Safer, Inc. v. Thomas

No. 86-2870 (D.D.C. November 18, 1986)

The court rules that the Federal Insecticide, Fungicide, and Rodenticide Act (FIFRA) requires a pesticide registration holder to exhaust administrative remedies before going to court to cancel a competitor's registration allegedly secured by use of plaintiff's research data. FIFRA § 3(c)(1)(D) grants 10 years' exclusive use of data submitted in support of a pesticide registration petition. Nonetheless, the court finds that 40 C.F.R. § 152.99 provides specific administrative procedures for a registration holder to seek cancellation of a rival's subsequent registration allegedly secured through the use of the earlier registrant's exclusive use data. Declining to follow an Indiana court decision, the court concludes that plaintiff should not be allowed to circumvent the administrative procedures established by Congress to address complaints before judicial relief is available.

Counsel for Plaintiff
Paul G. Wallach
1455 Pennsylvania Ave. NW, Suite 1000, Washington DC 20004
(202) 393-0800

Counsel for Defendant
Michael A. McCord
Land and Natural Resources Division
Department of Justice, Washington DC 20530
(202) 633-2000

[17 ELR 20286]

Oberdorfer, J.:

Memorandum

Plaintiff seeks a preliminary injunction which would require defendant Reuter Laboratories Inc., ("Reuter") to cease sales of certain pesticide products. According to plaintiff, defendant Reuter secured the Environmental Protection Agency ("EPA") registration of these products by use of research data submitted to EPA by plaintiff in support of its application for registration of its own virtually identical pesticide. Plaintiff invokes 7 U.S.C. § 136a(c)(1)(D) which, plaintiff claims, granted it exclusive use for 10 years of data that it submitted in support of its application. Plaintiff claims that it is likely to prevail on the merits of its contention that defendant's registration is illegal. Plaintiff also asserts it will suffer irreparable injury in the form of lost sales and consequently will lose necessary financing.

Defendants respond that plaintiff is unlikely to prevail on its merits, that it has failed to exhaust its administrative remedy, and that it is not threatened with irreparable injury.

It is unnecessary to reach the merits because plaintiff has obviously failed to exhaust the administrative remedy. 40 C.F.R. § 152.99 (1985) provides a specific procedure for an original submitter in the stance of plaintiff to petition the EPA to cancel a registration. Plaintiff's conference with agency counsel is no substitute for such a petition. Moreover, this Court must respectfully decline to follow the decision of the District Court for the Northern District of Indiana in Eli Lilly & Co. v. E.P.A., 615 F. Supp. 811, 818 (1985). That court ruled that the plaintiff there could sue under 7 U.S.C. § 136n(c) to cancel a competitor's registration without exhausting the administrative process. The court recognized that 7 U.S.C. § 136n(a) allowed private citizens to bring suits to obtain the suspension or cancellation of a registration after they had exhausted their administrative remedies. Indeed, it quoted a Senate Agriculture and Forestry Committee Report which

describ[ed] this provision [§ 136n(a)] as one which "would authorize third parties to petition for cancellation or suspension and obtain judicial review."

S. Rep. No. 838, 92d Cong., 2d Sess, reprinted in 1972 U.S. Code Cong. & Ad. News 3993, 4003. However, the Indiana court failed to draw the obvious conclusion from this legislative history: there is an administrative remedy for an agency refusal to cancel a registration and it is subject to district court review by authority of 7 U.S.C. § 136n(a). See Athlone Industries v. Consumer Product Safety Commission, 707 F.2d 1485, 1488 (D.C. Cir. 1983).

The plaintiff should not be allowed to by-pass the procedures developed by Congress by proceeding directedly in federal court under § 136n(c). This is especially true in light of the federal defendants' representation, at oral argument, that the agency would determine whether it would deny plaintiff's petition within 30 days after it is filed.

Accordingly, the motion for preliminary injunction must be denied. Nor is there any useful purpose to be served by prolonging this litigation at this time. Accordingly, the oral motions of the defendants, made at the November 14, 1986 hearing, to dismiss the complaint will be granted and the complaint dismissed.

Order

For the reasons stated in the accompanying memorandum, it is this 18th day of November, 1986, hereby

ORDERED: that the plaintiff's motion for a preliminary injunction should be, and is hereby, DENIED; and it is further

ORDERED: that the defendants' motion to dismiss the complaint without prejudice should be, and is hereby, GRANTED; and it is further

ORDERED: that the complaint in this action should be, and is hereby, DISMISSED.