FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
TIMM ADAMS,
Plaintiff,
and
CLINGER GROWER GROUP; FUNK
GROWER GROUP; HANSEN GROWER
GROUP; JENTZCH-KEARL GROWER
GROUP, No. 10-35458
Plaintiffs-Appellees,
D.C. No.
v. 4:03-cv-00049-BLW
UNITED STATES OF AMERICA,
Defendant,
and
E.I. DU PONT DE NEMOURS AND
COMPANY,
Defendant-Appellant.
17075
17076 ADAMS v. UNITED STATES
TIMM ADAMS,
Plaintiff,
and
CLINGER GROWER GROUP; FUNK
GROWER GROUP; HANSEN GROWER
GROUP; JENTZCH-KEARL GROWER
GROUP, No. 10-35592
Plaintiffs-Appellants,
D.C. No.
v. 4:03-cv-00049-BLW
UNITED STATES OF AMERICA,
Defendant,
and
E.I. DU PONT DE NEMOURS AND
COMPANY,
Defendant-Appellee.
ADAMS v. UNITED STATES 17077
TIMM ADAMS,
Plaintiff,
and
CLINGER GROWER GROUP; FUNK
GROWER GROUP; HANSEN GROWER
GROUP; JENTZCH-KEARL GROWER
No. 10-35611
GROUP,
Plaintiffs-Appellees,
D.C. No.
4:03-cv-00049-BLW
v.
OPINION
UNITED STATES OF AMERICA,
Defendant-Appellant,
and
E.I. DU PONT DE NEMOURS AND
COMPANY,
Defendant.
Appeal from the United States District Court
for the District of Idaho
B. Lynn Winmill, Chief District Judge, Presiding
Argued and Submitted
February 8, 2011—Seattle, Washington
Filed September 8, 2011
Before: Betty B. Fletcher, Richard A. Paez, and
Sandra S. Ikuta, Circuit Judges.
Opinion by Judge Paez
ADAMS v. UNITED STATES 17079
COUNSEL
Peter C. Houtsma, Holland & Hart LLP, Denver, Colorado,
Steven B. Andersen, Walter H. Bithell, Amanda K. Brails-
17080 ADAMS v. UNITED STATES
ford, Holland & Hart LLP, Boise, Idaho, for plaintiffs-
appellees Clinger Grower Group, Funk Grower Group, Han-
sen Gower Group, Jentzch-Kearl Grower Group, et al.
Tony West, United States Assistant Attorney General, Wendy
J. Olson, United States Attorney, Mark B. Stern, Mark R.
Freeman, United States Department of Justice, Washington
D.C., for defendant-appellant United States.
OPINION
PAEZ, Circuit Judge:
In 1999 and 2000, the federal Bureau of Land Management
(“BLM”) applied the herbicide Oust to approximately 70,000
acres of federal lands in South Central Idaho in an effort to
combat a devastating wildfire cycle. Wind carried some of the
Oust off the federal land and onto privately owned farmland
nearby. The herbicide caused significant damage to the crops
on these farmlands. The Plaintiffs in this case, 134 farmers
whose crops suffered as a result of the Oust applications, sued
the federal government and Oust’s manufacturer E.I. Du Pont
De Nemours and Company (“DuPont”). The district court
adopted a bellwether trial plan and selected four Bellwether
Plaintiffs to resolve those issues in the case that do not depend
on individual circumstances. The resolution of these issues
will bind both the Bellwether and all other Plaintiffs. The dis-
trict court conducted a 16-week trial involving claims against
both DuPont and the government. The jury returned an advi-
sory verdict against the federal government, and a verdict
against DuPont. As required by the Federal Tort Claims Act
(“FTCA”), 28 U.S.C. § 2402, the district court, upon its own
fact-finding and independent review of the record, rendered a
verdict against the federal government. Both the jury and the
district court allocated 60% of the fault to DuPont and 40%
to the federal government. The government and DuPont
ADAMS v. UNITED STATES 17081
appealed: we resolve the government’s appeal in this opinion
and DuPont’s appeal, No. 10-35458, in a memorandum dispo-
sition filed simultaneously with this opinion.
The government argues that jurisdiction is lacking, that the
FTCA bars the “debt-based costs” that the district court
awarded to Plaintiffs, and that Plaintiffs did not exhaust their
administrative remedies for the crop damage they suffered in
2003 and 2004. Because we agree with the government that
jurisdiction is lacking, we address only this threshold issue,
and we accordingly limit our discussion of the complex facts
of this case.
