                  FOR PUBLICATION
  UNITED STATES COURT OF APPEALS
       FOR THE NINTH CIRCUIT

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.                           No. 08-35528
ADMINISTRATOR, ENVIRONMENTAL
PROTECTION AGENCY,
                                               D.C. No.
                                           2:04-cv-00099-RSM
               Defendant-Appellee,              OPINION
                and
GOWAN COMPANY,
    Defendant-intervenor-Appellee,
BAYER CROPSCIENCE LP;
MAKHTESHIM AGAN OF NORTH
AMERICA INC,
             Intervenors-Appellees.
                                       
       Appeal from the United States District Court
          for the Western District of Washington
       Ricardo S. Martinez, District Judge, Presiding

                  Argued and Submitted
           August 7, 2009—Seattle, Washington

                   Filed January 26, 2010

Before: Harry Pregerson, John T. Noonan and Carlos T. Bea,
                      Circuit Judges.

                            1491
1492   UNITED FARM WORKERS v. ADMINISTRATOR, EPA
              Opinion by Judge Noonan;
              Dissent by Judge Pregerson
        UNITED FARM WORKERS v. ADMINISTRATOR, EPA       1493




                        COUNSEL

Kristen L. Boyles, Seattle, Washington, for the appellant.

Ronald J. Tenpas, Washington, D.C., for the appellee.

Beth S. Ginsberg, Seattle, Washington, for the intervenor-
appellee Gowan Co.

B. Weinberg, Washington, D.C., for the intervenor-appellee
Makhteshim Agan of North America, Inc.
1494    UNITED FARM WORKERS v. ADMINISTRATOR, EPA
                          OPINION

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 cor-
rectly 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 Insecti-
cide, 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 envi-
ronmental groups, and the Farm Workers. On April 27, 2007,
the Farm Workers amended their 2004 complaint to challenge
the final decision.
          UNITED FARM WORKERS v. ADMINISTRATOR, EPA                   1495
   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

   [1] 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 pro-
      vided in this subchapter, the refusal of the Adminis-
      trator 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 judi-
      cially reviewed by the district courts of the United
      States. 7 U.S.C. § 136n(a).

   [2] 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 jurisdic-
tion exists in the district court. Was there a hearing?1

   [3] “Hearing” is a familiar term in the legal process. It iden-
tifies elements essential in any fair proceeding — notice be
given of a decision to be made and presentation to the deci-
sionmaker of the positions of those to be affected by the deci-
sion. By itself, the term does not connote more. “Hearing” is
no doubt metaphorical, and a “hearing” includes proceedings
  1
    The district court did not gain jurisdiction over this case in 2004 when
the government settled the case contingent on the EPA’s final determina-
tion 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.
1496      UNITED FARM WORKERS v. ADMINISTRATOR, EPA
in which there is no presentation of public argument.2 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.

  [4] 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 exclu-
      sive jurisdiction to affirm or set aside the order com-
      plained 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
  2
    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.
         UNITED FARM WORKERS v. ADMINISTRATOR, EPA            1497
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.

   [5] On this construction, review of the contested decision
in this case should have been sought in this court. Unfortu-
nately for the appellants it is now too late to seek it here. Peti-
tions for review must be filed 60 days afer the decision. Id.
The time is past.

  Case Law.

   [6] The bellwether case addressing appellate court jurisdic-
tion over administrative law decisions has rejected the argu-
ment 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 require-
    ment is satisfied when the EPA conducts proceed-
1498    UNITED FARM WORKERS v. ADMINISTRATOR, EPA
    ings 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, 1087 (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 reg-
istration, 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.

   [7] Unsurprisingly, governing precedent confirms our read-
ing of the statutory language. We add as final confirmation
the wise words of Justice Brennan resolving a vexing statu-
tory 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 (1985).

  Accordingly, the judgment of the district court is
AFFIRMED.



PREGERSON, Circuit Judge, dissenting:

   In this case, the EPA used a cost-benefit analysis to allow
the continued use of a highly toxic chemical, AZM. The
adverse effects of AZM on people exposed to AZM, such as
         UNITED FARM WORKERS v. ADMINISTRATOR, EPA                 1499
agricultural workers, include “headache, nausea, and dizzi-
ness. Anxiety and restlessness are also prominent. Worsening
may result in twitching, weakness, tremor, incoordination,
vomiting, abdominal cramps, diarrhea. Often prominent are
sweating, salivation, tearing, and rhinorrhea.” In 2006, after
receiving written comments from the public (“notice and
comment”), the EPA issued an order that permitted growers
to continue spraying of AZM on certain crops until 2012,
after which the use of AZM would be “phased out.”

