HARDIN v. JACKSON
| Decision Date | 29 October 2010 |
| Docket Number | No. 09-5365.,09-5365. |
| Citation | 625 F.3d 739 |
| Parties | Randy HARDIN and Vernon Blasingame, Appellants v. Lisa Perez JACKSON, Administrator, United States Environmental Protection Agency, and BASF Corporation, Appellees. |
| Court | U.S. Court of Appeals — District of Columbia Circuit |
OPINION TEXT STARTS HERE
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.
Before: HENDERSON, BROWN and KAVANAUGH, Circuit Judges.
Opinion for the Court filed by Circuit Judge HENDERSON.
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.
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 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, 2006 WL 5819948 (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 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) () and for amended registration under subsection 3(c)(7)(B) ()-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 registrations of Facet 75 and Facet GR under section 3(c)(7)(A) () 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 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...
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