Factual Background1
BLM, an agency of the Department of the Interior, man-
ages approximately 11 million acres of public land in Idaho.
Every year, wildfires burn thousands of acres of this BLM
land and the BLM engages in extensive efforts to repair and
rehabilitate burned rangelands. Many of the wildfires in
Idaho’s federal lands are fueled by cheatgrass; these fires tend
to be very large and can be catastrophic.
Cheatgrass is an annual non-native plant that grows up
early in the spring, dries out very early in the summer, and
provides a continuous bed of fuel for wildfires. It is shallow-
rooted, which leads to damaging erosion in areas where it is
prevalent. Perennial vegetation, which is native to the Idaho
lands, is deep-rooted and stays green longer into the season
than cheatgrass. As a result, perennial vegetation is signifi-
cantly more fire-resistant than cheatgrass. As part of its man-
agement duties, BLM has made it a goal to substitute
perennial vegetation for cheatgrass in Idaho—if successful,
this substitution would reduce the instances and severity of
1
In summarizing the facts, we draw extensively on the district court’s
Findings of Fact and Conclusions of Law, as none of the parties have chal-
lenged those factual findings.
17082 ADAMS v. UNITED STATES
wildfires. During the 1980s, BLM unsuccessfully attempted
to fight cheatgrass with prescribed burns, plowing, re-seeding,
and seed drilling. Next, BLM tried the herbicide Roundup,
which only sometimes killed the cheatgrass. Roundup is a
post-emergent herbicide, meaning that it has to be sprayed on
green vegetation in order to kill the vegetation. Roundup
becomes almost entirely inactive once it hits soil. In 1987,
after Roundup had proven only somewhat useful in combating
cheatgrass, a BLM ecologist started looking at other herbi-
cides that might be more successful. Oust was one of these
herbicides.
Oust is manufactured by DuPont and is registered under the
Federal Insecticide, Fungicide, and Rodenticide Act
(“FIFRA”) with the Environmental Protection Agency
(“EPA”). Oust is a commercial name for the chemical com-
pound sulfometuron methyl, which belongs to the sulfony-
lureas chemical family. Sulfonylureas chemicals inhibit
amino lactase synthase and are known for their high potency
in low doses as compared to other herbicides. Oust kills or
injures crops by affecting a plant’s root system, preventing it
from taking up water and nutrients from the soil and causing
drought-like symptoms. Oust is not labeled for any use on
agricultural crops.
In 1999 and 2000, there were particularly catastrophic
wildfires in Idaho and BLM developed fire rehabilitation
plans which included the use of Oust on tens of thousands of
acres. Beginning in Spring 2000, farmers near the application
sites started to notice problems with their crops. In Spring
2001, again, farmers saw damage to their sugar beets, pota-
toes, grain, and other crops; this time the damage was more
substantial. The Idaho State Department of Agriculture
(“ISDA”) and private crop consultants initiated investigations.
Both the ISDA and the private consultants concluded that the
crop damage occurred because severe winds caused Oust
treated soil particles to move off BLM targets and onto neigh-
boring crops.
ADAMS v. UNITED STATES 17083
Procedural Background
One hundred and thirty-four of the farmers whose crops
were damaged by Oust filed administrative FTCA claims with
the Department of Interior in April 2002. The farmers alleged
that “BLM’s negligent and otherwise wrongful conduct killed
or seriously injured the claimants’ 2000 and 2001 crops. Fur-
ther, it contaminated the claimants’ croplands. As a result of
this contamination, Oust will continue to damage future crops
until it dissipates.” The Department of Interior denied Plain-
tiffs’ administrative claims in letters dated August 5, 2002.
The FTCA requires government agencies to send adminis-
trative denial letters by certified or registered mail. 28 U.S.C.
§ 2401(b). Here, BLM opted to send the denial letters by cer-
tified mail. Because of the large size of the mailing, BLM
used Firm Mailing Sheets instead of preparing each letter
individually. This method of certified mailing involves using
United States Postal Service (“USPS”) Forms 3800 and 3877.
BLM inadvertently left two of the farmers off of the Firm
Mailing Sheets. For these two farmers, BLM prepared their
denial letters as individual certified mailings using only Form
3800. After a BLM employee prepared the administrative
denial mailing on August 5, 2002, she took the letters to
BLM’s delivery and pick up door for USPS services. The
USPS collector picked up all of the letters the same day and
USPS treated the letters as certified mail.
