Keeping Tabs on the Ninth Circuit
April 22, 2022 - This Week at the Ninth

This Week at The Ninth: Flea Collars and Milkers

This Week at The Ninth: Flea Collars and Milkers

This week, the Court orders the EPA to reexamine its approval of a pesticide used in pet collars, and addresses the federal statute prohibiting forced labor.


The Court holds that EPA denial of a petition to cancel pesticide registration was not supported by substantial evidence and could not be justified by post-hoc rationalizations.

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

Key Highlight: “At times, NRDC’s efforts to receive a reasoned response from EPA have seemed Sisyphean as the agency consistently delayed its decision. After NRDC had doggedly pursued this matter for more than a dozen years . . . NRDC was justified in expecting a rational, supported, and reasoned response from EPA. EPA, though, 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 are statutorily required to 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) petitioned EPA to cancel TCVP’s registration on the basis that TCVP in pet products could transfer to humans and pose a health risk to young children. EPA initially denied NRDC’s petition in 2014, but later filed for voluntary remand pending a new risk assessment.

EPA issued revised risk assessments in 2016 and 2020. Both risk assessments found that TCVP exposure from pet products posed considerable health risks for young children, but EPA continued to delay in responding to NRDC. Finally, only after the Ninth Circuit issued mandamus ordering EPA to respond, EPA again denied NRDC’s petition. EPA based its decision on the 2020 Risk Assessment, as well as two studies (“Torsion Study” and “Normal Wear Study”) by Hartz Mountain Corporation—a manufacturer of TCVP pet collars. NRDC challenged EPA’s denial of the petition.

Result: The Ninth Circuit vacated EPA’s denial of NRDC’s petition and remanded to the agency to issue a revised response within 120 days. The Court held that 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 highlighted EPA’s selective use of the Torsion Study, which “had the effect of significantly lowering EPA’s estimate of how much TCVP dust was released by the collars.” The panel further noted that EPA rejected a central finding of the Torsion Study without any explanation. EPA later attempted to justify that decision in its briefing, but the Ninth Circuit made clear that it “can only uphold agency action based on the reasons the agency gave for its decision.”

Second, the panel addressed EPA’s assumption that pet owners would trim pet collars by 20 percent when fitting the collars to pets’ necks. In theory, that could result in less TCVP exposure. EPA based this assumption on a third Hartz study—the “Efficiency Study”—where researchers trimmed dog collars when fitting them to necks. Yet EPA 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 panel held that EPA’s departure from its previous guidance “without a discernable rationale” cannot justify EPA’s response to NRDC’s petition.


The Court holds that plaintiffs allegedly tricked and coerced into providing manual, rather than professional, labor could pursue their federal claims for forced labor.

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

Key highlight: “Funk Dairy’s abuse of the TN Visa program placed Plaintiffs in a bait-and-switch situation in which Plaintiffs journeyed from Mexico to Idaho with one set of work expectations, only to be required upon arrival to perform a substantial volume of menial work. As a practical matter, the resulting situation would be expected to, and did, exert substantial pressure on Plaintiffs to go along with providing labor that was very different from what they had agreed and expected to perform.”

Background: Funk Dairy and its manager Curtis Giles used the “TN Visa” program—established pursuant to the North American Free Trade Agreement to provide visas for qualifying professional work—to recruit plaintiffs,6 Mexican citizens, as scientists. When plaintiffs arrived at the dairy, they were surprised to find that much of the work they were expected to perform was unskilled manual labor. During the course of their employment, Giles made references to their possible deportation if they ceased working at Funk Dairy.

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

Result: The Ninth Circuit reversed. As the Court explained, plaintiffs’ federal claims turned on whether they had established a violation of 18 U.S.C. § 1589, which prohibits “knowingly” obtaining labor services through specified types of coercion. The Ninth Circuit held plaintiffs had raised a triable issue of fact as to whether Funk Dairy had secured their labor through “abuse or threatened abuse of law or legal process” within the meaning of § 1589.

Here, the Court reasoned, a jury could conclude that Funk Dairy had used the TN Visa program for a purpose for which it was not designed—namely, to obtain nonprofessional, rather than professional, labor. The Court emphasized that Funk Dairy had submitted letters to the immigration authorities claiming that plaintiffs would be performing various scientific tasks requiring a bachelor’s degree, when in fact Funk’s internal employment records listed plaintiffs as having occupations such as “Milker.” The Court concluded that a jury could likewise find that the Funk Dairy had misused the program in this way to “pressure” plaintiffs to provide labor different from that to which they’d agreed, given defendants’ apparent “bait-and-switch” and their threats of deportation (some of which misrepresented the applicable law). And, the Court continued, there was evidence that this pressure caused plaintiffs to provide nonprofessional labor—rejecting defendants’ arguments that the fact that plaintiffs were free to leave (and ultimately did quit) broke the causal chain. Finally, 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 defendants “intended the coercive pressure and its effects on the employee,” as required to satisfy the statute’s mens rea requirement.