UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA

__________________________________________ ) RECKITT BENCKISER, INC. ) ) Plaintiff, ) ) v. ) Civil Action No. 09-445 (ESH) ) LISA P. JACKSON, ) ADMINISTRATOR, UNITED STATES ) ENVIRONMENTAL PROTECTION ) AGENCY, ET AL., ) ) Defendants. ) __________________________________________)

MEMORANDUM OPINION

Plaintiff Reckitt Benckiser, Inc. (“Reckitt”), a manufacturer of consumer-use

rodenticides, brings this action against the United States Environmental Protection Agency

(“EPA”) and Lisa P. Jackson, the EPA’s Administrator, to challenge the EPA’s failure to initiate

cancellations proceedings against certain Reckitt products under the Federal Insecticide,

Fungicide and Rodenticide Act (“FIFRA”),

et seq. Reckitt alleges that the EPA

should have commenced such proceedings once the EPA determined, under Section 4 of FIFRA,

7 U.S.C. § 136a-1, that those products would not be eligible for reregistration. Reckitt seeks an

order directing the EPA to commence such proceedings and enjoining the EPA from taking any

enforcement action against Reckitt prior to their completion. Defendants have moved to dismiss

for lack of subject matter jurisdiction, see Fed. R. Civ. P. 12(b)(1), and for failure to state a

claim. See Fed. R. Civ. P. 12(b)(6). For the reasons stated herein, the Court will grant the

motion to dismiss. BACKGROUND

I. FIFRA’S STATUTORY FRAMEWORK

A. Registration (7 U.S.C. § 136a)

FIFRA requires that all pesticide products sold or distributed in the United States be

registered with the EPA. 7 U.S.C. § 136a(1). The EPA is directed to approve the registration of

a pesticide if “(A) its composition is such as to warrant the proposed claims for it; (B) its labeling

and other material required to be submitted comply with the requirements of this subchapter; (C)

it will perform its intended function without unreasonable adverse effects on the environment;

and (D) when used in accordance with widespread and commonly recognized practice it will not

generally cause unreasonable adverse effects on the environment.” 7 U.S.C. § 136a(c)(5).

B. Cancellation of Registered Pesticides (7 U.S.C. § 136d)

FIFRA also provides for the “cancellation” or “change in classification” of registered

pesticides under certain circumstances. 7 U.S.C. § 136d. Specifically, it provides that:

If it appears to the Administrator that a pesticide or its labeling or other material required to be submitted does not comply with the provisions of this subchapter or, when used in accordance with widespread and commonly recognized practice, generally causes unreasonable adverse effects on the environment, the Administrator may issue a notice of the Administrator’s intent either--

(1) to cancel its registration or to change its classification together with the reasons (including the factual basis) for the Administrator’s action, or

(2) to hold a hearing to determine whether or not its registration should be canceled or its classification changed.

Such notice shall be sent to the registrant and made public. . . . The proposed action shall become final and effective at the end of 30 days from receipt by the registrant, or publication, of a notice issued under paragraph (1), whichever occurs later, unless within that time either (i) the registrant makes the necessary

2 corrections, if possible, or (ii) a request for a hearing is made by a person adversely affected by the notice. In the event a hearing is held pursuant to such a request or to the Administrator’s determination under paragraph (2), a decision pertaining to registration or classification issued after completion of such hearing shall be final. In taking any final action under this subsection, the Administrator shall consider restricting a pesticide’s use or uses as an alternative to cancellation and shall fully explain the reasons for these restrictions, and shall include among those factors to be taken into account the impact of such final action on production and prices of agricultural commodities, retail food prices, and otherwise on the agricultural economy, and the Administrator shall publish in the Federal Register an analysis of such impact.