Plaintiffs filed this lawsuit in federal court on February 6,
2003—six months and one day after the date BLM mailed the
administrative denial letters. The FTCA affords claimants
only six months after the government denies their administra-
tive claim to file a lawsuit in federal court. 28 U.S.C.
§ 2401(b). The district court denied BLM’s motion to dismiss
the case for lack of subject matter jurisdiction, holding that
the government “may not obtain the benefits of [the] limita-
tions period” because it “did not obtain a postmark from the
Post Office to establish the mailing date.”
17084 ADAMS v. UNITED STATES
As noted, the district court proceeded to adopt a bellwether
trial plan and selected four Bellwether Plaintiffs. The bell-
wether jury selection began May 4, 2009. A nine person jury
returned a unanimous special verdict on August 24, 2009. The
special verdict form contained questions as to BLM’s liability
for the following:
• Negligence in selecting Oust and/or the applica-
tion sites (Yes);2
• Negligence based on a violation of the Idaho Pes-
ticide and Chemigation Act (No);
• Negligence based on a violation of FIFRA (No);
• Violation of the Idaho Nuisance Statute (Yes);
• Trespass (Yes);
• Negligence in supervising the contracted applica-
tors of Oust (No).
The special verdict form contained questions as to BLM’s
proximate causation for the following:
• Damage to Bellwether Plaintiff Clinger’s sugar
beets in 2000-2002, and wheat in 2001 (Yes);
• Damage to Bellwether Plaintiff Funk’s sugar
beets in 2001-2002, potatoes in 2001-2003, corn
in 2001-2003, wheat in 2001-2003, and barley in
2001-2002 (Yes);
• Damage to Bellwether Plaintiff Jentzsch-Kearl’s
2
The parenthetical notation represents the jury’s advisory answer as
indicated on the special verdict form.
ADAMS v. UNITED STATES 17085
sugar beets in 2000-2002 and 2004, potatoes in
2000-2002 (Yes);
• Damage to Bellwether Plaintiff Hansen’s sugar
beets in 2000-2002, potatoes in 2000-2004, and
wheat in 2001-2002 (Yes).
The jury’s verdict as to BLM was advisory, because the
FTCA requires the court to be the fact finder for claims
against the government. 28 U.S.C. § 2402. The jury allocated
60% fault to DuPont and 40% fault to BLM. The district court
also concluded that the defendants’ respective fault was 60%
as to DuPont and 40% as to BLM. The total damages for all
four Bellwether Plaintiffs were nearly $17 million. DuPont
and BLM timely appealed.
After oral argument, we issued a limited remand to the dis-
trict court. We instructed the district court to determine
“[w]hether the United States sent administrative denial letters
to Plaintiffs by a method that qualifies as certified mail.” We
explained that,
[a] limited remand is warranted because the district
court failed to resolve material factual issues relating
to whether the United States mailed administrative
denial letters to Plaintiffs by a method that qualifies
as certified mail. The court reasoned that Congress
intended to require that the United States obtain a
postmarked sender’s receipt when it sends Federal
Tort Claims Act administrative denial letters by cer-
tified mail, which the government did not do here.
The district court’s interpretation of 28 U.S.C.
§ 2401(b) is inconsistent with the statute’s plain text
and is not supported by any case law.
In response, the district court filed Findings of Fact and
Conclusions of Law. The district court concluded, as a matter
of law, that “the only option for mailing certified mail using
17086 ADAMS v. UNITED STATES
form 3877 is to mail the letters from a post office, branch, or
station, or by giving it to a rural carrier.” As a result, the dis-
trict court concluded that the denial letters for which BLM
used Form 3877 and that BLM’s USPS collector picked up
from the BLM mail room were not sent by a method that
qualified as certified mail. Thereafter, the parties filed supple-
mental briefs addressing the district court’s ruling on remand.3
“We review de novo whether we have subject matter juris-
diction.” Atwood v. Fort Peck Tribal Court Assiniboine, 513
F.3d 943, 946 (9th Cir. 2008).
Discussion
BLM argues that we lack subject matter jurisdiction over
Plaintiffs’ FTCA claims for two reasons. First, BLM argues
that Plaintiffs filed their lawsuit one day after the FTCA’s
statute of limitations had run, forever barring their claims.
