thank you my name is patty goldman i represent fair health civil rights and farm worker petitioners in this case i will be sharing my argument with mr brody who represents the state intervenors i will address jurisdiction and the merits mr brody will address mandamus using six minutes of our time and we would hope to save three minutes for rebuttal this case challenges an order issued by e p a administrator pruitt in which she denied a petition to ban a pesticide called clear piriformis the order left tolerances in place even though the administrator did not and could not find this pesticide to be safe in fact e p a had found this pesticide unsafe in drinking water in one thousand and twenty fourteen based on acute poisoning risks and then in two thousand and sixteen it found this pesticide unsafe every way children are exposed to it and this time e p a was trying to protect children from damage to their brains from reduced i q to autism attention deficit disorder every parent's fears now e defend on the merits instead it argues that this court lacks the power to decide this case and i would like to turn first to that issue admittedly the food safety law has an administrative exhaustion requirement called objections but rarely do the courts deem administrative exhaustion requirement to be jurisdictional even when they're stated in mandatory terms instead the question is did congress intend to cut off judicial review and override the presumption that all judicial action agency actions are subject to judicial review and here we can look at the food safety law itself as subsection age that is the provision in the first paragraph that provides that judicial review of a set of actions orders and regulations that establish or revoke tolerances are reviewed and that provision provides that review is in the court of appeals not the district court and generally after objections are filed and decided that is one of the provisions that  relies on here but there is another provision h five which prescribes whether judicial review after objections is exclusive and that provision makes it clear that it is not if review of an issue is not obtainable through that path and i want to focus on the distinction in judicial review of actions which is in the court of appeals and judicial review of issues which is not exclusive in the court of appeals after a decision on objections it's not obtainable so congress did not mean for the objection process to be ironclad and unbending and in fact it made it clear that it is not exclusive if an issue cannot be reviewed the process now i know my colleagues rely on various cases i'd like to address one gallo which was a case in  ninth circuit did review a jurisdictional provision but the language my colleague cites was not a holding in that case instead it was dicta gallo was challenging an assessment that it was required to pay into a dairy board that them would promote dairy products and he did challenge that assessment in an administrative process and it never tried to bypass that process instead it sought interim relief it tried to get permission to pay its assessment into an astro account was denied that and that is what it brought to the courts and what the ninth circuit held is that's not a final decision and review of that interim relief must await the end of the administrative note to correct the objections in this case were filed in june of twenty seven eighteen so it's been a little bit less than a year is that a response that's as soon as practical i mean at  has a little room responding to the objections and then they respond the record is then complete and the challenges raised then we have a fuller record in the arguments or flushed out for appellate review is it too soon to act what is your your best argument in terms of excusing awaiting the exhaustion requirement well our best argument is that this this case and our objections are identical and they present purely legal issues  and there are two reasons why judicial review or review of those issues is not obtainable through the objections process the first is e p a exceeded its authority by leaving tolerances in place without making a safety finding under the food safety law e p a can leave tolerances in place only if it finds the pesticide safe and it must publish a finding of safety and particularly for children that there is reasonable certainty of no harm to children it has not done so there's and i doubt that it would contend otherwise and the food safety law requires e p a to revoke tolerances if it finds a pesticide unsafe and that's what it found here in risk assessments that are under starved and in a proposed revocation rule that has not been withdrawn it's hanging out there in legal limbo so e p a can not in the objection process give it self authority the congress has denied it the authority to leave a tolerance in place without a safety finding if i understand your argument is since the only issues here presented by the objections are pure issues of law and they have to act as soon as practicable order the statute a year is more than practicable to respond to pure objections of law yes yes particularly here when we briefed the issues and  clearly also take into account it would be proper for us to take into account the long history of seeming delay in this very case that required prior action by the di circuit on several occasions yes particularly one c p a did find this pesticide on safe then the delay becomes more and more on reasonable and here we have final risk assessments which is how e p a determine safety fining this pesticide say another reason that review is not obtainable through the objection process is e p a is using that process to perpetuate its violation of the law in the pruitt order e p a stated that it did not want to take regulatory action intil twenty twenty two because it wanted to study the science more and it recently told senators that that's what it's doing it's going to keep studying the science maybe make some modifications to pros regulatory action and not take regulatory action until about twenty twenty two so it is using this process to put off the action that congress has compelled now e p a has said there's a difference between ruling on the objections and taking regulatory action but here there is no difference our petition from twenty two thousand and seven revocation of all tolerances and cancellation of all registrations it regulatory action and under the food safety laws when e p a receives a petition it can take alternative actions it can deny the petition or it can issue a final regulation revoking the says here it denied the petition but it left the proposed regulation hanging out there in