                 FOR PUBLICATION

   UNITED STATES COURT OF APPEALS
        FOR THE NINTH CIRCUIT

LEAGUE OF UNITED LATIN AMERICAN         No. 17-71636
CITIZENS; PESTICIDE ACTION
NETWORK NORTH AMERICA;                  Environmental
NATURAL RESOURCES DEFENSE                 Protection
COUNCIL; CALIFORNIA RURAL LEGAL            Agency
ASSISTANCE FOUNDATION;
FARMWORKERS ASSOCIATION OF
FLORIDA; FARMWORKER JUSTICE
GREENLATINOS; LABOR COUNCIL FOR
LATIN AMERICAN ADVANCEMENT;
LEARNING DISABILITIES ASSOCIATION
OF AMERICA; NATIONAL HISPANIC
MEDICAL ASSOCIATION; PINEROS Y
CAMPESINOS UNIDOS DEL NOROESTE;
UNITED FARM WORKERS,
                         Petitioners,

                 v.

ANDREW WHEELER, Administrator,
United States Environmental
Protection Agency; U.S.
ENVIRONMENTAL PROTECTION
AGENCY,
                        Respondents,


STATE OF NEW YORK; STATE OF
MARYLAND; STATE OF VERMONT;
2                 LULAC V. WHEELER


STATE OF WASHINGTON;
COMMONWEALTH OF
MASSACHUSETTS; DISTRICT OF
COLUMBIA; STATE OF CALIFORNIA;
STATE OF HAWAII,
                      Intervenors.


LEAGUE OF UNITED LATIN AMERICAN         No. 19-71979
CITIZENS; PESTICIDE ACTION
NETWORK NORTH AMERICA;                     EPA No.
NATURAL RESOURCES DEFENSE               EPA-HQ-OPP-
COUNCIL; CALIFORNIA RURAL LEGAL           2007-1005
ASSISTANCE FOUNDATION;
FARMWORKERS ASSOCIATION OF
FLORIDA; FARMWORKER JUSTICE;
LABOR COUNCIL FOR LATIN
AMERICAN ADVANCEMENT;
LEARNING DISABILITIES ASSOCIATION
OF AMERICA; NATIONAL HISPANIC
MEDICAL ASSOCIATION; PINEROS Y
CAMPESINOS UNIDOS DEL NOROESTE;
UNITED FARM WORKERS;
GREENLATINOS,
                         Petitioners,

                 v.

ANDREW WHEELER, Administrator,
United States Environmental
Protection Agency; U.S.
ENVIRONMENTAL PROTECTION
AGENCY,
                        Respondents.
                  LULAC V. WHEELER                       3


STATE OF NEW YORK; STATE OF               No. 19-71982
CALIFORNIA; STATE OF WASHINGTON;
STATE OF MARYLAND; STATE OF                  EPA No.
VERMONT; COMMONWEALTH OF                  EPA-HQ-OPP-
MASSACHUSETTS,                              2007-1005
                       Petitioners,

                 v.                         ORDER

ANDREW WHEELER, Administrator,
United States Environmental
Protection Agency; U.S.
ENVIRONMENTAL PROTECTION
AGENCY,
                        Respondents.

                 Filed October 16, 2019

Before: Sidney R. Thomas, Chief Judge, and M. Margaret
   McKeown, Kim McLane Wardlaw, Richard A. Paez,
 Carlos T. Bea, Morgan Christen, Jacqueline H. Nguyen,
Paul J. Watford, John B. Owens, Michelle T. Friedland and
             Mark J. Bennett, Circuit Judges.

                         Order;
                  Dissent by Judge Bea
4                     LULAC V. WHEELER

                          SUMMARY *


                  En Banc / Comeback Case

    The en banc court voted to accept petitions filed in
League of United Latin American Citizens v. Wheeler, No.
19-71979 (“LULAC II”), and New York v. Wheeler, No. 19-
71982, as “comeback cases.” The en banc court referred the
cases to the three-judge panel that heard League of United
Latin American Citizens v. Wheeler, No. 17-71636
(“LULAC I”) for resolution on the merits. The en banc court
retained jurisdiction over any subsequent en banc hearing
arising out of any decision of the three-judge panel.

