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

No. 80-1245

In the Supreme Court of the Hnited States

OCTOBER TERM, 1980

SELCO SuppLY COMPANY, PETITIONER

Vv.

UNITED STATES ENVIRONMENTAL PROTECTION AGENCY

ON PETITION FOR A WRIT OF CERTIORARI TO

THE UNITED STATES COURT OF APPEALS FOR

THE FOURTH CIRCUIT

BRIEF FOR THE RESPONDENT IN OPPOSITION

Wapbe H. McCree, Jr.

Solicitor General

ANGUS MACBETH

Acting Assistant Attorney General

F. PATRICK BARRY

Nancy L. LONG

Attorneys

Department of Justice

Washington, D.C. 20530

202) 633-2217

In the Supreme Court of the United States

OCTOBER TERM, 1980

No. 80-1245

SELCO SUPPLY COMPANY, PETITIONER

Vv.

UNITED STATES ENVIRONMENTAL PROTECTION AGENCY

ON PETITION FOR A WRIT OF CERTIORARI TO

THE UNITED STATES COURT OF APPEALS FOR

THE FOURTH CIRCUIT

BRIEF FOR THE RESPONDENT IN OPPOSITION

QUESTIONS PRESENTED

1. Whether the court of appeals properly dismissed a

petition for review filed 66 days after a final order was

entered by the Environmental Protection Agency, when

jurisdiction is limited by statute, 7 U.S.C. 136n(b), to those

petitions filed within 60 days of entry of a final order.

2. Whether a petition for judicial review of a final order

filed prior to disposition of a motion for reconsideration by

the agency confers jurisdiction on the court of appeals to

review the final order when the motion for reconsideration

is subsequently denied.

TABLE OF CONTENTS

Page

are Seer ee re errs Serre eee ee ee I

pe ee arene re er Teer eee I

Statutes and regulations ......cccsccccccccercesves I

Ee Ae eee Te Tee ee ee ETE Ee See eee l

| Serer Terr errs eee ree Se eee ee ee ee 5

POS Pere eT CU OEP Cee EERE TER ECETE TE 1]

| _ TABLE OF AUTHORITIES

Cases:

American Farm Lines v. Black Ball

Prete Serie’, Sei U.S. SFk cc ivivccivcss 8, 10

CAB vy. Delta Air Lines, Inc., 367 U.S. 316 ...... 8

Environmental Defense Fund, Inc. v.

Environmental Protection Agency,

ee ee ian sas 6k ae be ae 4 2

Environmental Defense Fund, Inc. v.

Environmental Protection Agency,

a eee 6

Environmental Defense Fund, Inc. v.

Environmental Protection Agency,

St wee Oe eee hg eka s 54S OR ee eee ee 2

Environmental Defense Fund, Inc. v.

Environmental Protection Agency,

ae ee ree 2

Mathews v. Eldridge, 424 U.S. 319 ............. 8

Oljato Chapter of Navajo Tribe v.

i yo vk nn 8 oe ee bod 0 Oe 6000 68s 6

Outland v. CAB, 284 F. 2d 224 .......... errr 8

Peabody Coal Co. v. Train, 518 F. 2d

Se ie ee ne Pre rere ee 6,7

III

PREVIOUS PAGE WAS BLANK

IV

Page

Cases—Continued:

Sun Enterprises, Ltd. v. Train,

332 F..20 280 icc wcsecctesenessueees One 6

Weinberger v. Salfi, 422 U.S. 749 we cece e ee ereeee 8

Statutes, rules and regulations:

Federal Insecticide, Fungicide and

Rodenticide Act (FIFRA), 7 U.S.C.

136 €f SOQ. sccvccescuncsensisussssyaneeeeee |

Section 3(c)(5)(C), 7 U.S.C.

1SéaleM SMC) 6 .ccccecsscadencdunenue eae I

Section 6, 7 U.S.C. 136d ....... eee eeees 2

Section 12(a)(2)(J), 7 U.S.C.

RUSTE) 74) 0) eee 2

Section 14, 7 U.S.C. 136] ....... cece eeeee 2

Section 14(a)(1), 7 U.S.C.

