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Environmental Defense Fund v. Watt

Citation: 14 ELR 20070
No. No. 83-6005, 722 F.2d 1081/20 ERC 1167/(2d Cir., 11/30/1983) Aff'd

The Second Circuit affirms an award of attorneys fees to an environmental group under the Equal Access to Justice Act holding that the government's position both before and during litigation was not substantially justified. Plaintiffs had sought injunctive relief barring the spraying of pesticides within two national wildlife refuges, and succeeded in obtaining a favorable settlement and an award of attorneys fees. Appellants argue that the government's position in the litigation was substantially justified and that the district court wrongly awarded fees based on the government's unjustified prelitigation activity. The court of appeals, noting but not exploring the distinction between the justifiability of the government's position before and after the commencement of the litigation, concludes that the government's position was not reasonable in either respect. In assessing the reasonableness of the government's position in the latter respect, the court holds that the lower court erred because it did not consider the full period of settlement negotiations. The fact that it took the parties seven months to reach agreement suggests strongly that the government adhered, at least initially, to unreasonable legal positions. The government's subsequent failure to meet its burden of showing justification for its position supports the award of fees to the plaintiffs-appellees.

In a dissenting opinion, one member of the panel expresses his concern that the majority opinion will tend to discourage settlements by government counsel. He argues that the government should be found to have adopted an unreasonable position based only on its articulated position within specific pleadings and not on its position in settlement negotiations.

Counsel for Appellants
Deborah A. Zwany; Raymond J. Dearie, U.S. Attorney; Miles M. Tepper
U.S. Cthse., 225 Cadman Plaza E., Brooklyn NY 11201
(212) 330-7106

Counsel for Appellees
Edward Lee Rogers
4801 Massachusetts Ave. NW, Washington DC 20016
(202) 364-0128

Michael J. Bean
Environmental Defense Fund, Inc.
1525 18th St. NW, Washington DC 20036
(202) 387-3500