Hardin v. Jackson

United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT

Argued September 21, 2010 Decided October 29, 2010

No. 09-5365

RANDY HARDIN AND VERNON BLASINGAME,
APPELLANTS

v.

LISA PEREZ JACKSON, ADMINISTRATOR, UNITED STATES
ENVIRONMENTAL PROTECTION AGENCY,
AND BASF CORPORATION,
APPELLEES

Appeal from the United States District Court
for the District of Columbia
(No. 1:04-cv-01299)

Gabrielle H. Kickham argued the cause for the appellants.
James B. Dougherty, James D. MacIntyre and William J. French
were on brief.
Robert H. Oakley, Attorney, U.S. Department of Justice,
argued the cause for the federal appellee. Robert G. Dreher,
Principal Deputy Assistant Attorney General, and Lisa E. Jones
and Angeline Purdy, Attorneys, were on brief. Robert P.
Stockman, Attorney, entered an appearance.
James B. Slaughter argued the cause for appellee BASF
Corporation. Kathryn E. Szmuszkovicz and Sarah S. Doverspike
were on brief.
 2

Before: HENDERSON, BROWN and KAVANAUGH, Circuit
Judges.
Opinion for the Court filed by Circuit Judge HENDERSON.
KAREN LECRAFT HENDERSON, Circuit Judge: The
appellants, two Arkansas tomato farmers, brought this action
seeking declaratory and injunctive relief to require appellee Lisa
Perez Jackson, Administrator of the Environmental Protection
Agency, (EPA) to cancel the registration of “Facet” pesticides
that appellee BASF Corporation (BASF) has manufactured and
distributed to rice farmers for weed control. The appellants
claim that Facet has been drifting over and damaging their
tomato crops since 1992 when EPA registered the first Facet
pesticide, Facet 50 WP (Facet 50), under subsections 3(c)(7)(A)
and (B) of the Federal Insecticide, Fungicide, and Rodenticide
Act (FIFRA), 7 U.S.C. § 136a(c)(7)(A), (B). They further assert
the 1992 registration was procedurally defective because EPA
should have registered Facet 50 under subsection 3(c)(7)(C),
which requires that EPA make findings regarding the pesticide’s
safety and the public interest, findings that EPA did not make.
The district court dismissed the action for lack of subject-matter
jurisdiction on the ground the appellants did not file the
complaint until 2004, which was beyond the six-year limitation
period prescribed in 28 U.S.C. § 2401(a).1 Hardin v. Jackson,
648 F. Supp. 2d 42 (D.D.C. 2009). We agree with the district
court that the action is time-barred and affirm the dismissal.

1
As we observed in P & V Enterprises v. U.S. Army Corps of
Engineers, 516 F.3d 1021 (D.C. Cir. 2008), we have “long held that
section 2401(a) creates ‘a jurisdictional condition attached to the
government’s waiver of sovereign immunity.’ ” 516 F.3d at 1026
(quoting Spannaus v. U.S. Dep’t of Justice, 824 F.2d 52, 55 (D.C. Cir.
1987) (citations omitted)).
 3

I.
Section 3(a) of FIFRA prohibits the distribution or sale of
a pesticide that EPA has not registered thereunder. 7 U.S.C.
§ 136a(a).2 Under FIFRA, the registration is either
unconditional, id. § 136a(c)(5), or conditional, id. § 136a(c)(7).
A conditional registration—conditioned on submission of
additional data—is authorized under three circumstances. First,
EPA may conditionally register a pesticide if “the pesticide and
proposed use are identical or substantially similar to any
currently registered pesticide and use thereof, or differ only in
ways that would not significantly increase the risk of
unreasonable adverse effects on the environment,” id.
§ 136a(c)(7)(A); second, EPA may conditionally amend a
pesticide’s registration “to permit additional uses of such
pesticide,” id. § 136a(c)(7)(B); and third, EPA may
conditionally register a pesticide “containing an active
ingredient not contained in any currently registered pesticide for
a period reasonably sufficient for the generation and submission
of required data” but “only if [EPA] determines that use of the
pesticide during such period will not cause any unreasonable
adverse effect on the environment, and that use of the pesticide
is in the public interest,” id. § 136a(c)(7)(C).
In January 1992, BASF submitted an application for
conditional registration of Facet 50, which contained the active
ingredient quinclorac, an effective weed control pesticide for
rice crops. On October 13, 1992, EPA notified BASF that it had
conditionally registered Facet 50 under subsections 3(c)(7)(A)
and 3(c)(7)(B). Along with the notice, EPA sent BASF a label

