (6th Cir. 1979) ;

Yaretsky v. Blum, 592 F.2d 65, 66-67 (2d Cir. 1979) ;

Plummer v. United States, 580 F.2d 72, 74 (3d Cir.

1978); Richerson v. Jones, 551 F.2d 918, 922-23 (3d

Cir. 1977); Dougherty v. Harper’s Magazine Co., 537

F.2d 758, 762 (3d Cir. 1976); Stokes v. Peyton’s Inc.,

508 F.2d 1287, 1288 (5th Cir. 1975); Song Jook Suh

v. Rosenburg, 437 F.2d 1098, 1101 (9th Cir. 1971);

Eason v. Dickson, 390 F.2d 585, 588 (9th Cir.), cert.

denied, 392 U.S. 914 (1968). See also 15 C. Wright, A.

Miller, & E. Cooper, Federal Practice and Procedure

§ 3915, at 599-600 (1976).

Such an exception is based on principles of justice,

economy, and convenience. As Seleo argued below, no

useful purpose is served by requiring a party to go to

the trouble and expense of refiling essentially the

same notice of appeal from essentially the same order.

In the instant case, for example, the Regional Admin-

istrator’s denial of the motion for reconsideration left

standing the original Final Order from which Selco

had appealed. The Government had notice of the ob-

jections of Seleo to that Order. No prejudice would

have arisen had the Tenth Circuit acted on the basis

of the May 24, 1979 petition for review. Instead, how-

ever, Selco itself was prejudiced. Petitioner’s right to

an appeal, already infringed upon by the confusing

response to its motion for reconsideration as discussed

above, was denied altogether.

Seleo respectfully requests that the Court resolve

this ambiguity with respect to an essential element

10

of appellate jurisdiction. There is an important need

to settle this disagreement to avoid further prejudice

to parties that will find themselves facing Selco’s di-

lemma in the future. In doing so, the Court will clarify

the rights and duties of parties seeking judicial review

of orders of all administrative agencies.

CONCLUSION

Although this matter comes to the Court on a Peti-

tion for Writ of Certiorari, we believe the injustice

that has been done can be remedied without full

briefing and argument. It is respectfully submitted

that if the Court is of a similar view, the matter should

be remanded to the Tenth Circuit for action not in-

consistent with the decisions in American Farm Lines

v. Black Ball Freight Service, 397 U.S. 532 (1970)

and Outland v. CAB, 284 F.2d 224 (D.C. Cir. 1960).

For the reasons set forth herein, if the Court be-

lieves a remand is not appropriate we respectfully re-

quest that a writ of certiorari should issue to review the

judgment and opinion of the Tenth Circuit.

Respectfully submitted,

Stuart Puiuie Ross

Hocan & Hartson

815 Connecticut Ave., N.W.

Washington, D.C. 20006

(202) 331-4500

JOHN P. DonLEY

419 18th Street

Greeley, CO 80631

(303) 356-4400

Attorneys for Petitioner

Dated January 19, 1981

APPENDIX.

la

APPENDIX A

UNITED STATES COURT OF APPEALS

TENTH CIRCUIT

No. 79-1443

Setco Suppty Company,

Petitioner,

V.

Unrrep States ENVIRONMENTAL Protection AGENCY,

Respondent.

(Filed, United States Court of Appeals, Tenth Circuit,

Oct. 20, 1980, Howard K. Phillips, Clerk)

John P. Donley for Petitioner.

F. Patrick Barry (James W. Moorman, Assistant Attor-

ney General, Angus Macbeth, Deputy Assistant Attorney

General, Donald W. Stever, Jr. and Nancy Long, Attorneys,

Department of Justice and John C. Ulfelder and Ruthanne

Miller, Environmental Protection Agency, with him on the

briefs) for Respondent.

Before Sern, Breirenstern and Seymour, Circuit Judges.

BREITENSTEIN, Circuit Judge.

Petitioner, Seleo Supply Company, seeks review of orders

of the Environmental Protection Agency, EPA. We dismiss

because the petition was not filed within the time provided

by the statute and, hence, the court of appeals is without

jurisdiction.