7 U.S.C. § 136d.

C. Reregistration Review Process (7 U.S.C. § 136a-1)

FIFRA also requires the EPA to determine whether a registered pesticide will be eligible

for reregistration. See 7 U.S.C. § 136a-1. Section 136a-1 establishes a five-phase process for

reregistration of a registered pesticide. 7 U.S.C. § 136a-1(b)-(g). The fifth phase, subsection

(g),1 “includes the review by the Administrator . . . of data submitted for reregistration and

appropriate regulatory action by the Administrator.” Id. § 136a-1(b). If the pesticide continues

to meet the requirements of 7 U.S.C. § 136a(c)(5) (the requirements for registration), then the

pesticide is eligible to be reregistered, and the EPA is directed to reregister it. Id. § 136a-

1(g)(2)(C). If the EPA determines that a pesticide is not eligible for reregistration, subsection

(g) provides that “the Administrator shall take appropriate regulatory action . . . as expeditiously

as possible.” 7 U.S.C. § 136a-1(g)(2)(D).

II. FACTUAL BACKGROUND

A. EPA’s Risk Mitigation Decision for Ten Rodenticides

1 The first four phases of the reregistration process, subsections 136(c)-(f), are not relevant to this case.

3 Since the 1990s, as part of the reregistration process under FIFRA, the EPA has been

reviewing the safety and efficacy of various rodenticide products. (Compl. ¶ 22.) On May 28,

2008, it issued a “Risk Mitigation Decision for Ten Rodenticides” (“RMD”). (Id., Ex. 1.) The

RMD concludes that currently registered products containing any of ten identified rodenticides

are not eligible for reregistration unless the registrant implements certain “risk mitigation

measures.” (Id., Ex. 1, at 25.)

On June 18, 2008, the EPA sent a letter to manufacturers whose registered products

contained any of the ten rodenticides covered by the RMD. (Id., Ex. 2, at 1.) In the letter, the

EPA advised registrants that “all products that do not currently comply with the new

requirements must either be amended or cancelled.” (Id., Ex. 2, at 2.) Registrants were directed

to respond to the EPA by September 2, 2008 (the “90-day response”), “declaring an intent to

comply or not comply with the risk mitigation measures” in the RMD. (Id., Ex. 2, at 2-3.)

Registrants who intended to comply with the RMD were given until December 4, 2009, to

submit applications to file amendment applications. (Id.) Registrants who did not intend to

comply were directed to “submit a request for voluntary cancellation” along with their 90-day

response. (Id.) The RMD set June 4, 2011, as the date by which any voluntary cancellation

“must be effective” and as the “last day for registrants to ‘release for shipment’ (sell or distribute)

rodenticide products not complying with the May 2008 [RMD].” (Id.) After that date, the EPA

advised that “rodenticide products that do not comply with the [RMD] . . . would be considered

misbranded.” (Id., Ex. 2, at 2.)

The EPA’s letter also advised registrants that “failure to make such a voluntary

cancellation request will result in additional regulatory action.” (Id., Ex. 2, at 4.) Specifically,

4 the EPA told registrants that it “will review the 90-Day Responses, and will initiate cancellation

actions against products for which it does not receive notification of the registrant’s intent to

comply with the risk mitigation measures.” (Id., Ex. 2, at 5.)

B. Reckitt’s Rodenticides

By letter dated August 28, 2008, Reckitt submitted its “90-Day Response” to the RMD.

(Id., Ex. 4.) Reckitt stated therein its “intent not to comply with the Risk Mitigation Decision.”

Attached to its letter was the 90-Day Response Form that had been provided by the EPA. For

each of its affected registered products (thirteen in all), Reckitt checked the box marked “I do not

intend to voluntarily bring this product into compliance with the requirements of the May 2008

risk mitigation decision. I understand that EPA may pursue additional regulatory action,

including cancellation.” (Id., Ex. 4, at 2-4.)

On November 21, 2008, Reckitt’s counsel sent a letter to the EPA referencing an

upcoming meeting scheduled between the EPA and Reckitt. (Id., Ex. 5). In the letter, Reckitt

states its belief that “the first order of business during our meeting should be to discuss how EPA

and Reckitt Benckiser can expeditiously commence the administrative process, including when

EPA expects to issue a Notice of Intent to Cancel the registrations for Reckitt Benckiser’s

rodenticide products that are affected by the RMD.” (Id.) On January 9, 2009, Reckitt’s counsel

sent a second letter to the EPA to “confirm parts of our discussion” at the December 3, 2008,

meeting. (Id., Ex. 6, at 1.) According to that letter, at the December 3, 2008, meeting, Reckitt

had requested that the EPA “expeditiously commence the administrative process,” but was

“advised” that the EPA “could not provide a specific timeframe within which it would

commence the administrative process. (Id.) On February 3, February 26, and March 5, 2009, the

5 EPA orally confirmed to Reckitt’s counsel that EPA had no plans to initiate cancellation

proceedings. (Compl. ¶ 53.)

