This week at the Ninth: Flea Collars and Milkers | Morrison & Foerster LLP – Left Coast Complaints


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


The court finds that the EPA’s denial of a request to delete the pesticide registration was not supported by substantive evidence and could not be justified by ex post rationalizations.

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

key highlight: “At times, NRDC’s efforts to get a reasoned response from the EPA seemed like Sisyphus as the agency kept delaying its decision. After NRDC doggedly pursued this matter for more than a dozen years. . . NRDC was entitled to expect a rational, supported and reasoned response from EPA. However, the EPA did not make 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 are required by law to be registered with the EPA, which last approved the use of TCVP in pet products in 2006. TCVP in pet products could be transmitted to humans and pose a health risk to young children. EPA initially denied NRDC’s request in 2014, but later requested voluntary pre-trial detention pending a new risk assessment.

The EPA issued revised risk assessments in 2016 and 2020. Both risk assessments concluded that exposure to TCVP from pet products poses significant health risks to young children, but the EPA continued to delay responding to NRDC. Finally, only after the Ninth Circuit Circuit issued a mandate requesting EPA to respond did EPA again deny the NRDC’s petition. The EPA based its decision on the 2020 risk assessment and two studies (the Torsion Study and the Normal Wear Study) by Hartz Mountain Corporation — a maker of TCVP pet collars. NRDC challenged the EPA’s rejection of the petition.

result: The Ninth Circuit overturned EPA’s rejection of NRDC’s petition and referred the agency to issue a revised response within 120 days. The court ruled that EPA’s decision was not supported by substantial evidence. First, the panel focused on the amount of TCVP dust released from pet collars. The panel highlighted the EPA’s selective use of the torsion study, which “resulted in the EPA’s estimate of how much TCVP dust was released from the collars being significantly lowered.” The panel also noted that EPA rejected a key finding of the torsion study without any explanation. EPA later attempted to justify that decision in its briefing, but the Ninth Circuit Court clarified that it “can only uphold the agency’s actions based on the reasons given by the agency for its decision.”

Second, the panel considered the EPA’s assumption that pet owners would shorten pet collars by 20 percent by placing the collars around pets’ necks. In theory, this could result in lower TCVP exposure. The EPA based this assumption on a third Hartz study — the “Efficiency Study” — in which researchers shortened dog collars when they were put on the neck. However, the EPA did not provide a rationale for applying the results of this study to consumer behavior. In fact, the EPA made the opposite assumption in its 2016 risk assessment. The panel noted that EPA’s deviation from its previous guidance “for no apparent reason” could not justify EPA’s response to the NRDC’s petition.


The court notes that plaintiffs allegedly enticed and coerced into performing manual rather than professional labor could assert their state claims for forced labor.

The panel: Judges Berzon, Collins and Choe-Groves (Intl. Trade), with Judge Collins preparing the Opinion.

Main highlight: “Funk Dairy’s abuse of the TN visa program placed the plaintiffs in a bait-and-switch situation in which the plaintiffs traveled from Mexico to Idaho with a series of work expectations, only to be summoned upon arrival, a significant one volume of menial work to be done. In practice, it was to be expected that the resulting situation would put significant pressure on the plaintiffs to join in the provision of labor that differed greatly from what they had agreed and expected.”

Background: Funk Dairy and its manager, Curtis Giles, used the TN Visa program, established under the North American Free Trade Agreement, to provide qualified professional activity visas to recruit applicants,6 Mexican nationals, as scientists. When the plaintiffs arrived at the dairy, they were surprised to find that much of the work expected of them was unskilled manual labor. During their employment, Giles made references to their possible deportation if they stopped working at Funk Dairy.

The plaintiffs filed a lawsuit alleging that the defendants violated federal prohibitions on forced labor and human trafficking. They also asserted claims by the State of Idaho. The district court granted the defendants’ motion for summary judgment on the federal claims and then declined to exercise supplementary jurisdiction over the claims under state law.

Result: The ninth circuit reversed itself. As the court explained, the plaintiffs’ federal complaints centered on whether they had found infringement of 18 USC § 1589, which prohibits “knowingly” obtaining labor service through certain types of coercion. The Ninth Circuit plaintiffs held that they had raised a valid factual question as to whether Funk Dairy had secured its labor through “abuse or threatened abuse of any statute or legal process” within the meaning of section 1589.

Here, the court argued, a jury could conclude that Funk Dairy had used the TN Visa program for a purpose it was not designed for — namely, to obtain a non-professional, non-professional workforce. The court emphasized that Funk Dairy had filed letters with immigration authorities alleging that the plaintiffs would perform various academic jobs requiring a bachelor’s degree, when in fact Funk’s internal employment records listed plaintiffs with occupations such as “milker.” . The court concluded that a jury could also find that Funk Dairy had misused the program in this way to pressure plaintiffs to provide a different labor force than what they had agreed to, given the apparent ” Bait and Switch” by the defendants and their threats of deportation (some of which misrepresented the applicable law). And, the court continued, there is evidence that this pressure led the plaintiffs to provide non-professional labor, dismissing the defendants’ arguments that the fact that the plaintiffs were free to leave the company (and eventually to cancel), have broken the causal chain. Eventually, the court concluded that given this evidence showing defendants’ abuse of the TN Visa program and pressure on plaintiffs, a jury could also find that the defendants “exploited the coercive pressure and its effects on the worker.” intended” as required to meet the requirements of the law real requirement.

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