The case arises under the Federal Insecticide, Fungicide

and Rodenticide Act, FIFRA, 7 U.S.C. § 136 et seq., which

2a

regulates the sale, transportation, and use of pesticides.

The Act requires registration of pesticides with the WPA.

In November, 1974, EPA gave notice of intent to cancel

registrations of pesticides containing heptachlor and chlor-

dane. Selco responded to a suspension notice. In December,

1975, EPA suspended some, but not all, use of products

containing heptachlor and chlordane, and a month later

clarified that order. In 1977 EPA began administrative

enforcement proceedings against Seleo by filing a com-

plaint charging violations of the suspension order. On

September 8, 1978, an Administrative Law Judge, ALJ,

rejected the Selco claim that it had not received notice of

the suspension order, found that Seleo had violated that

order, and assessed a $15,000 penalty against it. Seleo did

not appeal the decision of the ALJ but filed a motion to

reopen on the ground that the suspension order was not

served on Selco but on a law firm that was not authorized

to represent it. On March 19, 1979, the EPA Regional Ad-

ministrator denied the Seleo motion to reopen and assessed

a $15,000 civil penalty against Seleo. On April 4, 1979, Seleo

filed a motion for reconsideration of the March 19 order

and on May 24, 1979, filed the pending petition seeking

review of both the September 8, 1978, and March 19, 1979

EPA orders. EPA denied the motion to reconsider on July

9, 1979. Seleo did not petition for review of the July 9

order.

FIFRA provides, 7 U.S.C. §136n(b), that ‘* * * any

person * * * may obtain judicial review of [an EPA order]

by filing in the United States Court of Appeals * * * within

60 days after the entry of such order, a petition praying

that the order be set aside in whole or in part.’’

The grant of exclusive jurisdiction in the court of appeals

is intended to insure prompt resolution of the validity of

EPA orders. See Environmental Defense Fund, Inc. v.

Environmental Protection Agency, D.C.Cir., 485 F.2d 780,

783. The time limits for judicial review of actions taken

under environmental protection statutes provide a statute

3a

of limitations which bars late filings. See Sun Enterprises,

Ltd. v. Train, 2 Cir., 532 F.2d 280, 290-291 (Clean Water

Act) and Oljato Chapter of Navajo Tribe v. Train, D.C.

Cir., 515 F.2d 654, 661 (Clean Air Act).

Seleo’s May 24, 1979 petition sought review of the EPA

September 8, 1978 order which had been entered over 250

days before and of the March 19, 1979 order which had

been entered 66 days before. As to the last order Selco says

that the time should run from the date of service of the

order on it.

Selco points out that EPA regulation, 40 C.F.R. § 168.70

(c), permits a petition for reconsideration to be filed within

10 days after the date of service cf the final order and that

under Id. § 168.60(c)(1) judicial review of an order assess-

ing a civil penalty must be sought within 60 days after

service of the order on the respondent. The difficulty is

that the statute, 7 U.S.C. § 136n(b), requires that a petition

for judicial review be filed within 60 days after the entry

of the order, and contains no provision for tolling by a

motion for reconsideration. Federal courts may exercise

only that judicial power provided by the Constitution and

conferred by Congress. See Powell v. McCormack, 395 U.S.

486, 512-513, and Baker v. Carr, 369 U.S. 186, 198-199, For

a regulation to be valid it must be consistent with the

statute under which it is promulgated. United States v.

Lariono ff, 431 U.S. 864, 873.

We are convinced that the statute applies and precludes

review when the petition is not filed within the prescribed

60 day period from the entry of the order. Decisions under

other federal statutes permitting tolling of the limitation

period are not pertinent. See e.g., B. J. McAdams, Inc. v.

Interstate Commerce Commission, 8 Cir., 551 F.2d 1112,

1115 (Interstate Commerce Act) and Samuel B. Franklin

& Co. v. Securities and Exchange Commission, 9 Cir., 290

F.2d 719, 725 (Securities and Exchange Act). Prompt reso-

lution of EPA orders under FIFRA, like orders under

4a

other environmental protection statutes, should be made

promptly.