   In short, without hearing any witness testimony or review-
ing anything other than the submission of written comments,1
the EPA struck the cost-benefit analysis in favor of the AZM
manufacturers and the growers who use AZM and against the
agricultural workers and the environment. Because AZM’s
toxic effects endanger the health of agricultural workers, the
plaintiff-appellants, United Farm Workers of America (“Farm
Workers”)2 opposed the continued use of AZM and chal-
lenged the EPA’s order in federal district court.

   To resolve this case we are required to interpret the words
“public hearing” under Section 16(b) of the Federal Insecti-
cide, Fungicide, and Rodenticide Act (FIFRA), 7 U.S.C.
§ 136 et seq. Under § 16(b), whether the Farm Workers
should have filed for review in federal district court or in the
federal court of appeals depends on whether the EPA’s notice
and comment procedure amounted to a “public hearing.” 7
U.S.C. § 136n(b). Simply put, if there was a public hearing,
the Farm Workers would have been correct to file in the court
of appeals. 7 U.S.C. § 136n(b). If there was not a public hear-
  1
     The EPA did conduct “meetings” with “stakeholders” in Michigan,
California, Oregon, and Washington, which are areas of high AZM use,
which were considered in addition to the written comments. Transcripts of
these “meetings” are not part of the record.
   2
     Other groups are joined as plaintiffs, including: Sea Mar Community
Health Center, Pineros y Campesinos Unidos Del Noreste, Beyond Pesti-
cides, Frente Indegena de Organizaciones Binacionales, and Arnulfo
Lopez.
1500        UNITED FARM WORKERS v. ADMINISTRATOR, EPA
ing, the Farm Workers were correct to file in district court. 7
U.S.C. § 136n(a)-(b).

   The Farm Workers sought review in the district court. They
correctly determined that the court of appeals lacked jurisdic-
tion to hear their challenge to the EPA’s order because the
only evidentiary material presented to the EPA was in the
form of written comments. The Farm Workers correctly con-
cluded that this limited process did not constitute a public
hearing. Unfortunately for the Farm Workers, the district
court granted the defendant-appellee-intervenors’3 (the AZM
manufacturers) motion to dismiss for lack of jurisdiction.4 The
district court held that the court of appeals was the appropriate
forum for the Farm Workers’ challenge to the EPA’s order
because the EPA’s notice and comment procedure constituted
a “public hearing.” The majority would affirm the district
court’s ruling that the EPA’s solicitation of written comments
from the public is a “public hearing” under § 16(b) and that
the Farm Workers should have filed their challenge to the
EPA’s order in the court of appeals. Maj. Op. at 1496.5 I dis-
agree.

                            DISCUSSION

I.       The Words “Public Hearing” in Section 16(b) Refer to
         a Quasi-Judicial Process, not Mere Solicitation of
         Written Comments from the Public

     Section 16(b) of FIFRA does not define the phrase “public
     3
    Defendant-intervenor-appellees are: Gowan Company, Makhteshim
Agan of North America, Inc., and Bayer Cropscience LP. These three
companies manufacture AZM.
  4
    It is worth noting that the EPA did not join in the AZM manufacturers’
motion to dismiss for lack of jurisdiction.
  5
    The majority further holds that the Farm Workers can no longer seek
review in our court because the 60 day time limit for filing their petition
has expired. Maj. Op. at 1497 (citing 7 U.S.C. § 136n(b)).
          UNITED FARM WORKERS v. ADMINISTRATOR, EPA                   1501
hearing.” An examination of (1) the remaining language in
§ 16(b); (2) other sections of FIFRA; and (3) case law inter-
preting § 16(b), however, leads to the inexorable conclusion
that a “public hearing” requires some sort of quasi-judicial
process at the agency level. In the absence of other proce-
dures, solicitation of written comments from the public will
not suffice as a “public hearing.”