2
FIFRA defines “pesticide” as “(1) any substance or mixture of
substances intended for preventing, destroying, repelling, or mitigating
any pest, (2) any substance or mixture of substances intended for use
as a plant regulator, defoliant, or desiccant, and (3) any nitrogen
stabilizer.” 7 U.S.C. § 136(u).
 4

which was required to be affixed to the distributed product and
which displayed, inter alia, the fact and date of registration and
the registration number. In September 1994 and April 1998,
EPA registered two additional quinclorac products, Facet 75 DF
(Facet 75) and Facet GR, each under subsection 136a(c)(7)(A)
as each was “substantially similar to [a] currently registered
pesticide,” namely, Facet 50.
Beginning in March 1995, the appellants filed multiple civil
actions in Arkansas state court against Facet applicators,
alleging that “drift” from the sprayed Facet was damaging their
tomato crops. See Hardin, 648 F. Supp. 2d at 47. On June 26,
2000, the appellants (along with other Arkansas tomato farmers)
filed a class action against BASF in the Eastern District of
Arkansas, alleging their tomato crops had been damaged by
“uncontrolled and uncontrollable drift, migration or other
dispersal of Facet.” Complaint ¶ 41, Hardin v. BASF Corp,
4:00-cv-00500 (E.D. Ark. June 26, 2000). The district court
granted summary judgment to BASF on the ground the action
was expressly preempted by FIFRA, Hardin v. BASF Corp., 290
F. Supp. 2d 964, 967 (E.D. Ark. 2003), but on appeal the Eighth
Circuit remanded, Hardin v. BASF Corp., No. 03-3624 (8th Cir.
June 29, 2005). On remand the parties settled. Order of
Dismissal Pursuant to Settlement, Hardin v. BASF Corp, 4:00-
cv-00500 (E.D. Ark. Nov. 16, 2006).
In September 2003, the appellants filed an administrative
petition with EPA to revoke or to suspend and cancel all of
EPA’s registrations of Facet pesticides. The petition alleged that
BASF “fraudulently withheld or misrepresented material facts”
regarding its FACET products and that EPA conditionally
registered Facet “without making the findings required by law
for such a registration and contrary to the statutory terms which
preclude a conditional registration for a revolutionary product
such as Facet.” Petition to Revoke or to Suspend and Cancel
EPA Registrations for Facet® Herbicides, Hardin v. BASF, at
 5

72, reprinted at JA 210. While the administrative petition was
pending, the appellants filed this action against EPA on August
3, 2004.
The complaint asserts three causes of action, one each under
FIFRA, the Mandamus Act, 28 U.S.C. § 1361, and the
Administrative Procedure Act, 5 U.S.C. §§ 551 et seq. All three
claims are based on EPA’s conditional registration of Facet 50
in 1992. The complaint alleges in particular that EPA violated
FIFRA’s procedural requirements by (1) conditionally
registering Facet 50 under section 3(c)(7)(A) and (B) “in the
face of BASF’s failure to meet the criteria for conditional
registration” and (2) failing to obtain data or to make or publish
in the Federal Register factual determinations as required under
section 3(c)(7)(C). Complaint at 18, Hardin v. Leavitt, C.A. No.
04-01299 (Aug. 3, 2004). According to the appellants, because
EPA had not previously registered a quinclorac pesticide, Facet
50 was ineligible both for registration under subsection
3(c)(7)(A) (as “identical or substantially similar to a[] currently
registered pesticide”) and for amended registration under
subsection 3(c)(7)(B) (“to permit additional uses”)—the
subsections identified in the Facet 50 registration notice.
Instead, because Facet 50 “contain[ed] an active ingredient not
contained in any [then] registered pesticide,” 7 U.S.C.
§136a(c)(7)(C), the appellants maintain the product was eligible
only for conditional registration under section 3(c)(7)(C), which
requires that EPA affirmatively determine that the registered
pesticide “will not cause any unreasonable adverse effect on the
environment, and that use of the pesticide is in the public
interest,” 7 U.S.C. § 136a(c)(7)(C), findings that EPA did not
make.3 The appellants further assert that EPA’s later derivative

3
EPA also failed to publish, as required, a pre-registration notice
of application (to be followed by a comment period) or a post-
 6