Second, BLM argues that the discretionary function excep-
tion, which provides immunity against FTCA claims even
where a federal agency abuses its discretion, so long as the
abuse occurs in the performance of non-mandatory duties,
bars Plaintiffs’ claims. Because we conclude that Plaintiffs’
claims are barred by the FTCA statute of limitations, we do
not address BLM’s discretionary function argument.
[1] When the appropriate federal agency denies an admin-
istrative FTCA claim, the claimant has six months, from the
date when the denial was mailed by certified or registered
mail, to file a complaint in federal court. 28 U.S.C. § 2401(b).
After the expiration of the six months, the “tort claim against
the United States shall be forever barred.” Id. The FTCA’s
statute of limitations is jurisdictional and not subject to equi-
table tolling or estoppel. Marley v. United States, 567 F.3d
1030, 1038 (9th Cir. 2009), cert. denied, 130 S. Ct. 796
3
We thank both the district court and the parties for their timely work
in response to our remand, all of which we found useful.
ADAMS v. UNITED STATES 17087
(2009). Thus, FTCA claimants must strictly adhere to the stat-
ute of limitations or lose the right to invoke federal jurisdic-
tion.
[2] The government, however, must also strictly comply
with § 2401(b)’s requirement that administrative denial letters
be sent by certified or registered mail. See 28 U.S.C.
§ 2675(a) (to satisfy administrative exhaustion before filing
an FTCA claim in federal court a claimant’s “claim shall have
been finally denied by the agency in writing and sent by certi-
fied or registered mail.”). We, along with two of our sister cir-
cuits, have indicated that the government cannot invoke the
FTCA statute of limitations if it has failed to comply with the
certified or registered mailing requirement—even if a claim-
ant actually received the notice of denial. Raddatz v. United
States, 750 F.2d 791, 797 (9th Cir. 1984); Flory v. United
States, 138 F.3d 157, 160 (5th Cir. 1998); Miller v. United
States, 741 F.2d 148, 150 (7th Cir. 1984). Thus, we treat the
government’s compliance with the certified or registered
mailing requirement in a manner similar to what we demand
of claimants’ compliance with the six month requirement.
[3] Here, BLM denied Plaintiffs’ administrative claims in
“certified” letters bearing the date August 5, 2002. Plaintiffs
filed their complaint on February 6, 2003—six months and
one day after the date which appears on the letters denying the
administrative claims. Therefore, if the administrative denial
letters triggered the FTCA statute of limitations, Plaintiffs’
claims are “forever barred.” 28 U.S.C. § 2401(b). The district
court concluded that the government complied with the stat-
ute’s certified mailing requirement—thereby triggering the
statute of limitations—for only three of the denial letters.
Having concluded that the government did not mail the rest
of the denial letters by a method that qualified as certified
mail, the district court rejected BLM’s argument that the
FTCA’s statute of limitations bars the claims of those 132
Plaintiffs. We agree with the district court, drawing on Rad-
datz, Flory, and Miller, that if BLM failed to strictly comply
17088 ADAMS v. UNITED STATES
with the statute, it cannot invoke the benefit of the statute of
limitations to shield itself against Plaintiffs’ claims. We do
not, however, agree with the district court that, in this
instance, BLM’s mailing failed to trigger the statute of limita-
tions. As we explain below, BLM mailed all the letters by a
method that qualified as certified mail.
Whether BLM mailed the denial letters by a method that
qualified as certified mail is a mixed question of law and fact.
We review de novo the district court’s legal conclusion that
the method used by BLM to mail all but three of the denial
letters does not qualify as certified mail. In deciding this legal
question, we look to the U.S. Postal Service regulations. We
review the district court’s factual findings for clear error.
[4] USPS Form 3800 is the form commonly associated
with certified mail. See Domestic Mail Manual (“DMM”)
Exhibit 3.3.3.4 Form 3800 has two parts. Id. The left part con-
tains a bar code and a 20 digit identifying number and reads
“Certified Mail” vertically from bottom to top. Id. This left
part is perforated on the right side and, once the backing is
removed, is sticky on the back. The DMM states that “Certi-
fied Mail must bear a barcoded green Form 3800 [the left
side].” DMM § 503.3.3.3.5
The right part of Form 3800 bears the title “U.S. Postal Ser-
vice Certified Mail Receipt” horizontally across the top and
it contains the same 20 digit identifying number that appears
on the sticky left part. DMM Exhibit 3.3.3. This receipt con-
tains space for a customer to fill in, among other information,
postage, certified fee, and the name and address of the certi-
fied mail’s recipient. Id. This receipt does not get attached to
4
Form 3800, as it appears in the DMM at Exhibit 3.3.3., is included as
an Appendix to this opinion.