  A.    Section 16(b)’s Reference to a “Party to the Pro-
        ceedings” Indicates that a Public Hearing is a
        Quasi-Judicial Process

   FIFRA § 16(b) allows a “person who will be adversely
affected by [an EPA] order and who had been a party to the
proceedings” to challenge in the court of appeals “any order
issued by the [EPA] Administrator following a public hear-
ing.” 7 U.S.C. § 136n(b) (emphasis added).6

   The phrase “a party to the proceedings” clearly contem-
plates a quasi-judicial proceeding at the agency level, not the
agency’s solicitation of written comments from the public. If
solicitation of written comments from the public satisfied
§ 16(b)’s “public hearing” requirement, as the majority con-
cludes, then the “part[ies] to the proceedings” before the EPA
would be difficult to identify. Would every member of the
public who submitted a written comment, no matter how long
or substantive, be a “party to the proceedings?” Surely that
cannot be the case.7
  6
     Challenges to “other final actions of the Administrator” “not following
a hearing” must be brought in district court under Section 16(a) of the
FIFRA. 7 U.S.C. § 136n(a). Unlike 16(b), Section 16(a) does not require
the person challenging the EPA’s action to have been a “party to the pro-
ceedings” before the EPA. 7 U.S.C. § 136n(a)-(b).
   7
     In this case, the EPA received comments from “growers, grower
groups, university extension agents, worker and environmental advocacy
groups, registrants, and other members of the public.” I do not believe that
all of these organizations, corporations, and individual members of the
public were “parties to the proceedings” before the EPA.
1502    UNITED FARM WORKERS v. ADMINISTRATOR, EPA
   The majority cites Environmental Defense Fund v. Costle
for the proposition that, despite the fact that § 16(b) refers to
a “party to the proceedings,” the Environmental Defense Fund
court refused to restrict the meaning of a “public hearing” to
a “quasi-judicial” proceeding. Maj. Op. at 1497 (citing Envtl.
Def. Fund v. Costle, 631 F.2d 922 (D.C. Cir. 1980)). The
majority downplays, however, the role that the extensive
record played in the Environmental Defense Fund decision. In
Environmental Defense Fund, unlike in the present case, in
addition to written comments, the parties submitted “legal
memoranda” and “briefs.” Envtl. Def. Fund, 631 F.2d at 926.
Further, in Environmental Defense Fund the record included
proceedings before an administrative law judge (“ALJ”). Id.
at 925.

   While the EPA’s notice and comment procedure poses spe-
cial problems in identifying who qualifies as a “party to the
proceedings,” no such confusion arises when the proceedings
at the agency level are quasi-judicial in nature. When the pro-
ceedings before the agency involve opposing parties present-
ing their arguments to an “ALJ,” the “parties to the
proceedings” are readily determinable.

  B.   FIFRA Section 6(d) suggests that a public hearing
       is a quasi- judicial process

   FIFRA§ 6(d) indicates that a “public hearing” is a quasi-
judicial process. Section 6(d), entitled “Public hearings and
scientific review,” describes a fairly extensive adjudicative
process allowing for subpoenas and live testimony. 7 U.S.C.
§ 136d(d). The “public hearing” contemplated in Section 6(d)
is to be overseen by a “hearing examiner” whose decisions
regarding discovery “shall be guided by the principles of the
Federal Rules of Civil Procedure.” 7 U.S.C. § 136d(d). Our
interpretation of the words “public hearing” in § 16(b) should
be shaped by the definition set forth in § 6(d) of the same stat-
ute. Thus, a public hearing is more than just notice and com-
          UNITED FARM WORKERS v. ADMINISTRATOR, EPA                  1503
ment procedure, but includes oversight by a hearing examiner
and the submission of live testimony.

  C.    Notice and comment would be sufficient to consti-
        tute a public hearing in the context of a quasi-
        judicial proceeding

   The majority relies on Northwest Food Processors v.
Reilly, 886 F.2d 1075 (9th Cir. 1989), and Environmental
Defense Fund to support its proposition that solicitation of
comments alone constitutes a “public hearing” under FIFRA
§ 16(b). Maj. Op. at 1497.8 Far from supporting the majority’s
conclusion, these cases demonstrate that a “public hearing”
under § 16(b) refers to a quasi-judicial process. Unlike this
case, where only written notice and comment proceedings
took place, the administrative proceedings in both Northwest
Food Processors and Environmental Defense Fund were
quasi-judicial proceedings before an ALJ. Nw. Food
Processors, 886 F.2d at 1077 (describing agency proceedings
before an ALJ); Envntl. Def. Fund, 631 F.2d at 925 (describ-
ing agency proceedings before a “Chief” ALJ).