legal limbo congress did not contemplate that congress tightened up the law in one thousand nine hundred ninety six when  overhaul of our food safety laws it removed discretion from e p a to keep unsafe pesticides on the market i think that if the court has further question i guess i would like to address  what the plaintiffs were doing is trying to bypass court of appeals review instead the plaintiffs went to district court under the administrative procedure act and argued that they could bring their challenges to decisions on tolerances there was the end of a risk assessment process in district court because there was no remedy at law no adequate remedy law in the court of appeals and the second circuit disagreed and said that in that situation filing objections and waiting for a decision was an adequate remedy and it also addressed the language in the food safety law about whether an issue can be reviewed with a review of an issue is obtainable and it found that in that situation where the questions were much more policy and science and applying policy to particular facts that review wasn't a noble in that case sort of as an afterthought was also seeking review under the general pesticide law known by its acronym fifa and again because the court had already found that review was obtainable under the food safety laws it did not apply the age five exception and allow review under fifth right said the issues with the same which is true the legal issues are the same but here the situation is different because review is not obtainable of violating the law by keeping an unsafe past aside in our food and perpetuating the violation through the objection process so i what we would ask this court to do is to decide that it has jurisdiction either by i waiving exhaustion or by finding reviews not obtainable under the may please the court frederick brody of the new york attorney general's office for intervenors seven states in the district of columbia the state's took the unusual step of intervening in this case because we have substantial interest at stake most importantly protecting the health of infants and children within our borders whose brain development is being impaired by clear piriformis residues on food we have agree with petitioners that the on the objections violates the law in two ways first f t c a as your honor pointed out says the objections must be decided as soon as practicable instead of the of deciding the objections  sat on them for thirteen months and i would respectfully correct the court it hasn't been under a year it's been a year and a month and counting i would urge no one no once filed a petition for them mandamus i take it that you clerk purify day by day minute by minute needs and feeding their brain function so it's important to resolve that case as soon as possible this court frequently construes an appeal of an otherwise not appeal  order as a petition for a mandamus cases that affect our cited on page eighteen of our reply brief fortuitously including one by your honor and there are many more those cases defeat  on federal rule twenty one they were not none of them were brought as mandamus petitions in the first place yet this court treated all of them as such with respect to the thirteen months i would ask the court i would decide the objections in thirty days we would also ask the court to retain jurisdiction so that with an administrative decision in hand we could then return to the court supplement the briefs supplement the record and then  fifteen again and twenty sixteen e p a said that it could not find the core purif os tolerance is safe yet by sitting on the objections e p a has kept the tolerances in effect without the required finding of safety in other words e p a s in action has perpetuated the violation of f t c a safety standard without mandamus the agency would be evading judicial review by sheer inaction o the in the federal rules of civil procedure congress has given the district courts the power to of grant relief even if not requested by the appeals well that's the all writs act federal courts may issue all writs necessary or appropriate in aid of their respective jurisdictions and here the in aid of clause is critical utility commission or against bonneville power administration seven sixty seven f second at page six thirty otherwise again by sitting on the objections e p a could defeat the court's jurisdiction i wan used on many food crops that children consume like raspberries blackberries apples this court concluded this court concluded in two thousand and fifteen that considerable human health interests are prejudiced by e p a s most recent human health risk assessment in two thousand and sixteen commented on the breadth of information available to the effect that clear purified causes neurological damage the infants and children second other substantial interests are prejudiced by e p a s delay interview interveners have a strong interest in avoiding the medical and educational costs caused by intellectual disability that results from organ phosphate pesticide exposure those costs have been estimated at more than forty four billion dollars a year that's the athena article cited in footnote three of our brief and of course where purify is the most widely used of the would be appropriate to side them within sixty days we have heard nothing and e p a has not identified a single activity of higher or competing priority that would be affected by immediate action on your purify us and i would respectfully respectfully reserve the rest of my time for my colleagues rebuttal thank you counsel may please the court my name is philip to pray and i'm representing in this action with me at counsel table is erica hill iole also from the department of justice i think the first thing i'd like to do is to encourage the explained why that order is not reviewable under the f at dca then for the first time in the brief the opening brief in this matter but i think so i think it's important to realize that there's sort of two different things going on here one is the question of whether or not the order at issue is reviewable and secondly is this sort of newly created request for main damus relief that is just been brought up in the briefs on those those a procedural issues and then you're going to get to them and that's fine but can i jump ahead and save if we get past the procedural issues in this case has presented the defense on the merits well i think that in this case this goes to why both this court doesn't have jurisdiction and even if it did it's declined review and i think it's important to say that no final decision has been made by e p a you know i think if you look at the process under three