The D.C. Circuit Court of Appeals has affirmed the dismissal of a challenge to the 1992 registration of the pesticide Facet, ruling that the federal six-year statute of limitations had run. Hardin v. Jackson, No. 09-5365 (D.C. Cir. 10/29/10). Litigation over the Facet pesticides began in an Arkansas state court in 1995, when several tomato farmers sued pesticide applicators in multiple civil actions, alleging property damage due to Facet products drifting onto their fields from nearby rice fields subjected to aerial spraying.

In 2000, the farmers filed a putative class action in federal court making the same argument and also alleging that when EPA first registered the pesticide in 1992, it failed to make mandatory substantive findings. In 2004, the current lawsuit was filed against EPA to challenge its registration of Facet. The district court dismissed the action for lack of subject-matter jurisdiction on the ground that the complaint was filed beyond the six-year limitation period prescribed in 28 U.S.C. § 2401(a). Hardin v. Jackson, 648 F. Supp. 2d 42 (D.D.C. 2009). Plaintiff appealed, arguing that the statute of limitations should start running when the agency’s FIFRA violation is discovered, not when the pesticide is registered.

The appellate court disagreed, ruling that the statute of limitations began to run when plaintiffs should have known of their injuries from EPA errors in product registration. According to the court, plaintiffs should have known of their alleged injuries by 1995, and therefore, the 2004 filing of the complaint was beyond the six-year limitations period.