III. PROCEDURAL HISTORY

On March 6, 2009, Reckitt filed the pending action to challenge the EPA’s refusal to

commence cancellation proceedings for Reckitt’s affected products and to obtain an order

requiring the EPA to commence such proceedings. Reckitt contends that it is entitled to relief

under FIFRA (Count I), the Adminstrative Procedures Act (“APA”) (Count II), and/or the

Mandamus Act (Count III). Defendants have moved to dismiss plaintiff’s FIFRA and APA

claims for lack of subject matter jurisdiction and its mandamus claim for failure to state a claim.

See Fed. R. Civ. P. 12(b)(1) & (6). For the following reasons, the Court will grant defendants’

motion to dismiss.

ANALYSIS

I. SUBJECT MATTER JURISDICTION

A. Legal Standard

On a motion to dismiss for lack of subject matter jurisdiction pursuant to Rule 12(b)(1),

plaintiff bears the burden of establishing by a preponderance of the evidence that the court has

subject matter jurisdiction. See Lujan v. Defenders of Wildlife,

(1992). A

court must accept as true all factual allegations in the complaint and give plaintiff the benefit of

all reasonable inferences from the facts alleged. Sparrow v. United Air Lines, Inc.,

(D.C. Cir. 2000). A court may dismiss a complaint for lack of subject matter

jurisdiction only if “it appears beyond doubt that the plaintiff can prove no set of facts in support

of his claim which would entitle him to relief.” Richardson v. United States,

, 549

6 (D.C.Cir. 1999) (quoting Caribbean Broad. Sys., Ltd. v. Cable & Wireless PLC,

(D.C.Cir. 1998)).

B. FIFRA

Defendants first argue that plaintiff’s FIFRA claim must be dismissed for lack of subject

matter jurisdiction because, to the extent plaintiff has a reviewable claim, the judicial review

provision within the reregistration section of FIFRA, 7 U.S.C. 136a-1(m), gives exclusive

jurisdiction to the court of appeals. Plaintiff responds that the general provisions for judicial

review under FIFRA, 7 U.S.C. § 136n, apply, and that under those provisions, its claim belongs

in the district court. Which of these jurisdictional provisions applies to a claim such as

plaintiff’s appears to be a matter of first impression. As explained herein, the Court agrees with

the defendant that section 136a-1(m) applies and that the court of appeals, therefore, has

exclusive jurisdiction over plaintiff’s claim.

1. FIFRA’s Jurisdictional Provisions

a. 7 U.S.C § 136n

The general framework for judicial review of agency action under FIFRA provides for

district court review under certain circumstances and review by the court of appeals in others.

See 7 U.S.C. § 136n(a) & (b). Section 136n(a) defines the parameters of district court review:

Except as otherwise provided in this subchapter, the refusal of the Administrator 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 judicially reviewable by the district courts of the United States.

Id. § 136n(a). Section 136n(b), entitled “[r]eview by the court of appeals,” provides that:

In the case of actual controversy as to the validity of any order issued by the

7 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 exclusive jurisdiction to affirm or set aside the order complained of in whole or in part. . . .

Id. § 136n(b).

b. 7 U.S.C. § 136a-1(m)

As described above, FIFRA section 136a-1 establishes certain procedures that the EPA

must follow before it reregisters a pesticide. See 7 U.S.C. § 136a-1(b)-(g). Within that section,

subsection 136a-1(m), entitled “Judicial review,” provides that “Any failure of the Administrator

to take any action required by this section shall be subject to judicial review under the procedures

prescribed by section 136n(b) of this title.” 7 U.S.C. § 136a-1(m) (emphasis added). Section

136n(b), see supra, is the subsection within the general jurisdictional section pertaining to review

by an appellate court.