5
In 39 C.F.R. § 111.1 “the U.S. Postal Service hereby incorporates by
reference in this part, the Mailing Standards of the United States Postal
Service, Domestic Mail Manual.”
ADAMS v. UNITED STATES 17089
the piece of mail that is sent. There are two things a mailer
can do with this receipt. First, if a mailer wants a postmarked
sender’s receipt, the DMM instructs the mailer to “attach the
Certified Mail sticker [the left part of Form 3800] to the
address side of the article and present the article and the com-
pleted receipt [the right part of Form 3800] to the USPS
employee, who then round-dates the receipt to show when the
article was accepted.” DMM § 503.3.3.5(d). If the mailer does
not want a postmarked sender’s receipt, the DMM instructs
the mailer to “attach the ‘Certified Mail’ sticker [the left part
of Form 3800] to the address side of the article, detach the
receipt [the right part of Form 3800], and mail the article.
Mark the receipt to show the date.” This mailing can be done
from a “Post Office, branch, or station or give it to a rural car-
rier. Certified Mail may also be deposited in a Post Office
maildrop, a street letterbox, a nonpersonnel unit, or any other
receptacle for First-Class Mail.” DMM § 503.3.3.1.
Thus, if a mailer chooses not to obtain a postmarked send-
er’s receipt, USPS never sees or checks the sender’s receipt—
the right part of Form 3800—and the mail proceeds as certi-
fied mail with the left barcoded part of Form 3800.
[5] The DMM specifies that mailers can use Form 3877 (or
equivalent privately made Firm Sheets) “in lieu of the receipt
portion of Form 3800.” DMM § 503.3.3.6 (emphasis added).
Even if a mailer uses Form 3877 for the sender’s receipt, the
mailer must still use the barcoded left part of Form 3800 for
every piece of mail. DMM § 503.3.3.3. Because Form 3877
is used “in lieu” of the sender’s receipt portion of Form 3800,
it follows that, just as a postmark is optional on a Form 3800
sender’s receipt, a postmark is optional on a Form 3877 send-
er’s receipt. Moreover, the DMM states, using conditional
language, that “[i]f the mailer wants the firm sheets receipted
by the USPS, the mailer must present the books with the arti-
cles to be mailed at a Post Office. The sheets of the books
become the mailer’s receipts.” DMM § 503.3.3.6 (emphasis
added). Thus, just like a piece of certified mail sent using both
17090 ADAMS v. UNITED STATES
the left and right parts of Form 3800, USPS may never see
Form 3877. The individual pieces of mail, however, will be
processed through USPS as “certified” so long as they contain
the left barcoded part of Form 3800 and the sender pays
proper postage.
[6] The envelopes containing the administrative denial let-
ters in this case bear the left barcoded part of Form 3800.
Plaintiffs do not contend, and no evidence has been offered,
that BLM did not pay proper certified mail postage for the
denial letters. Plaintiffs now simply claim, as the district court
concluded, that the mailing was not done by a method that
qualified as certified mail because BLM mailed the Form
3877 letters from its mailroom and USPS did not inspect the
letters or postmark the Form 3877 receipts before the items
entered the mail. In light of the above discussion, we do not
find Plaintiffs’ argument persuasive. Because the envelopes
containing the denial letters bear the necessary left barcoded
part of Form 3800 and BLM paid proper postage, we con-
clude that BLM mailed the letters by a method that qualified
as certified mail.6 Therefore, Plaintiffs filed this lawsuit one
day late and federal subject matter jurisdiction does not exist
for any of their FTCA claims. The district court erred by not
dismissing the claims against the federal government.
Conclusion
[7] For the foregoing reasons, we hold that Plaintiffs’
FTCA claims are barred by the statute of limitations and that
we lack subject matter jurisdiction over those claims.
DISMISSED.
6
We need not decide whether substantial compliance with the DMM’s
certified mailing requirements would trigger the FTCA’s statute of limita-
tions.
ADAMS v. UNITED STATES 17091
Appendix:
Domestic Mail Manual Exhibit 3.3.3.
Form 3800