SC) ere I

Section 14(a)(3), 7 U.S.C.

SGMOMD) oo cc ncccccusessneeen ven 2

Section 16(b), 7 U.S.C.

keer err rr 243,87

33 U.S.C. 19D vicecckccccdecntenenneee eee 6

42 U.S.C. FOBT) occ c ck cc cewetcstnxsueeeeeee 6

40 C.F.R. (1979):

Part 168 osc Gikie we cctcclts eee ee ae 1,8

Section 168.464c) ..scccs00s00000he0us ee

Section 168.51 ....00s00se000ss0nen eee

Section 168.60(c)(1) ....cccccccccccceccces 7

Page

Statutes, rules and regulations—Continued:

EE PP nv o.ve seh serevde sie nawan woul I

Ee re reer es 3

SS rer rns eee 3,4

8 errr rr ore. = 4,9

RE «> a re ern res 8

Fed. R. App. P.:

Se ear oe |

Es os 5 6.0 0b 60004005 42 0ee ERO 7

I, cs eb-Uake ee ed ee ee Sk eb eke wee 1]

Miscellaneous:

45 Fed. Reg. 24363 (1980) ......... cece eee eee |

OPINION BELOW

The opinion of the court of appeals (Pet. App. A) is

reported at 632 F. 2d 863.

JURISDICTION

The judgment of the court of appeals was entered on

October 20, 1980. The petition for a writ of certiorari was

filed on January 19, 1981. The jurisdiction of this Court is

invoked under 28 U.S.C. 1254(1).

STATUTES AND REGULATIONS

Section 16(b) of the Federal Insecticide, Fungicide and

Rodenticide Act, 7 U.S.C. 136n(b), and 40 C.F.R. 168.70

(1979),' are set forth in Pet. App. B.

STATEMENT

1. This case arises under the Federal Insecticide, Fungi-

cide and Rodenticide Act (FIFRA), 7 U.S.C. 136 et seq., a

comprehensive regulatory statute governing the sale, use,

and distribution of pesticides. As a part of the regulatory

scheme established under the Act, the Administrator of the

Environmental Protection Agency (EPA) has the authority

to register a pesticide for use, sale, or distribution upon a

determination that the pesticide will “perform its intended

function without unreasonable adverse effects on the envi-

ronment.” 7 U.S.C. 136a(c)(5)(C). The Administrator may

cancel or suspend the registration of a pesticide upon a

finding that the pesticide in question no longer meets the

criteria for registration. 7 U.S.C. 136d. The registrant has a

'Petitioner cites to the 1980 edition of Title 40 of the Code of Federal

Regulations in referring to Part 168 of Title 40, which contained the

applicable procedures in effect when the instant dispute arose. Part 168

does not appear in the 1980 edition of Title 40, because it was revoked

on April 9, 1980, and replaced with consolidated rules governing the

assessment of civil penalties under a number of statutes administered by

the Environmental Protection Agency. 45 Fed. Reg. 24363 (1980). We

therefore will cite to the 1979 edition of Title 40 of the Code of Federal

Regulations.

2

continuing burden of demonstrating that its product is

entitled to registration. Environmental Defense Fund, Inc.

v. Environmental Protection Agency, 548 F. 2d 998, 1012-

1018 (D.C. Cir. 1976); Environmental Defense Fund, Inc. v.

Environmental Protection Agency, 510 F. 2d 1292, 1297

(D.C. Cir. 1975); Environmental Defense Fund, Inc. v.

Environmental Protection Agency, 465 F.2d 528, 532

(D.C. Cir. 1972).

Any person who violates an order for cancellation or

Suspension issued pursuant to 7 U.S.C. 136d is subject to

criminal or civil penalties. 7 U.S.C. 136j(a)(2)(J); 7 U.S.C.

136/. Civil penalties are assessed administratively by EPA,

following hearing, upon a finding that there has been a

violation of the order cancelling or suspending the registra-

tion of a product. 7 U.S.C. 136/(a)(1) and (3). An order of

the Administrator issued under FIFRA, including an order

assessing a civil penalty, is reviewable in the court of appeals

for the circuit wherein the person adversely affected by the

order resides or has a place of business. 7 U.S.C. 136n(b).

