This week at The Ninth: flea collars and milkers | Morrison & Foerster LLP – Left Coast Appeals


This week, the court orders the EPA to reconsider its approval of a pesticide used in pet collars and addresses federal law banning forced labor.


The Court finds that the EPA’s denial of a request to deregister the pesticides was not supported by substantial evidence and could not be justified by post hoc rationalizations.

The panel: Chief Justice Murguia, Justice Cole (CA6) and Justice Gould, with Justice Gould writing the opinion.

Climax“At times, NRDC’s efforts to receive a reasoned response from the EPA have felt Sisyphian, as the agency has consistently delayed its decision. After the NRDC stubbornly pursued this case for more than a dozen years. . . The NRDC was justified in expecting a rational, substantiated and reasoned response from the EPA. The EPA, however, did not provide a well-reasoned or reasonable decision.

Background: Tetrachlorvinphos (TCVP) is a pesticide used in pet collars to prevent fleas and ticks. Pesticides sold in the United States must legally be registered with the EPA, which last approved the use of TCVP in pet products in 2006. In 2009, the Natural Resources Defense Council ( NRDC) has asked the EPA to deregister TCVP on the grounds that TCVP in pet products could be transmitted to humans and pose a health risk to young children. The EPA initially denied the NRDC’s petition in 2014, but later requested a voluntary referral pending a new risk assessment.

The EPA published revised risk assessments in 2016 and 2020. Both risk assessments found that exposure to TCVP through pet products posed considerable health risks to young children, but the EPA continued to delay its response to the NRDC. Finally, only after the Ninth Circuit issued a mandamus ordering the EPA to respond, did the EPA again deny the NRDC’s petition. The EPA based its decision on the 2020 risk assessment, as well as two studies (“torsion study” and “normal wear study”) from Hartz Mountain Corporation, a manufacturer of TCVP pet collars. . The NRDC challenged the EPA’s denial of the petition.

Result: The Ninth Circuit reversed the EPA’s denial of the NRDC’s petition and directed the agency to issue a revised response within 120 days. The Court found that the EPA’s decision was not supported by substantial evidence. First, the panel focused on the amount of TCVP dust released by pet collars. The panel pointed to the EPA’s selective use of the torsion study, which “had the effect of significantly lowering the EPA’s estimate of the amount of TCVP dust released from the collars.” The panel further noted that the EPA rejected a central finding of the torsion study without any explanation. The EPA later attempted to justify the decision in its briefing, but the Ninth Circuit made it clear that it “can only sustain the agency’s action based on the reasons the agency has given for its decision. “.

Second, the panel addressed the EPA’s hypothesis that pet owners reduce collars by 20% when fitting collars to pets’ necks. In theory, this could lead to less exposure to TCVP. The EPA based this assumption on a third Hartz study — the “Efficacy Study” — where researchers cut the dog collars as they fitted them to the neck. Yet the EPA has provided no rationale for applying the results of this study to consumer behavior. And in fact, EPA made the opposite assumption in its 2016 risk assessment. the EPA at the request of the NRDC.


The Court finds that plaintiffs who were allegedly deceived and coerced into performing manual rather than professional labor could pursue their federal forced labor claims.

The panel: Berzon, Collins and Choe-Groves JJ. (international trade), Judge Collins writing the opinion.

Climax : “Funk Dairy’s abuse of the TN Visa program placed applicants in a bait and switch situation in which applicants traveled from Mexico to Idaho with a set of work expectations, only to be met upon arrival to perform a substantial amount of menial work. In practice, one would expect the resulting situation to exert, and has exerted, substantial pressure on claimants to agree to supply very different labor from what they had agreed and what they expected to accomplish. »

Background: Funk Dairy and its manager Curtis Giles used the “TN Visa” program – established under the North American Free Trade Agreement to provide visas for qualifying professional work – to recruit plaintiffs6, Mexican citizens, in as scientists. When the complainants arrived at the dairy, they were surprised to find that much of the work they were expected to do was unskilled manual labour. During their employment, Giles made reference to their possible expulsion if they stopped working at Funk Dairy.

The plaintiffs filed suit, alleging that the defendants violated federal prohibitions on forced labor and trafficking. They also alleged Idaho state law claims. The district court granted the defendants’ motion for summary judgment on the federal claims, then declined to exercise additional jurisdiction over the state law claims.

Result: The ninth circuit reversed. As the Court explained, the plaintiffs’ federal claims focused on whether they had established a breach of 18 USC § 1589, which prohibits “knowingly” obtaining labor services through specified types of coercion. The Ninth Circuit ruled that the plaintiffs raised a justifiable issue of fact as to whether Funk Dairy obtained their work by “abuse or threat of abuse of law or judicial process” within the meaning of Section 1589. .

Here, the Court held that a jury could find that Funk Dairy used the TN Visa program for a purpose for which it was not designed, namely, to obtain non-professional rather than professional labor. The Court pointed out that Funk Dairy had submitted letters to immigration authorities claiming that the plaintiffs would perform various scientific tasks requiring a bachelor’s degree, when in fact, Funk’s internal employment records indicated that the plaintiffs had occupations such as “Milker”. The Court found that a jury could also find that the Funk Dairy had abused the program in this way to “pressure” plaintiffs into providing different labor than they had agreed to, given the defendants’ apparent “bait-and-switch” and their threats of deportation (some of which misrepresented applicable law). And, the Court continued, there was evidence that this pressure caused the plaintiffs to provide unprofessional labor – dismissing the defendants’ arguments that the fact that the plaintiffs were free to leave (and ultimately resigned) broke the chain of causation. Finally, the Court found that, given this evidence showing defendants’ abuse of the TN Visa program and coercion of plaintiffs, a jury could also conclude that defendants “intended coercive pressure and of its effects on the employee”, as required to satisfy the mens of the law. real requirement.

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