registrations of Facet 75 and Facet GR under section 3(c)(7)(A)
(as “identical or substantially similar to” Facet 50) were
consequently defective as well. Based on these procedural
defects, the complaint requests (1) a declaration that BASF’s
three Facet products “were not properly and validly registered”
and that their registrations are therefore “null and void,” (2) an
order requiring EPA to “cancel any and all purported
registrations of any BASF Quinclorac-based product, including
but not limited to Facet 50 WP and Facet 75 DF,” to remove
quinclorac-based products from the market and to refrain from
“the further distribution or sale of such products within the
United States” and (3) an award of costs, including attorney’s
fees. Complaint at 20-21, Hardin v. Leavitt, C.A. No. 04-
01299.
EPA moved to dismiss the complaint on the ground it was
filed outside the statutory limitation period (and for summary
judgment on other grounds). On July 27, 2005, the district court
denied EPA’s motion without prejudice “[i]n light of plaintiffs’
pending administrative petition that, if granted, could render the
instant case moot” and removed the case from the calendar
“pending the outcome of the on-going administrative action.”
Minute Order, Hardin v. Leavitt, C.A. No. 04-01299 (July 27,
2005). The court further directed the parties to file a joint status
report every 90 days.
On August 14, 2007, the district court held a status hearing
at which it directed the parties to commence filing monthly
status reports and scheduled another status hearing for January
2008. In each of three consecutive monthly reports—filed in
October, November and December 2007—EPA informed the
court that it anticipated taking final administrative action no
later than December 31, 2007. When no final action had been

registration notice of issuance. See 40 C.F.R. § 152.102; 7 U.S.C.
§ 136a(c)(4).
 7

taken by the time of the January 8, 2008 status hearing, the court
returned the case to the active docket and directed EPA to file an
answer. In March 2009, BASF intervened as a defendant. On
August 27, 2009 the court dismissed the complaint for failure to
commence the suit within six years after the appellants’ right of
action accrued pursuant to 28 U.S.C. § 2401(a). The appellants
filed a timely notice of appeal.
II.
The district court correctly concluded that the applicable
statute of limitations is 28 U.S.C. § 2401(a), which provides:
Except as provided by the Contract Disputes Act of
1978, every civil action commenced against the United
States shall be barred unless the complaint is filed
within six years after the right of action first accrues.
The action of any person under legal disability or
beyond the seas at the time the claim accrues may be
commenced within three years after the disability
ceases.
Under this statute, a party challenging final agency action must
commence his suit within six years after the right of action
accrues and the “right of action first accrues on the date of the
final agency action.” Harris v. FAA, 353 F.3d 1006, 1009-10
(D.C. Cir. 2004); see also Felter v. Kempthorne, 473 F.3d 1255,
1259 (D.C. Cir. 2007) (“Actions usually accrue ‘when [they]
come[ ] into existence.’ ” (quoting United States v. Lindsay, 346
U.S. 568, 569 (1954))). Thus, ordinarily, the appellants’ right
of action accrued on October 13, 1992 when EPA conditionally
registered Facet 50 and the six-year limitation period began to
run on that day. In this case, however, the appellants insist their
right of action accrued much later because of the “discovery
rule.”
Under the discovery rule, “a cause of action accrues when
the injured party discovers—or in the exercise of due diligence
 8

should have discovered—that it has been injured.” Nat’l
Treasury Emps. Union v. FLRA, 392 F.3d 498, 501 (D.C. Cir.
2004) (internal quotation omitted). The appellants contend that,
under the rule, their right of action did not accrue until they
discovered their procedural injuries, which did not occur until at
least July 2000 when BASF raised its preemption defense in the
Arkansas class action and thereby put them on notice that the
Facet products had been registered under FIFRA.4 Thus, they
maintain, their August 3, 2004 complaint in this action was
timely filed. Appellants’ Br. 15; see also Pls.’ Combined Reply
in Supp. of Their Mot. For Summ. J. & Resp. in Opp’n. to
EPA’s Mot. for Summ. J. at 8-9, Hardin v. Johnson, C.A. No.
04-1299 (filed Oct. 27, 2008). The appellees respond that the
discovery rule does not apply to an action subject to section
2401(a)’s limitation period, which must be construed strictly in
favor of the government, or to a claim of procedural error, for
which applicable precedent directs that the limitation period
begins to run upon final agency action. We conclude, as did the
district court, that, even assuming the discovery rule applies
here—an issue we do not decide—the appellants’ action was
filed out of time.
Exercising “due diligence,” the appellants or their counsel
should have discovered that EPA had registered the Facet
products long before BASF raised its preemption defense in July

4
“To establish injury-in-fact in a ‘procedural injury’ case,
petitioners must show that ‘the government act performed without the
procedure in question will cause a distinct risk to a particularized
interest of the plaintiff.’ ” City of Dania Beach, Fla. v. FAA, 485 F.3d
1181, 1185 (D.C. Cir. 2007) (quoting Audubon Soc'y v. Bentsen, 94
F.3d 658, 664 (D.C. Cir. 1996) (en banc)). The appellants have met
this standing threshold because EPA’s alleged failure to determine that
Facet 50 “will not cause any unreasonable adverse effect on the
environment” has caused a “distinct risk” to their “particularized
interest” in a healthy tomato crop. See 7 U.S.C. § 136a(c)(7)(C).
 9