Review must be sought in the court of appeals “within 60

days after entry of such order.” /bid.

2. On December 24, 1975, after a full hearing at which

petitioner was represented by counsel, the Administrator of

EPA issued an order suspending registrations for some, but

not all, of the uses of the pesticides heptachlor and chlor-

dane. The Administrative Law Judge (ALJ) in the instant

case found that a copy of the Administrator’s suspension

decision and order was mailed to petitioner, one of the

registrants of these pesticides, but that petitioner had no

record of having received the decision and order.

Subsequently, after two inspections of petitioner’s pre-

mises, EPA determined that petitioner had sold certain

formulas of the pesticides heptachlor and chlordane that

had been banned by the Administrator’s December 24,

1975 order of suspension. On May 5, 1977, administrative

3

enforcement proceedings were initiated against petitioner

for these violations. A principal component of petitioner’s

defense was that it did not receive notice of the Administra-

tor’s suspension order.

On September 8, 1978, the ALJ issued his initial decision

finding petitioner in violation of the suspension order and

assessing a Civil penalty against petitioner in the amount of

$15,000. The ALJ found clear and convincing evidence that

petitioner was represented by counsel in the suspension

proceedings and concluded that counsel’s receipt of the

Administrator’s suspension order constituted sufficient

notice to petitioner. In any event, the ALJ concluded that

petitioner itself could be held to have received notice of the

suspension by virtue of a presumption that the notice

mailed directly to it was in fact received. Petitioner did not

file an administrative appeal from the decision of the ALJ,

as it was authorized by regulation to do. See 40 C.F.R.

168.51 (1979). Under 40 C.F.R. 168.46(c) (1979), an initial

decision of an ALJ that was not appealed to the Regional

Administrator became the “final order” of the Regional!

Administrator after the passage of 30 days.

On September 25, 1978, petitioner filed a motion to

reopen the preceedings before the ALJ, pursuant to 40

C.F.R. 168.70(b) (1979), for the purpose of taking further

evidence on the question whether it was in fact represented

by the counsel who appeared in the suspension proceedings.

On March 19, 1979, the Regional Administrator of EPA

denied petitioner’s motion to reopen,? concluding that the

evidence about petitioner's relationship with counsel who

appeared in the suspension proceedings should have been

presented to the ALJ who assessed the civil penalty for

"Under the regulations, a motion to reopen was to be directed to the

Regional Administrator, not the ALJ who first heard the case. 40

C.F.R. 168.70(a) (1979).

4

violating the suspension order and that the additional evi-

dence would, at all events, be cumulative. See 40 C.F.R.

168.70(b) (1979). On the same date, the Regional Adminis-

trator also entered a final order concurring in the ALJ’s

assessment of the civil penalty.

On April 6, 1979, petitioner filed a motion pursuant to 40

C.F.R. 168.70(c) (1979), requesting the Regional Adminis-

trator to reconsider his entry of the final order. In this

motion to reconsider, petitioner stated that it believed its

motion of September 25, 1978 to reopen the proceedings

before the ALJ tolled the time allowed under 40 C.F.R.

168.51 (1979) for filing a formal appeal to the Regional

Administrator from the ALJ’s decision. While the motion

to reconsider was pending before the Regional Administra-

tor, petitioner, on May 24, 1979, filed a petition in the

United States Court of Appeals for the Tenth Circuit pur-

suant to 7 U.S.C. 136n(b) seeking review of the ALJ’s

September 8, 1978 decision and the Regional Administra-

tor’s order of March 19, 1979. See Pet. App. 2a. Petitioner’s

motion to reconsider subsequently was denied by the

Regional Administrator on July 9, 1979. The Regional

Administrator observed in his July 9 decision that, under 40

C.F.R. 168.46(c) (1979), the initial decision of the ALJ

became final 30 days after it was issued, because petitioner

did not appeal from that decision and the Regional Admin-

istrator did not elect, sua sponte, to review it. In the

Regional Administrator’s view, the March 19, 1979, order

denying petitioner’s motion to reopen the hearing before

the ALJ merely “formalized” the order that had previously

become final when petitioner did not take an appeal from

the ALJ’s decision. The Regional Administrator therefore

denied petitioner’s April 6 motion and “affirmed” the final

order of March 19, 1979. Petitioner did not file a petition

for review in the court of appeals following the July 9, 1979

denial of its motion for reconsideration by EPA.