    The en banc court granted respondents’ motion to
dismiss LULAC I because the Environmental Protection
Agency’s issuance of the Final Order Denying Objections to
March 2017 Petition Denial Order, 84 Fed. Reg. 35,555 (Jul.
24, 2019), mooted the petition for review of the Order
Denying the Petition to Revoke Tolerances, 82 Fed. Reg.
16,851 (Apr. 5, 2017).

    Judge Bea, joined by Judge Bennett, dissented from the
majority’s order to the extent that it accepted as “comeback
cases” petitions for review in case nos. 19-71979 and 19-
71982, because the cases did not involve substantially the
same issues as were properly presented to the en banc court.
Judge Bea would assign the new petitions to a random three-
judge panel through the normal process.



    *
      This summary constitutes no part of the opinion of the court. It
has been prepared by court staff for the convenience of the reader.
                   LULAC V. WHEELER                        5

                         ORDER

    We have been notified of the petitions filed in League of
United Latin American Citizens v. Wheeler, No. 19-71979
(“LULAC II”), and New York v. Wheeler, No. 19-71982
(“New York”), and have voted to accept those cases as
“comeback cases.” See Ninth Circuit General Order 3.6(b).
Pursuant to our comeback procedures, see id., LULAC II and
New York are REFERRED to the three-judge panel that
heard League of United Latin American Citizens v. Wheeler,
No. 17-71636 (“LULAC I”) for resolution on the merits.
This en banc panel will retain jurisdiction over any
subsequent en banc hearing arising out of any decision of the
three-judge panel.

    Respondents’ Motion to Dismiss LULAC I (Case No. 17-
71636, Dkt. No. 174) is GRANTED because EPA’s
issuance of the Final Order Denying Objections to March
2017 Petition Denial Order, 84 Fed. Reg. 35,555 (July 24,
2019) mooted the petition for review of the Order Denying
PANNA and NRDC’s Petition to Revoke Tolerances,
82 Fed. Reg. 16,581 (Apr. 5, 2017).

    Petitioners’ Cross-Motion for Leave to File Amended
Petition for Review (Case No. 17-71636, Dkt. No. 178) and
Intervenors’ Cross-Motion to Consolidate the Proceeding
with a Newly-Filed Petition (Case No. 17-71636, Dkt. No.
177) are DENIED as MOOT.

    The Motion to Consolidate that was filed in New York
(No. 19-71982, Dkt. No. 2), which seeks to consolidate all
three cases, is DENIED as MOOT as to consolidation with
LULAC I and GRANTED as to consolidation between
LULAC II and New York. Petitioners’ Unopposed Motion to
6                  LULAC V. WHEELER

Correct Caption to Include GreenLatinos, which was filed in
LULAC II (No. 19-71979, Dkt. No. 2), is GRANTED.



BEA, Circuit Judge, joined by BENNETT, Circuit Judge,
dissenting:

    I respectfully dissent from the majority’s order to the
extent that it accepts as “comeback cases” petitions for
review filed in LULAC v. Wheeler, No. 19-71979 (“LULAC
II”) and New York v. Wheeler, No. 19-71982 (“New York”),
which do not involve substantially the same issues as were
properly presented to the en banc panel in this
jurisdictionally baseless—and now dismissed—petition for
review of a non-final agency action.

                             I

    In this case, League of United Latin American Citizens,
Pesticide Action Network North America (“PANNA”),
Natural Resources Defense Council (“NRDC”), California
Rural Legal Assistance Foundation, Farmworkers
Association of Florida, Farmworker Justice GreenLatinos,
Labor Council for Latin American Advancement, Learning
Disabilities Association of America, National Hispanic
Medical Association, Pineros Y Campesinos Unidos del
Noroeste, and United Farm Workers (collectively,
“LULAC”) petitioned for review of the Environmental
Protection Agency (“EPA”)’s 2017 order denying a 2007
petition to revoke all tolerances for the pesticide
chlorpyrifos. See Chlorpyrifos; Order Denying PANNA and
NRDC’s Petition to Revoke Tolerances, 82 Fed. Reg.
                     LULAC V. WHEELER                             7

16,581, 16,583 (Apr. 5, 2017) (“Initial Denial Order”). 1 A
majority of the original three-judge panel held that it had
jurisdiction over and granted LULAC’s petition for review.
LULAC v. Wheeler (“LULAC I”), 899 F.3d 814, 821–26 (9th
Cir. 2018). Dissenting, Judge Fernandez explained why no
such jurisdiction existed because the Initial Denial Order
was not a final agency action. Id. at 830–33.

