                FOR PUBLICATION

  UNITED STATES COURT OF APPEALS
       FOR THE NINTH CIRCUIT


LEAGUE OF UNITED LATIN                No. 17-71636
AMERICAN CITIZENS; PESTICIDE
ACTION NETWORK NORTH AMERICA;
NATURAL RESOURCES DEFENSE               ORDER
COUNCIL; 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; UNITED FARM
WORKERS,
                       Petitioners,

STATE OF NEW YORK; STATE OF
MARYLAND; STATE OF VERMONT;
STATE OF WASHINGTON;
COMMONWEALTH OF
MASSACHUSETTS; DISTRICT OF
COLUMBIA; STATE OF CALIFORNIA;
STATE OF HAWAII,
                     Intervenors,
2                LULAC V. WHEELER

                v.

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


       On Petition for Review of an Order of the
          Environmental Protection Agency

    Argued and Submitted En Banc March 26, 2019
              San Francisco, California

                 Filed April 19, 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
                       LULAC V. WHEELER                                 3

                            SUMMARY*


     Mandamus / Environmental Protection Agency

     The en banc court construed the League of United Latin
American Citizens (LULAC)’s opening brief as a request for
mandamus relief, and granted the petition for a writ of
mandamus. The en banc court ordered the Environmental
Protection Agency to issue, no later than 90 days after the
filing of this order, a full and fair decision on LULAC’s
objections to an EPA order denying a 2007 petition to cancel
all tolerances for the pesticide chlorpyrifos, pursuant to
21 U.S.C. § 346a(g)(2)(C).


                             COUNSEL

Patti A. Goldman (argued), Marisa C. Ordonia, and Kristen
L. Boyles, Earthjustice, Seattle, Washington, for Petitioners.

Andrea Oser (argued), Deputy Solicitor General; Frederick A.
Brodie, Assistant Solicitor General of Counsel; Barbara D.
Underwood, Solicitor General; Office of the Attorney
General, Albany, New York;

Brian E. Frosh, Attorney General; Steven M. Sullivan,
Solicitor General; Office of the Attorney General, Baltimore,
Maryland; Thomas J. Donovan Jr., Attorney General;
Nicholas F. Persampieri, Assistant Attorney General; Office
of the Attorney General, Montpelier, Vermont; Robert W.

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

Ferguson, Attorney General; William R. Sherman, Counsel
for Environmental Protection; Attorney General’s Office,
Seattle, Washington; Maura Healey, Attorney General; I.
Andrew Goldberg, Assistant Attorney General;
Environmental Protection Division, Office of the Attorney
General, Boston, Massachusetts; Karl A. Racine, Attorney
General; Brian R. Caldwell, Assistant Attorney General;
Office of the Attorney General, Washington, D.C.; Xavier
Becerra, Attorney General; Susan S. Fiering, Supervising
Deputy Attorney General; Reed Sato, Deputy Attorney
General; Office of the Attorney General, Sacramento,
California; Russell A. Suzuki, Acting Attorney General;
Wade H. Hargrove III, Deputy Attorney General; Ewan C.
Rayner, Deputy Solicitor General; Department of the
Attorney General, Honolulu, Hawaii; for Intervenors.

Jonathan Brightbill, Deputy Assistant Attorney General;
Erica M. Zilioli, and Phillip R. Dupré, Attorneys; Jeffrey H.
Wood, Acting Assistant Attorney General; Environment and
Natural Resources Division, United States Department of
Justice, Washington, D.C.; Mark Dyner, Office of the
General Counsel, United States Environmental Protection
Agency, Washington, D.C.; for Respondents.

Donald C. McLean, Sylvia G. Costelloe, Kathleen R.
Heilman, and Stanley H. Abramson, Arent Fox LLP,
Washington, D.C.; Christopher Landau P.C. and Archith
Ramkumar, Quinn Emanuel Urquhart & Sullivan LLP,
Washington, D.C.; for Amicus Curiae Dow Agrosciences
LLC.

Susan J. Kraham and Edward Lloyd, Attorneys; Tess
Dernbach, and Laura Keeley, Legal Interns; Morningside
Heights Legal Services, Columbia Environmental Clinic,
                  LULAC V. WHEELER                      5

New York, New York, for Amicus Curiae Congressman
Henry Waxman.

Shaun A. Goho, Emmett Environmental Law & Policy Clinic,
Harvard Law School, Cambridge, Massachusetts, for Amici
Curiae Health Professional Organizations.

David Y. Chung, Elizabeth B. Dawson, and Kristen L.
Nathanson, Crowell & Moring LLP, Washington, D.C., for
Amici Curiae Agribusiness Council of Indiana, Agricultural
Retailers Association, Almond Alliance of California,
American Farm Bureau Federation, AmericanHort, American
Seed Trade Association, American Soybean Association,
American Sugarbeet Growers Association, Beet Sugar
Development Foundation, California Alfalfa & Forage
Association, California Citrus Mutual, California Cotton
Ginners and Growers Association, California Fresh Fruit
Association, California Specialty Crops Council, Cranberry
Institute, Minnesota Soybean Growers Association, National
Agricultural Aviation Association, National Association of
Wheat Growers, National Corn Growers Association,
National Cotton Council, National Sorghum Producers,
Northwest Horticultural Council, Oregonians for Food &
Shelter, Washington Friends of Farms & Forests, Western
Agricultural Processors Association, Western Growers,
Western Plant Health Association, and Wyoming Agricultural
Business Association.

Kathryn E. Szmuszkovicz and Andrew C. Stilton, Beveridge
& Diamond P.C., Washington, D.C.; Doreen Manchester,
Deputy General Counsel; Rachel Lattimore, Sr. Vice
President & General Counsel; CropLife America,
Washington, D.C.; for Amicus Curiae CropLife America.
6                     LULAC V. WHEELER

                              ORDER

    In its opening brief, the League of United Latin American
Citizens (LULAC)1 requested, as alternative relief, the
issuance of a Writ of Mandamus. The Environmental
Protection Agency (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. In view
of the circumstances presented by the petition, we exercise
our discretion to construe the opening brief as a request for
mandamus relief. See Pub. Utils. Comm’n v. FERC, 814 F.2d
560, 562 (9th Cir. 1987) (construing premature petition for
review as request for mandamus relief).

    Considering the history and chronology of this matter and
the nature of the claims, we conclude mandamus is
appropriate, and we hereby GRANT the Petition for a Writ
of Mandamus. See Telecommunications Research & Action
Center v. FCC, 750 F.2d 70, 79–80 (D.C. Cir. 1984) (laying
out criteria for mandamus relief); see also In re PANNA,
798 F.3d 809, 813–14 (9th Cir. 2015) (applying the “TRAC
factors” in earlier litigation related to this case).

    At oral argument, EPA represented that it could issue a
final decision with respect to petitioners’ objections within
90 days of an order issued by this court. EPA is hereby
ordered to issue, no later than 90 days after the filing of this
order, a full and final decision on LULAC’s objections
pursuant to 21 U.S.C. § 346a(g)(2)(C). Given this resolution,
we need not–and do not–decide any other issue urged by the



     1
       Throughout this order, LULAC also refers to the Intervenors, and
the remedy granted is equally applicable to the Intervenors.
                    LULAC V. WHEELER                        7

parties. The en banc court shall retain jurisdiction over this
and any related cases.

   PETITION GRANTED.