5

3. The court of appeals dismissed the petition for review,

concluding that the 60-day period within which a party may

file a petition for review in the court of appeals under 7

U.S.C. 136n(b) is a “statute of limitations which bars late

- filings” (Pet. App. 2a-3a). Because petitioner’s petition was

filed 250 days after entry of the ALJ’s decision of September

8, 1978, and 66 days after the Regional Administrator’s

order of March 19, 1979, the court of appeals held that it

was without jurisdiction to entertain the petition. Pet. App.

3a. In addition, the court held that, even if petitioner’s

motion to reconsider filed on April 6, 1979, had tolled the

running of the 60-day period, the petition for review filed in

the court of appeals on May 24, 1979 was “premature”

because EPA had not yet denied the motion to reconsider.

Accordingly, the court of appeals held that the petition

could not confer jurisdiction. Pet. App. 4a.

Judge Seymour concurred in the holding that the court

was without jurisdiction because the petition for review

filed in the court of appeals was premature, but she con-

cluded that the April 6, 1979 motion to reconsider filed with

EPA tolled the running of the 60-day period for seeking

judicial review (Pet. App. Sa-6a).

ARGUMENT

This case presents no issue warranting review by this

Court, particularly because the procedural regulations that

governed this case are no longer in effect. See note |, supra.

| Section 16(b) of the Federal Insecticide. Fungicide

and Rodenticide Act (FIFRA), 7 U.S.C. 136n(b), provides

in pertinent part:

* * *[A]ny person * * * may obtain judicial review [of

an order] by filing in the United States court of appeals

* * * within 60 days after entry of such order, a petition

praying that the order be set aside in whole or in part

* * *

6

Petitioner’s petition for review, filed in the court of appeals

on May 24, 1979, sought review of the ALJ's decision of

September 8, 1978, aud the Regional Administrator’s order

of March 19, 1979. The petition for review was filed more

than 250 days after entry of the former and 66 days after

entry of the latter. Thus, as to each, the petition for review

was filed beyond the period of 60 days from entry of the

order permitted under 7 U.S.C. 136n(b). Hence, the petition

failed to confer jurisdiction upon the court of appeals, and

the court of appeals properly dismissed the petition.

FIFRA is similar to other environmental protection sta-

tutes in providing a limited time within which review of

EPA actions may be sought in the court of appeals. Com-

pare 42 U.S.C. (Supp. II) 7607(b) (60-day period under the

Clean Air Act); 33 U.S.C. 1369 (90-day period under the

Clean Water Act). Congress’ purpose in providing a limited

time for invoking the exclusive jurisdiction of the courts of

appeals to review actions of EPA was to insure prompt

resolution of the validity of such actions and thereby to

effectuate the environmental purpose of the statutes. See

Peabody Coal Co. v. Train, 518 F. 2d 940, 942 (6th Cir.

1975); Environmental Defense Fund, Inc. v. Environmental

Protection Agency, 485 F. 2d 780, 783 (D.C. Cir. 1973). In

interpreting the Clean Air Act and Clean Water Act, the

courts uniformly have held that the time limit bars late

filings. Sun Enterprises Ltd. v. Train, 532 F. 2d 280, 290-

291 (2d Cir. 1977); Oljato Chapter of Navajo Tribe v. Train,

515 F. 2d 654, 661 (D.C. Cir. 1975); Peabody Coal Co. v.

Train, supra, 518 F. 2d at 942. The same rule should be

followed here.