forty six a g again it explains you need to twenty twenty two to come to a final decision well i'm glad you brought that up your honor because that as the bertrand declaration stated it is in completely incorrect reading of what ms bertrand stated in her letter to congress think as i understand it without having this court ask for an official response from e p a you know and with the understanding that year from when now you're from that yeah well i think you know i want to focus on why this court both doesn't have jurisdiction and also shouldn't exercise it if it does and that is  as putting forth several declarations as to the science at issue ok and under the effort so forgive me for interrupting the the exhaustion in the process of failure to exhaust becomes jurisdictional doesn't it open up the real possibility that  ministry of agency can effectively deprive the court of ever reaching the review of its determinations by just stretching things al year after year and is is that color blue what happened in this very case or that was the attempt by the e p a well i certainly think don't think there's anything in the record to show that that's the attempt of e p a here obviously you know  a has a lot going on and i think it's unfair to simply assume that any failure to take any particular action is a result of bad faith here i think you know going back to the statute under three forty six a age one it's very clear that the only petitions that are the only actions that are subject to judicial review are those specifically listed which include final decisions under g to see of course that final decision hasn't yet been issued and so i think you know regardless it goes back to how long can if we look treat it as jurisdictional then how long can e a sit on this they were on the verge of a sensually well i think issuing the final regulation right and so now well they are representing that the objections will be responded to within the year from ongoing here i'm not sure what utilizing this two year time period to do well the reason there is not anything in the record here is of course because the record here goes to the underlin decision of the initial decision to deny the petition to revoke and there is no record here with respect to the ministry of jackson's process because essentially that has just been bootstrapped on to there's additional scientific research that's yet to be done it's whether the e p a has violated what it supposed to do by leaving the tolerances in place without terminations that it's safe but i think  there are several things that should be looked at you know value any objections first is i do want to note that the objections that were submitted by petitioners here did include several references to the science at issue and that there is nothing in the statute that would prevent e p a from looking at the science again in the objections process but going specifically to the legal issue of whether or not the denial order met the legal standards under the a as we pointed out in our brief these are the exact same arguments that petitioners have raised here the same legal arguments were brought before the agency and the same legal arguments were brought before the court now of course the agency is considering these arguments but it has not made a final decision it may well decide and you know changes decision in find in favor of petitioners in the human history of objections process and i think that goes to the utility question and that is utility that extremely high bar in order to find that further administrative action would be futile again we simply as as noted by the statute statutory structure we don't have a final decision here and therefore it's simply premature to defend e p a s decision on the merits because it hasn't yet made a decision on the merits that decision will come after the administrative objections process pursuant to the f t c statutory structure and so once that final decision has been made under three forty six age one petitioners will have a clear opportunity to petition this court for review if they disagree with the final decision that is taken by e p a but again i think it's important to look at the text of the statue which makes clear what actions are actually reviewable in this court and only final decisions after the human history of objections process are reviewable by this court ok and it's unclear why petitioners think they can get around that simply by saying you know well it's clearly illegal therefore we don't have to go through the administrative objections process but of course that's putting the before the horse in two ways first because he hasn't made a final decision and to of course that assumes that he has actions were in fact illegal or improper which is not really appropriate to do in the course of having a an administrative objections process and so i think again you know i maybe i misunderstood their argument but i think the argument was that as soon as practicable is relit is relevant relative to the arguments and objections raised if the objections raised are purely legal objections and if they as you yourself indicated have been raised in one form or another many many times how can it be assignment it's you know maybe you need an extension on your paper but not a year well you know i think you know i'm i'm not in a position to address today you know how u p a will address the various objections  of you know that can be done very quickly these cases are never simple they're never simple and it's a complex record we recognize that but you know it's been going on for years now and the objections were filed well over a year ago so while i take your point that there's no fertility i think there's a reasonable miss issue and that's what i understand plaintiff's argument is really going that given that there's no new scientific studies that are being convening conducted the e p a is saying it wants to look at the science again right and then there are legal objections that that you both sides have been down this road in terms of what the legal arguments are just and reasonable to sit on it until two thousand and twenty two that's that's the argument and now now you know it wasn't in the record but now you're saying well it's not going to take us to twenty twenty two i think we'll need another year from now and so the question is as the definition of the soonest practical given the factual record in this case is two years a reasonable time frame for the e p a to really respond assuming that we can get past the i you know i'm really not in a position to address that today again you know we're here to talk about whether or not the underlying petition for review is properly