    A majority of nonrecused active judges subsequently
voted that this case be reheard en banc. Order, LULAC v.
Wheeler, No. 17-71636 (Feb. 6, 2019), ECF No. 145. A
central question for the en banc panel was whether the three-
judge panel had statutory subject matter jurisdiction to
review the EPA’s Initial Denial Order. But the en banc panel
never decided that question. Instead, because the EPA
“conceded at oral argument that we may consider LULAC’s
request as a Petition for a Writ of Mandamus, and it had a
full opportunity to respond . . . . we exercise[d] our
discretion to construe the opening brief as a request for
mandamus relief” and granted the Petition for a Writ of
Mandamus. Order at 6, LULAC v. Wheeler, No. 17-71636
(Apr. 19, 2019), ECF No. 171. We accordingly ordered the
EPA “to issue, no later than 90 days after the filing of [the
mandamus] order, a full and final decision on LULAC’s
objections.” Id. Our mandamus order stated that we would
“retain jurisdiction over this and any related cases.” Id. at 7.

   Exactly 90 days later, the EPA complied with our
mandamus order and issued its Final Denial Order. See

    1
       The States of New York, Maryland, Vermont, Washington,
California, and Hawaii, as well as the Commonwealth of Massachusetts
and the District of Columbia (collectively, “States”), intervened in
support of LULAC’s petition.
8                      LULAC V. WHEELER

Chlorpyrifos; Final Order Denying Objections to March
2017 Petition Denial Order, 84 Fed. Reg. 35,555 (Jul. 24,
2019) (“Final Denial Order”). Following the Final Denial
Order’s issuance, LULAC and the State-Intervenors 2 filed
new petitions for review. See LULAC v. Wheeler, No. 19-
71979; New York v. Wheeler, No. 19-71982.

   Now pending in this case is (1) the EPA’s Motion to
Dismiss this case as moot, see ECF No. 174; (2) LULAC’s
Cross-Motion for Leave to File Amended Petition for
Review in this case, to add a petition for review of the Final
Denial Order, see ECF No. 178; and (3) Intervenors’ Cross-
Motion to Consolidate this case with New York v. Wheeler,
No. 19-71982, see ECF No. 177. Separately pending is a
Motion to Consolidate filed in New York, which seeks to
consolidate all three cases, see No. 19-71982, ECF No. 2.

                                  II

    As explained in Judge Fernandez’s well-reasoned
dissent to the three-judge panel’s opinion granting LULAC’s
petition for review of the EPA’s Initial Denial Order, there
was no subject matter jurisdiction grant by the relevant
statute for the three-judge panel to review the Initial Denial
Order. Neither, I would submit, would the en banc panel
have had such jurisdiction. Not until the EPA overruled
LULAC’s objections to the Initial Denial Order and issued
its Final Denial Order on July 18, 2019 did an order exist
over which the relevant statute made petition for review
available in our Court.

    2
      The State of Hawaii and the District of Columbia did not initially
join the States’ petition for review of the Final Denial Order, but have
since moved to intervene in that action, as has the State of Oregon. See
New York v. Wheeler, No. 19-71982, ECF Nos. 13, 15, 18.
                    LULAC V. WHEELER                          9

    When the EPA issued that Final Denial Order, the
jurisdictionally baseless appeal from the Initial Denial Order
became moot, as the majority recognizes in granting the
EPA’s motion to dismiss LULAC I as moot. Although I
agree that dismissing the original petition as moot is the right
start, I respectfully disagree with the majority’s decision to
accept the petitions for review of the Final Denial Order as
comeback cases, which is a necessary first step for the en
banc panel to then refer the new petitions to the original
three-judge panel under Ninth Circuit General Order 3.6(b).

    Ninth Circuit General Order 1.12 describes “Comeback
Cases” as “subsequent appeals or petitions from a district
court case or agency proceeding involving substantially the
same parties and issues from which there previously had
been a calendared appeal or petition.” And the underlying
rationale for taking a case as a comeback is that a panel has
some special insight into the new appeal or petition based on
dealing with the merits of substantially similar issues that
were properly presented in a previous appeal or petition. To
characterize the new petitions as comeback cases then, we
would need to find that properly presented issues in the new
petitions are “substantially the same” as properly presented
issues in LULAC’s petition for review of the Initial Denial
Order (the merits of which we never considered in LULAC
I), and that we thus have special insight into the properly
presented issues in the new petitions for purposes of
reviewing them. In my view, the new petitions do not
involve substantially similar issues and we have no such
special insight. The only properly presented issue before the
en banc panel in LULAC I was whether the Court had
jurisdiction to review the Initial Denial Order (aside from the
request for mandamus relief we construed into LULAC’s
opening brief). Lacking jurisdiction to reach the merits of
10                  LULAC V. WHEELER

the Initial Denial Order, there is nothing substantially the
same between LULAC I and the new petitions.