Even if tolling is permitted, the court of appeals is

without jurisdiction because then the final order would be

the July 9 order denying the motion for reconsideration

and Selco has presented no petition for the review of that

order. The May 24 petition for review was premature. We

have held that a premature notice of appeal is insufficient

to sustain jurisdiction of the court of appeals when no

notice of appeal has been filed for review of a final judg-

ment of a federal district court. Century Laminating, Ltd.

v. Montgomery, 10 Cir., 595 F.2d 563, 568-569. The same

principle applies to review of action of an administrative

agency. The present action is barred by the failure to

comply with the jurisdictional requirements.

Petition dismissed.

5a

Srymour, Circuit Judge, concurring:

I agree this action is barred by Selco’s failure to comply

with jurisdictional requirements. However, I take issue

with the majority’s conclusion that a petition for recon-

sideration does not alter the time for filing an appeal.

The majority’s interpretation rests upon the requirement

in 7 U.S.C. § 136n(b) that a notice of appeal be filed within

sixty days after entry of the EPA’s final order. The hold-

ing emphasizes that an EPA regulation rather than the lan-

guage of the statute itself provides for a reconsideration

petition.t These considerations are not controlling. In Out-

land v. CAB, 284 F.2d 224 (D.C. Cir. 1960), the issue was

whether a petition for rehearing before the Civil Aero-

nautics Board changed the time from which judicial review

must be sought. The statute there, 49 U.S.C. § 1486(a), con-

tained a sixty-day limitations period and had no provision

regarding motions for reconsideration. The court held that

‘‘when a motion for rehearing is made, the time for filing

a petition for judicial review does not begin to run until

the motion for rehearing is acted upon by the Board.” Id.

at 228. The Supreme Court cited this very language in

American Farm Lines v. Black Ball Freight Service, 397

U.S. 532, 541 (1970), where it held that an order by the

ICC was not so final as to bar the Commission’s later

reopening of the record. See also CAB v. Delta Air Lines,

367 U.S. 316, 326 (1961).

Significant policy reasons dictate that judicial review not

precede an administrative agency’s resolution of a motion

to reconsider its decision:

‘*[W)hen the party elects to seek a rehearing there is

always a possibility that the order complained of will

be modified in a way which renders judicial review

*The Administrator of the EPA clearly possessed the authority

to pass such regulation. See 7 U.S.C. § 136w(a) (1).

6a

unnecessary. Practical considerations, therefore, dic-

tate that when a petition for rehearing is filed, review

may properly be deferred until this has been acted

upon. The contrary result ... has caused parties to

file so called ‘protective’ petitions for judicial review

while petitions for rehearing before the Board were

pending. A whole train of unnecessary consequences

flowed from this: the Board and other parties may be

called upon to respond and oppose the motion for

review; when the Board acts, the petition for judicial

review must be amended to bring the petition up to

date.’’

Outland v. CAB, 284 F.2d at 227-28. ‘‘It is in the interest

of judicial economy and agency responsibility to allow [a]

Commission to reconsider its orders ..., rather than to

compel an applicant to invoke immediate judicial review.’’

B. J. McAdams, Inc. v. ICC, 551 F.2d 1112, 1115 (8th Cir.

1977).

In those instances where a statute or a regulation pro-

vides for agency reconsideration, courts have held that a

motion for reconsideration delays the time for seeking

judicial review until the agency has acted upon the motion.

See ECEE, Inc, v. FERC, 611 F.2d 554, 557 (5th Cir. 1980) ;

Pennsylvania v. ICC, 590 F.2d 1187, 1193 (D.C. Cir. 1978) ;

Tiger International, Inc. v. CAB, 554 F.2d 926, 931 n. 10

(9th Cir. 1977); Montship Lines, Ltd. v. Federal Maritime

Board, 295 F.2d 147 (D.C. Cir. 1961); Samuel B. Franklin

¢ Co. v. SEC, 290 F.2d 719, 725 (9th Cir. 1961). See also

New York v. United States, 568 F.2d 887, 892-93 (2d Cir.