   The majority also cites Humane Society of United States v.
EPA, 790 F.2d 106 (D.C. Cir. 1986), to support its conclusion
that “notice and comment” constitutes a “public hearing.”
Maj. Op. at 1498. Reliance on Humane Society, however, is
also misplaced, as the administrative proceedings in that case
   8
     The majority correctly notes that the courts in Environmental Defense
Fund and Northwest Food Processors based their decisions on the ade-
quacy of the administrative record. Maj. Op. at 1497. The majority
neglects to mention, however, that the courts in Environmental Defense
Fund and Northwest Food Processors examined the adequacy of the
administrative record when the administrative proceedings involved a
quasi-judicial process. Nw. Food Processors, 886 F.2d at 1077; Envntl.
Def. Fund, 631 F.2d at 925. In fact, as the Farm Workers argue, “every
published case that discusses FIFRA’s jurisdictional provisions under sec-
tion 16 involved either quasi-judicial proceedings before an administrative
law judge or public proceedings with live witness testimony.”
1504    UNITED FARM WORKERS v. ADMINISTRATOR, EPA
involved more than simply “notice and comment.” Indeed, in
Humane Society the administrative proceedings comprised
“[w]ell over 20,000 pages in hearing testimony and exhibits
. . . with dozens of parties actively participating in the pro-
ceeding. Over 90 witnesses testified.” 790 F.2d at 112 n.49
(emphasis added). The Humane Society administrative record
also included an “adjudicatory hearing” overseen by an ALJ.
Id. at 109 n.7, 112 n. 46; see also 46 Fed. Reg. 59,622 (1981)
(notice of “adjudicatory hearing”).

   The majority concludes by citing Fla. Power & Light Co.
v. Lorion, 470 U.S. 729, 745 (1985), for the proposition that
absent a “firm indication” to the contrary, we should presume
that Congress intends to place the review of administrative
decisions under the Administrative Procedure Act in the
courts of appeal. That case considered whether the court of
appeals could review a petition under 42 U.S.C. § 2239(b)
and the Hobbs Act. See, e.g., Lorion, 470 U.S. at 737-45.
Lorion did not, however, “intimate that it was ruling as a mat-
ter of general administrative procedure.” Nader v. EPA, 859
F.2d 747, 754 (9th Cir. 1988); see also Am. Portland Cement
Alliance v. EPA, 101 F.3d 772, 779 (D.C. Cir. 1996). Nothing
in Lorion discusses or refers to FIFRA, the statute involved
in this case.

                      CONCLUSION

   When Congress chose the phrase “public hearing” in
§ 16(b) of FIFRA, it intended, as with other administrative
proceedings, that where a quasi-judicial “public hearing” took
place a matter should be reviewed by the court of appeals
where an adequate record already existed and no fact finding
remained. Where the factual record is inadequate and where
no quasi-judicial “public hearing” has taken place, Congress
intended to allocate jurisdiction to the district court for the
development of the record. In this case, there has been no
public hearing, but only the submission of written comments
to the agency. The district court would conduct a public hear-
         UNITED FARM WORKERS v. ADMINISTRATOR, EPA                 1505
ing, take the testimony of witnesses, rule on challenges to the
evidence submitted, and render a decision based on the
court’s factual findings and on the applicable law. Accord-
ingly, in this case the district court had jurisdiction.

   Further, the text of the FIFRA and prior court decisions
interpreting § 16(b) reveal that a “public hearing” refers to a
quasi-judicial process, not the mere solicitation of written
comments from the public. The Farm Workers were correct,
therefore, in seeking review of the EPA’s order in the district
court.

   Moreover, the merits of this case, although not at issue on
appeal, warrant close inspection of proper jurisdiction to
ensure that the Farm Workers have a forum for their com-
plaints. Here, the Farm Workers sought review of an EPA
order allowing for the continued use of a highly toxic pesti-
cide, endangering agricultural workers and the environment.9
Using a cost-benefit analysis based on the submission of writ-
ten comments, the EPA determined that the commercial gains
in the continued use of AZM outweighed the potential risks
to human health and safety and the environment. The majority
construes § 16(b) in such a way as to preclude review of this
compelling case and that is why I dissent.




  9
    The EPA’s final decision of November 16, 2006, explains that AZM
is “very highly toxic to freshwater and marine fish and invertebrate spe-
cies as well as to birds, mammals, and beneficial insects, such as honey
bees” with a “high risk of mortality to numerous aquatic and terrestrial
species” when used on apples.