2. Section 136a-1(m) Applies

Defendants’ argument that section 136a-1(m) applies starts from the premise that a

cancellation proceeding under 7 U.S.C. § 136d is “only one of several ‘appropriate regulatory

action[s]’ that EPA may choose from in phase 5 of the reregistration process once the Agency

determines that a pesticide should not be reregistered.” (Defs. Mem. in Support of Mot. to

Dismiss at 13 (quoting 7 U.S.C. § 136a-1(g)(2)(D)). Thus, they argue, plaintiff’s claim that the

EPA should have initiated cancellation proceedings against Reckitt’s products is in essence a

claim that the EPA has failed “to take appropriate regulatory action . . . as expeditiously as

possible,” as required by the fifth phase of the reregistration process. See

8 136a-1(g)(2)(D). As section 136a-1(m) commits the review of any claim concerning the “failure

of the Administrator to take any action required by [section 136a-1]” to the court of appeals, 7

U.S.C. § 136a-1(m) (emphasis added), defendants contend that the “plain language” of the statute

establishes that it applies to a claim that the EPA failed to take appropriate regulatory action

under section 136a-1(g)(2)(D).

Plaintiff starts from a different premise. It takes the position that “once the collection

and review of data are completed, and once a decision is reached as to which products qualify for

reregistration, then the [section 136a-1] phases have been completed.” (Pl. Mem. at 30.)

Relying on this premise, plaintiff asserts that its challenge to the EPA’s failure to initiate

cancellation proceedings is solely a claim that the EPA has failed to take action required by

section 136d, independent of and completely separable from the EPA’s duty to carry out

reregistration reviews under section 136a-1. Accordingly, plaintiffs contend that section 136a-

1(m) simply does not apply to its claim. Plaintiff contends that its interpretation of section 136a-

1(m) “makes sense” because “Congress placed EPA on a tight schedule” for reregistration

reviews, making the expedited review provided for by section 136a-1(m) necessary in cases

where plaintiffs are alleging “a delay . . . . under the various deadlines established by Congress.”

Given the parties’ positions, the Court must first decide whether the EPA’s failure to

initiate cancellations proceedings against plaintiff’s products is a failure to take “appropriate

regulatory action” as required by section 136a-1(g)(2)(D). If it is, as defendants argue, then

section 136a-1 applies and the court of appeals has exclusive jurisdiction of plaintiff’s claim. If

it is not, as plaintiff argues, section 136a-1 does not apply and whether subject matter jurisdiction

exists must be determined with reference to the general jurisdictional provisions in section 136n.

9 “In matters of statutory construction, the text is [the court’s] primary guide.” See Mayer

Brown LLP v. I.R.S.,

(D.C. Cir. 2009) (citing Sierra Club v. EPA,

(D.C.Cir. 2008)). Here, the text supports the defendant’s position that the failure to initiate

cancellation proceedings is a failure to take appropriate regulatory action under section 136a-

1(g)(2)(D). Section 136a-1(g) describes what the EPA is required to do as part of phase five of

the reregistration review. It provides that once the EPA determines that a pesticide is not eligible

to be reregistered, it “shall take appropriate regulatory action . . . as expeditiously as possible.” 7

U.S.C. § 136a-1(g)(2)(D)(2)(D); see also 7 U.S.C. § 136a-1(b) (describing subsection (g) as

“includ[ing] the review by the Administrator . . . of data submitted for reregistration and

appropriate regulatory action by the Administrator.”). Thus, the plain language of the statute

expressly includes “appropriate regulatory action” as part of phase five. Moreover, “[i]t is [a

court's] duty to give effect, if possible, to every clause and word of a statute.” Sierra Club,

(quoting United States v. Menasche,

(1955)). Plaintiff’s

suggestion that all of the actions “required by” section 136a-1 are completed once the EPA has

completed its review and made its determination as to a pesticide’s eligibility for reregistration

would read the requirement to take appropriate regulatory action out of the statute entirely.