2. Petitioner suggests (Pet. 3, 5), however, that the 60-

day period within which a petition for review must be filed

in the court of appeals should run either from the date of

service of the EPA order (March 26, 1979) or from the

date on which the order was docketed by the Regional

5

Hearing Clerk (March 22, 1979), allowing three additional

days for service of the order by mail. If either of these dates

were utilized, petitioner’s petition for review would have

been timely filed in the court of appeals, at least insofar as it

sought review of the March 19, 1979, order denying the

motion to reopen proceedings before the ALJ. However,

both of petitioner’s suggested approaches must be rejected

because each is flatly inconsistent with the explicit statutory

language in 7 U.S.C. 136n(b) that a petition for review must

be filed “within 60 days after the enrry of [the] order“

(emphasis added). Compare Fed. R. App. P. 4(a) (notice of

appeal in a civil case must be filed with the clerk of the

district court within 30 days of the date of the entry of the

judgment). The statute makes no reference to when the

order is served on the parties, nor does it allow for extension

of the 60-day period for an additional three days merely

because a copy of the order is sent to the parties by mail.

See also Peabody Coal Co. v. Train, supra, 518 F. 2d at 942.

3.a Petitioner argues, however, that its filing of a motion

for reconsideration on April 6, 1979, tolled the time for

filing a petition for review in the court of appeals and that its

petition for review filed on May 24, 1979, therefore was

timely (Pet. 4-7). The court of appeals rejected this argu-

ment. It reasoned that Congress’ evident concern that “re-

solution of EPA orders under FIFRA, like orders under

*The court of appeals stated (Pet. App. 3a) that 40C.F.R. 168.60(c)(1)

(1979) permitted a party to seek judicial review within 60 days after

service of the order, but it concluded that the regulation could not alter

the plain language of the statute, which requires a petition for review to

be filed within 60 days of when the order was entered. The court of

appeals misread the regulation: it provided only that payment of a civil

penalty shall be made within 60 days of service of the final order upon

the party. The regulation did not purport to grant a party 60 days from

the date of service within which to file a petition for review. For good

reason, then, petitioner does not rely on 40 C.F.R. 168.60(c)(1) (1979) in

arguing that its petition for review was timely.

8

other environmental protection statutes, should be made

promptly” militated against extending the time for filing a

petition for review in the court of appeals merely because a

motion for reconsideration has been filed with the agency.

Pet. App. 3a-4a.

Relying on cases arising under other statutes, however,

petitioner argues that the Tenth Circuit’s decision in this

case is in conflict with other decisions that have held that

where a motion for rehearing is filed with the agency there is

no final agency action until rehearing is denied. Pet. 5-6,

citing, inter alia, American Farm Lines Vv. Black Ball

Freight Service, 397 U.S. 532, 541 (1970); CAB v. Delta Air

Lines, Inc., 367 U.S. 316 (1961); and Outland v. CA B, 284

F. 2d 224 (D.C. Cir. 1960). It is not apparent that the

principle of those cases applies to cases arising under

FIFRA, in which the court of appeals perceived a particular

congressional concern for prompt resolution of disputes.

However, even if petitioner were correct that the filing of

a motion for reconsideration with EPA under the procedu-

ral regulations in effect when the current controversy arose

should have postponed the time for filing a petition for

review in the court of appeals, that argument would be

wholly without merit under the procedural regulations that .

now govern the assessment of civil penalties under FIFRA.

These regulations, which replace 40 C.F.R. Part 168 (1979),

provide that a motion to reconsider “shall not stay the

effective date of the final order unless specifically so

ordered by the Administrator.” 40 C.F.R. 22.32.4 In view of

‘This Court has recognized that an agency has considerable discre-

tion to determine when administrative procedures have been suffi-

ciently exhausted and agency action is therefore “final” for purposes of

judicial review. Matthews v. Eldridge, 424 U.S. 319, 330 (1976), Wein-

berger v. Salfi, 422 U.S. 749, 766-767 (1975). Accordingly, there would

appear to be no reason why an agency could not make a determination

that, in general, motions for reconsideration do not raise sufficiently

9

this explicit provision in the current regulations, petition-

er’s argument about the effc_t of a motion for reconsidera-

tion on the timing of judicial under the superseded procedu-

ral regulations implementing FIFRA does not present an

issue of current or general importance warranting review by

the Court.