2000. It is undisputed that in 1995 the appellants filed suit
against Facet 50 applicators in Arkansas state court. See
BASF’s Mem. of Points & Auths. in Supp. of Mot. to Dismiss,
or, in the Alternative, for Summ. J., & in Opp’n to Pls.’ Mot. for
Summ. J. at 2 n.1, Hardin v. Johnson, C.A. No. 04-1299 (D.D.C.
filed Mar. 3, 2009); Appellants’ Br. 18 (acknowledging state
court actions involving “claims for negligence asserted against
neighbors and aerial applicators for misapplication of Facet”)
(emphasis omitted); Complaint, Blasingame v. Carwell Elevator
Co., No. CIV 95-034 (Poinsett County, Ark. Cir. Ct. filed Mar.
3, 1995) (appended to BASF’s Brief at add. doc. 2B) (Carwell
Compl.). That Facet 50 was registered was obvious from the
registration notice appearing on the label of Facet 50—a label
with which they plainly should have been familiar inasmuch as
Facet 50 was the product sub judice. See Parties’ Stipulation of
Facts and Exs., Hardin v. Johnson, C.A. No. 04-1299, Ex. 177
at 3 (July 10, 2008) (Facet 50 label);5 Carwell Compl. ¶ 4
(alleging Carwell “failed to follow the restrictions on the labels
of the herbicides it was spraying”) (emphasis added). As early
as 1995, therefore, the appellants were on notice of Facet 50’s
registration and could have requested registration documentation
from EPA that would have revealed Facet 50 had been

5
The Facet 50 label registration notice reads:
ACCEPTED
October 13, 1992
Under the Federal Insecticide,
Fungicide, and Rodenticide Act,
as amended, for the pesticide
registered under
EPA Reg. No. 7969-93
Ex. 177 at 3.
 10

conditionally registered, albeit incorrectly,6 under
subsections 3(c)(7)(A) and 3(c)(7)(B), for which the appellants
claim it was ineligible.
The appellants argue the state court suits are immaterial
because they asserted that Facet 50 was “misappli[ed],” not that
it was “defective” or “improperly registered.” Appellants’ Br.
18. We find this argument unpersuasive. The complaint in
Carwell expressly characterizes Facet 50 as “inherently
dangerous,” Carwell Compl. ¶ 4 (emphasis added), apparently
without regard to how it is applied. In any event, the Arkansas
district court (in language the appellants themselves cite,
Appellants’ Br. 18) observed that within “a few years” after
“Facet appeared on the market” and the appellants “began
suffering significant crop losses”—that is, a few years after
1992—state investigators, local cooperative extension service
personnel and University of Arkansas experts “reached a
consensus that quinclorac, the active ingredient in Facet, was
damaging [the Appellants’] tomatoes.” 290 F. Supp. 2d at 968-
69. The appellants give no explanation for their failure to
investigate the legality of quinclorac’s distribution at that time.
For the same reason, we reject the appellants’ argument that “it
was not until 1999, when University of Arkansas professors
undertook a special study of off-target Facet drift, that Plaintiffs
had sufficient evidence to bring their products liability action
against BASF.” Appellants’ Br. 18-19 (citing 290 F. Supp. 2d
at 969). The appellants believed Facet to be “inherently
dangerous” to their crops as early as 1995; they could have
investigated the product’s FIFRA registration as soon as they
were put on notice of it—that is, via the Facet 50 label

6
As the appellants argue and the district court concluded, EPA
could not lawfully register Facet 50 under section 3(c)(7)(A) or (B)
because EPA had not previously registered any quinclorac-based
pesticide. See supra p. 5; Hardin, 648 F. Supp. 2d at 44 n.4.
 11

displaying the FIFRA registration number—and filed a timely
lawsuit based on the results thereof. They had no reason to wait.
See Rotella v. Wood, 528 U.S. 549, 555 (2000) (“[I]n applying
a discovery accrual rule, [the Court] ha[s] been at pains to
explain that discovery of the injury, not discovery of the other
elements of a claim, is what starts the clock.”); United States v.
Kubrick, 444 U.S. 111, 123 (1979) (plaintiff “armed with the
facts about the harm done to him, can protect himself by seeking
advice in the medical and legal community. To excuse him from
promptly doing so by postponing the accrual of his claim would
undermine the purpose of the limitations statute, which is to
require the reasonably diligent presentation of tort claims
against the Government.”).
Because the appellants knew or should have known of their
injuries no later than 1995 when they filed their state lawsuits,
we conclude that, even under the discovery rule, the statutory
limitation period began to run more than six years before they
filed their complaint in this action on August 3, 2004.
Accordingly we affirm the district court’s dismissal of the suit
as time-barred under 28 U.S.C. § 2401(a).
So ordered.