    It is also worth highlighting that we have no special
insight into the petitions for review of the Final Denial Order
based on taking LULAC I en banc and then never reaching
the merits of the case. Even looking past LULAC I’s
jurisdictional defect, the EPA presented no argument on the
merits in LULAC I, which the three-judge panel took as “the
EPA [having] forfeited any merits-based argument,” and
“effectively conceding its lawlessness.” LULAC I, 899 F.3d
at 827–29. It is probably safe to assume the EPA will present
merits-based arguments in response to the petitions for
review of the Final Denial Order, which the proper
reviewing panel will need to consider.

    More important, even setting aside that the EPA
presented no merits-based arguments in LULAC I, the EPA’s
stated justifications for its Final Denial Order appear to
present different issues than the EPA’s stated justifications
for its Initial Denial Order. See LULAC’s Cross-Motion for
Leave to File Amended Petition, ECF No. 178 at 4
(conceding that the Final Denial Order “adds two new legal
arguments”). Even LULAC characterizes its petition for
review of the Final Denial Order as involving “new
arguments.” Id. at 5. Given that the EPA’s stated
justifications for the Final Denial Order are not substantially
the same as the EPA’s stated justifications for the Initial
Denial Order (review of which was neither properly
presented nor considered by the en banc panel), there is an
added reason why it is not proper to treat the new petitions
as comeback cases.

   To the extent that the majority construes our mandamus
order’s statement that we would “retain jurisdiction over this
and any related cases” as meaning that we would accept as
                   LULAC V. WHEELER                        11

comeback cases any future dispute between the parties over
chlorpyrifos, I respectfully disagree. At the time the order
to “retain jurisdiction” was entered, the sole dispute was
whether the three-judge panel had jurisdiction to review the
Initial Denial Order or to order a mandamus remedy. What
“jurisdiction” were we thus retaining by the quoted
statement? It was not jurisdiction over the merits of the
action, because neither the three-judge panel nor the en banc
panel had jurisdiction to review the merits of a petition for
review of an Initial (rather than Final) Denial Order. And
any retained jurisdiction over LULAC’s request for
mandamus relief was mooted when LULAC received that
relief by way of the EPA’s issuance of the Final Denial
Order.

    I submit that the only remaining retained jurisdiction was
jurisdiction to determine whether we did have jurisdiction,
which federal courts always have. See Special Invs. Inc. v.
Aero Air Inc., 360 F.3d 989, 992 (9th Cir. 2004). Any
retention of jurisdiction to decide improperly presented
issues, such as jurisdiction over the merits—and any
retention of jurisdiction over future petitions that do not
involve substantially the same issues—would thus have been
improvidently granted.

    From my perspective, given that a majority of the en
banc panel agrees to dismiss this case as moot, and that the
two petitions for review of the Final Denial Order (LULAC
II and New York) do not involve substantially the same issues
as were properly presented to the en banc panel in LULAC I,
we should decline to accept the new petitions as comeback
cases. The new petitions should be assigned to a random
three-judge panel through the normal process.

   This is all to say that I disagree with the majority’s
approach of treating jurisdictionally proper petitions for
12                 LULAC V. WHEELER

review of an EPA Final Denial Order as involving
substantially the same issues as a jurisdictionally baseless
petition for review of an EPA Initial Denial Order, especially
when the EPA’s justifications for the Final Denial Order
differ materially from the agency’s justifications for the
Initial Denial Order. As the majority agrees, the proper
course is for us to grant the EPA’s motion to dismiss this
case as moot and deny as moot (1) LULAC’s Cross-Motion
for Leave to File Amended Petition for Review, and
(2) Intervenors’ Cross Motion to Consolidate the Proceeding
with a Newly-Filed Petition. In my view, however, we
should decline to accept the petitions for review filed in
LULAC II and New York as “comeback cases,” and in turn
decline to decide any motions pending in those cases.