b. In any event, it does not appear that petitioner could

obtain review in the court of appeals on the merits of the

AL/J’s decision of September 8, 1978, even if it were correct

that a petition for administrative reconsideration ordinarily

postpones the time within which judicial review must be

sought. As pointed out above, because petitioner did not

filean appeal from the ALJ’s decision, that decision became

the “final order” of the Regional Administrator, without

further proceedings, after the expiration of 30 days. See 40

C.F.R. 168.46(c) (1979). Under then-current regulations, a

motion for reconsideration had to be filed within 10 days of

service of the “final order.” 40 C.F.R. 168.70(c) (1979). Yet

here, the motion to reconsider was not filed until April 6,

1979, far more than 10 days after the ALJ’s decision was

served upon petitioner and also far more than 10 days after

that decision became final when no administrative appeal

was taken from it. Asa result, the motion for reconsidera-

tion filed on April 6, 1979, could have been timely only

insofar as it applied to the Regional Administrator's order

of March 19, 1979 denying petitioner’s motion to reopen the

hearing before the ALJ.5 And because only a timely motion

for reconsideration could postpone the time for filing a

petition for judicial review, it follows that the petition for

meritorious claims to warrant postponement of the effective date of the

“final order,” while retaining the discretion to postpone that effective

date on a case-by-case basis where the need arises. That is what EPA has

done in its new regulations.

*That order was received by petitioner on March 27, 1979, 10 days

before it filed its motion for reconsideration.

10

judicial review could be timely only as to the Regional

Administrator’s March 19 order. There can be little doubt

that the Regional Administrator did not err in declining to

order the ALJ to reopen the proceedings to receive addi-

tional evidence about petitioner’s relationship with its

attorneys in the suspension proceedings: that evidence was

not “newly discovered” and could have been presented to

the ALJ in the first instance. Therefore, petitioner has not

been prejudiced by the court of appeals’ dismissal of the

petition for review.

4. Finally, even if petitioner were correct that its filing of

a motion for reconsideration on April 6, 1979, postponed

the time for filing a petition for judicial review until the

motion for reconsideration was denied by EPA, the court of

appeals nevertheless was without jurisdiction here because

petitioner did not file a petition for review in the court of

appeals after EPA denied its motion for reconsideration on

July 9, 1979. The premise of the cases that have held that a

motion for reconsideration filed with the agency postpones

the time for seeking judicial review is that until the motion is

acted upon, there is no “final” agency action subject to

judicial review. American Farm Lines v. Black Ball Freight

Service, supra, 397 U.S. at 541. Thus, under petitioner's

theory, its only petition for review, filed in the Tenth Circuit

on May 24, 1979, was filed before EPA’s action was final. It

was therefore premature and could not vest jurisdiction in

the court of appeals.

Petitioner attempts to avoid this consequence by citing

(Pet. 9) cases that have held that a notice of appeal filed in

district court before the district court judgment actually

becomes final may, in some circumstances, be deemed ade-

quate to take an appeal from the judgment when it later

becomes final. It is not clear that cases governing appeals

from district courts apply to petitions in the courts of

appeals for review of administrative action, which must

take into account the doctrine of exhaustion of administra-

tive remedies. Moreover, by virtue of the 1979 amendments

to Fed. R. App. P. 4, the cases relied upon by petitioner are

of doubtful validity even as regards appeals from the judg-

ments of district courts. As amended, Rule 4(a)(4) provides

that a notice of appeal filed in district court before disposi-

tion by the district court of a motion fora new trial or other

motion for reconsideration “shall have no effect” and that

“{a] new notice of appeal must be filed within the prescribed

time measured from the entry of the order disposing of the

motion.” By parity of reasoning, the petition for judicial

review of EPA’s action filed before EPA disposed of peti-

tioner’s motion for reconsideration could “have no effect,”

and a new petition for review therefore had to be filed in the

court of appeals within 60 days of EPA’s July 9 order

denying the motion for reconsideration. Petitioner failed to

file a petition for review in the court of appeals after July 9.

Accordingly, the court of appeals properly concluded that it

was without jurisdiction in this case.

CONCLUSION

The petition for a writ of certiorari should be denied.

Respectfully submitted.

WabDE H. McCCREE, JR.

Solicitor General

ANGUS MACBETH

Acting Assistant Attorney General

F. PATRICK BARRY

Nancy L. LONG

Attorneys

MARCH 1981

DOJ-1981-02