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National Coalition Against the Misuse of Pesticides v. Thomas

ELR Citation: 18 ELR 20016
Nos. Nos. 86-1114, -1535, 828 F.2d 42/(D.C. Cir., 09/15/1987) Attorney fees denied

The court holds that a citizens' group that challenged the Environmental Protection Agency's (EPA's) decision to issue an interim tolerance for ethylene dibromide (EDB) is not entitled to attorney fees under the Equal Access to Justice Act (EAJA). The court had initially held that EPA acted arbitrarily and capriciously in reestablishing an interim tolerance of 30 parts per billion of EDB in imported mangoes under the Federal Food, Drug, and Cosmetic Act (FFDCA). The court subsequently upheld EPA's decision on remand that an interim tolerance through September 30, 1987, was warranted under the FFDCA. The court now holds that petitioners were not prevailing parties within the meaning of EAJA. Petitioners' real interest in this litigation was to obtain an outright ban on the use of EDB on mangoes; they clearly have not achieved this objective. Nor was the court's holding in its first opinion that EPA incorrectly interpreted the FFDCA a victory for petitioners sufficient to justify an award of fees, since the decision, at best, amounted only to a procedural victory for petitioners. Even if petitioners were prevailing parties, the court holds, the government's position was substantially justified. Correct interpretation of FFDCA §408(b) was far from clear, and EPA's actions were certainly reasonable. The agency's unexplained reversal of its position on the health risks of EDB is not sufficient in itself to render EPA's actions unreasonable.

[The court's decisions on the merits are published at 17 ELR 20435 and 20910.]

Counsel for Petitioners
Alexander J. Pires Jr.
Scott, McLeod, Himmelberg, Matz, Pires & Price
4th Fl., 2501 M St. NW, Washington DC 20037
(202) 861-1234

Counsel for Respondents
Letitia Grishaw
Land and Natural Resources Division
Department of Justice, Washington DC 20530
(202) 633-2000

Before: STARR and WILLIAMS, Circuit Judges, and JOYCE GREEN,* District Judge.