1977); B. J. McAdams, Inc. v. ICC, 551 F.2d at 1114-15.

Cf. Laminators Safety Glass Association v. Consumer

Product Safety Commission, 578 F.2d 406, 410-11 (D.C.

Cir. 1978) (recognizing general rule but holding petition

for reconsideration does not delay time for appeal where

Ta

neither statute nor regulation provides for reconsidera-

tion).

Prompt resolution of environmental orders is an impor-

tant goal. It is not self-evident, however, that there is a

lesser need for a quick determination of issues before the

Federal Energy Regulatory Commission, the Interstate

Commerce Commission, the Civil Aeronautics Board, the

Federal Maritime Commission, and the Securities and Ex-

change Commission. The previously cited cases demon-

strate that motions for reconsideration submitted to those

agencies have been held to delay the running of the time

for judicial appeal until the motion has been decided. In

light of the strong policies and precedent favoring such

delay, I think it unadvisable for this court to create a

contrary rule for EPA orders decided under FIFRA.

The majority correctly states that if Seleo’s petition for

reconsideration delayed the start of the sixty-day filing

period, its notice of appeal was premature. It is for this

reason, rather than the lateness in filing, that I would hold

the present action untimely filed.

_—

9a

APPENDIX B

STATUTES AND REGULATIONS INVOLVED

7 U.S.C. §136n

§ 136n.

(a) District court review.—Except as is otherwise pro-

vided in this subchapter, Agency refusals to cancel or sus-

pend registrations or change classifications not following

a hearing and other final Agency actions not committed to

Agency discretion by law are judicially reviewable in the

district courts.

(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. A

copy of the petition shall be forthwith transmitted by the

clerk of the court to the Administrator or any officer desig-

nated by him for that purpose, and thereupon the Admin-

istrator shall file in the court the record of the proceedings

on which he based his order, as provided in section 2112

of Title 28. 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. The judgment

of the court affirming or setting aside, in whole or in part,

any order under this section shall be final, subject to review

by the Supreme Court of the United States upon certiorari

or certification as provided in section 1254 of Title 28. The

ecmmencement of proceedings under this section shall not,

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10a

unless specifically ordered by the court to the contrary,

operate as a stay of an order. The court shall advance on

the docket and expedite the disposition of all cases filed

therein pursuant to this section.

(c) Jurisdiction of district courts.—The district courts

of the United States are vested with jurisdiction specifically

to enforce and to prevent and restrain violations of, this

subchapter.

(d) Notice of judgments——The Administrator shall, by

publication in such manner as he may prescribe, give notice

of all judgments entered in actions instituted under the

authority of this subchapter.

40 C.F.R. § 168.70

§ 168.70 Motion to reopen hearings; to rehear or reargue pro-

ceedings; or to reconsider a final order.

(a) Filing and service, A motion to reopen a hearing to

take further evidence, to rehear or reargue any matter

related to such proceeding, or to reconsider any final order,

must be made by motion to the Regional Administrator, in

accordance with § 168.32(a), and filed with the Regional

Hearing Clerk. Every such motion must state the specific

grounds upon which relief is sought.

(b) Motion to reopen hearing. A motion to reopen a hear-

ing for the purpose of taking further evidence may be filed

at any time after the service of the initial decision of the

Administrative Law Judge and prior to the issuance of the

Regional Administrator’s final order. Each such motion

shall state briefly the nature and purpose of the evidence

to be adduced, shall show that such evidence is not cumula-

tive, and shall set forth a good reason why such evidence

was not adduced at a hearing.

(c) Motion to rehear, reargue, or reconsider. Motions to

rehear or reargue any matter related to a hearing or to

lla

reconsider the final order shall be filed within ten (10)

days after the date of service of the final order. Every

such motion must state specifically the matters claimed to

have been erroneously decided. The nature of any alleged

error must be briefly stated.