In addition, although the term “appropriate regulatory action” is not defined in FIFRA,

the legislative history of the statute supports defendant’s contention that “appropriate regulatory

action” includes initiating a cancellation proceeding. In describing the purpose and effect of

amending FIFRA to add section 136a-1, the House Report states that:

Following completion of the required independent review by the Administrator of registrants’ submissions of data and information under the reregistration program, the Administrator must reregister the pesticide products or promptly take other

10 appropriate regulatory action under FIFRA, such as canceling, suspending, or restricting the pesticide, or imposing label changes.”

H.R. Rep. 100-939, 1988 U.S.C.C.A.N. 3474,

(1988) (emphasis added).

Accordingly, the Court concludes that an allegation that the EPA has violated FIFRA by failing

to initiate a cancellation proceeding following a determination that a pesticide is ineligible for

reregistration is an allegation that the EPA has failed to take appropriate regulatory action under

section 136a-1(g)(2)(D). As section 136a-1(m) states that judicial review lies in the court of

appeals over “Any failure of the Administrator to take any action required by [section 136a-1],”

7 U.S.C. § 136a-1(m) (emphasis added), it necessarily follows that this Court lacks subject

matter jurisdiction over plaintiff’s claim. Accordingly, plaintiff’s FIFRA claim will be dismissed

for lack of subject matter jurisdiction.2

3. Other Grounds for Dismissal

Having concluded that plaintiff’s FIFRA claim must be dismissed because jurisdiction

lies with the Circuit Court, it is not necessary to address the EPA’s alternative arguments for

dismissal: (1) that the EPA’s failure to initiate cancellation proceedings is an unreviewable

discretionary act; and/or (2) that plaintiff’s claim is not ripe for review because the EPA has

taken no final agency action with regard to plaintiff’s decision not to adopt the risk mitigation

measures described in the RMD.

C. APA Claim

The plaintiff’s APA claim will also be dismissed for lack of jurisdiction because, as

plaintiff concedes, the APA does not provide a court with jurisdiction but rather “is read as a part

2 Plaintiff does not suggest that if section 136a-1(m) applies its application could be overridden by the general jurisdictional provisions in section 136n.

11 of FIFRA and provides the contour of the court’s review.” (Pl. Mem. at 36 (internal quotations

omitted).)

II. MANDAMUS

The extraordinary writ of mandamus is available “to compel an officer or employee of the

United States or any agency thereof to perform a duty owed to the plaintiff.”

.

The writ of mandamus is “a drastic and extraordinary remedy reserved for really extraordinary

causes.” Cheney v. United States Dist. Court,

(2004) (internal quotations and

citation omitted); accord Allied Chem. Corp. v. Daiflon, Inc.,

(1980). Mandamus

relief is available only if “(1) the plaintiff has a clear right to relief; (2) the defendant has a clear

duty to act; and (3) there is no other adequate remedy available to the plaintiff.” In re Medicare

Reimbursement Litig.,

(D.C.Cir. 2005) (citations omitted). The duty to be

compelled must be nondiscretionary. Pittston Coal Group v. Sebben,

(1988).

Moreover, a writ of mandamus may issue only where “the duty to be performed is ministerial and

the obligation to act peremptory, and clearly defined. The law must not only authorize the

demanded action, but require it; the duty must be clear and undisputable.” Shoshone Bannock

Tribes v. Reno,

(D.C.Cir. 1995).

Reckitt has not established a right to mandamus. At this point, it is far from “clear” that

it has a right to relief or that the defendant has a duty to act. And it is the Circuit Court, not this

Court, that has jurisdiction to make those determinations. Moreover, plaintiff cannot establish

that there is “no other adequate remedy available” as it has not yet sought relief from the Circuit

Court. Accordingly, plaintiff’s mandamus claim will be dismissed.

12 CONCLUSION

For the foregoing reasons, the Court will GRANT defendants’ motion to dismiss.

Plaintiff’s complaint is dismissed with prejudice. A separate Order accompanies this

Memorandum Opinion.

/s/ ELLEN SEGAL HUVELLE United States District Judge

Date: October 30, 2009

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