before this court  and whether or not this court should rule on it e p a hasn't made a final decision on this and i think if we if we decide that it is properly before the court what does the e p a want us to do well i think  is now properly before the panel to decide what would you like that decision to be go to the merits of the case order a short time frame for the e p a to respond to the objections well i think the will certainly not go to the merits of the case and the reason being is e p a hasn't made a final decision so it's it's i simply can't stand up here and say the initial order denying the petition to revoke tolerances for false was one hundred percent right because of course that is was presented to e p a n e p has yet to make its final decision i think there is a separate issue that goes to the administrative objections process and i think if we were sort of issued an order and if you would have responded to that issue and would have come back i'm not quite following what you're saying in response to judge wind question the statute says as soon as practicable ye while a lot of deference has to be given to the agency when all said and done that's a congress has said that's the law and it's the duty of this with and this is again assuming argue and we disagree with you on jurisdiction it's then we would issue an order presumably if we don't agree with the mandamus approach of your adversary we would issue an order saying you must respond we know you have made a final decision now you're going to have to make one life is tough and  you need to make it by day x and i take it the date x you would say is one year from now well i think what i would say is that you know current intention is they expect to have a final decision within a year from now  i think there are what i would also note is simply that you know we're not prepared at this point to address whether or not you know what is required under three forty six a g to see in terms of what as soon as practicable means in this context i think it's like i'm glad to take up clarify that because i thought your response to my question was well if you rule against us on these other issues then the e p a would actually prefer new order directing it to respond with then whatever we determine assume is practical to mean because i thought your response was i don't want the amus request essentially what our position is is that the initial decision is not properly before this court and that you know the reason the court shouldn't reach the merits is both jurisdictional and practicable in part because the administrative objections process will still be ongoing and so e p a is eventually going to issue a decision on the administrative jackson's process and so it simply is  there is no need for this court to reach the merits because e p a still considering what will be its final decision separately the court this court could very well agree with us that it does not have jurisdiction to  review the does the underlying decision in this matter the initial decision denying the petition to revoke the tolerances for court but it could find that men damus order would be appropriate to ask the agency to respond to the administrative objections within a time certain certainly this court does have that jurisdiction although we would notice a few things you know first is obviously we don't think that request has been properly raised as a matter of procedure and we certainly would request an opportunity to respond directly on that issue in terms of timing for the ministry of objections process before this court were to issue any sort of order all right so great and again you know i think what's important to note is the statutory structure of the f f t ca is clear initial decisions on a petition to revoke a tolerance for a pesticide are not subject for to judicial review only after an administrative objection has been filed and e p a issues a final decision on those administrative objections is that final decision subject to review the initial decision is not subject to you and that's a clear structure that is set out e p a is considering the administrative objections you thank you i would like to address a couple of points first finality my colleague has argued that there is no final decision about the decision the pruitt order is a final decision on the petition it is it's denominated as such  and i think my colleague is confusing finality and exhaustion supreme court in darby said the two are distinct and the n r d c case in the second circuit held that a decision on the tolerances was final even though it might be undergoing  some or be subject to some administrative review and that is the case here this is final it denied the petition if he had reached the opposite result and issued the revocation order clear pair of us would have been out of our food supplies by october first twenty seventeen it's very final that that is not happen and children are being exposed to this pesticide in terms of the objections under the food safety law objections do not rehash what has already been decided in prior comment instead they can only raise new issues here the issues were before e p a it had acknowledged it could not retain tolerances without a safety finding it had done so in its proposed rules and when it reopen the comment period what changes decided to flout the law it decided not to do what it had previously conceded was the law and i'd like to turn to what my colleague has disclosed today for the first time is that i think he used the word expect that he  expects to do something within a year and i'm not sure what he meant we'll where had you been notified that the decision on the objections as would be forthcoming within a year timeframe no we haven't heard anything from  all we've heard was through the letter to the senators that they plan to keep studying the issue and not take regulatory action until two thousand and twenty two to the extent my colleague says something might happen i'm not sure if he means a paper response to the objections and that's yet or final regulatory action and if the decision is to uphold with the pruitt order said that means legal limbo until two thousand and twenty two that's illegal and we will be denied any remedy and children will continue to be exposed to this very dangerous pesticide so we asked the court our first task is to decide that you have jurisdiction reach the merits and re man to e p a to finalize the revocation order within sixty days alternatively if the court believes it doesn't have jurisdiction give a sixty day time line to decide the objections and take regulatory action retain jurisdiction so there could be expedited briefing and a decision in a