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IMPRO PRODS. v. BLOCK

August 12, 1983

IMPRO PRODUCTS, INC., Plaintiff,
v.
John R. BLOCK, Secretary of Agriculture, Defendant



The opinion of the court was delivered by: CORCORAN

 CORCORAN, District Judge.

 Before the Court is plaintiff's application for attorneys' fees and expenses pursuant to the Equal Access to Justice Act ("EAJA" or "Act"), as codified in 28 U.S.C. § 2412. Defendant has opposed, asserting that (1) plaintiff is not entitled to fees and expenses for any activity occurring prior to the effective date of the Act -- October 1, 1981, (2) this action sounds in tort and is thereby excluded from the Act's coverage, (3) the position of the United States in litigation was substantially justified, (4) the special circumstances of this case render an award of fees unjust, (5) the defendant agency did not act in bad faith, and (6) plaintiff should receive compensation, if at all, only for a fraction of the legal time and effort claimed, inasmuch as plaintiff did not prevail on every issue and much of the legal work was redundant, unnecessary and wasteful.

 Because we have been thoroughly briefed by both sides on all the issues presented, plaintiff's attorneys have submitted a detailed accounting of their legal work performed in this case, and defendant has had an opportunity to inspect and comment on counsel's actual billing records, a hearing is not necessary to evaluate, fairly and adequately, plaintiff's application and the government's objections thereto.

 For the reasons set forth below, we do not agree with defendant's objections, and will, therefore, grant plaintiff's request for reimbursement under the EAJA. We have, however, culled plaintiff's request of time spent on unnecessary, irrelevant or redundant legal work. We have also adjusted the requested hourly rates in accordance with the guidelines provided in the Act.

 I. BACKGROUND

 Plaintiff, the manufacturer of an animal biologic called "Whey Antibody Blend" ("Whey Blend"), commenced this action on June 4, 1981. *fn1" Plaintiff alleged, inter alia, that (1) a scientific test conducted on Whey Blend by defendant's Animal Research Service ("ARS") at Beltsville, Maryland, in 1966-67, was unreliable and fallacious, and (2) an article authored by ARS scientists purporting to describe the test and its findings, first published in the August, 1970, issue of the American Journal of Veterinary Research ("Journal Article"), and thereafter circulated up to the date of the complaint, was false, misleading and caused a deprivation of plaintiff's rights secured by the Fifth Amendment to the Constitution. Asserting a right to relief under the Administrative Procedure Act ("APA"), 5 U.S.C. §§ 551 et seq., as well as the Fifth Amendment, plaintiff sought (1) a declaration that the test was faulty and invalid, and that the Journal Article was false, deceptive and inaccurate, and (2) an injunction prohibiting further "distribution of, and reliance upon, the test and the article . . . regarding the test." Complaint, Prayer for Relief at para. 2.

 Defendant filed an answer on September 24, 1981, in which he denied the material allegations listed above and asserted five affirmative defenses, viz., (1) failure to state a claim upon which relief can be granted, (2) laches, (3) lack of standing, (4) non-justiciability, and (5) unclean hands. Defendant also asserted two counterclaims against plaintiff. Taken together they sought a declaration that the sale and distribution of plaintiff's product in interstate commerce, without a license, was in violation of the Virus, Serum and Toxin Act of 1913 ("VST Act"), 21 U.S.C. §§ 151-58.

 By separate rulings dated April 7, May 5, June 25 and July 9, 1982, we rejected the five defenses asserted and dismissed the counterclaims as improperly brought.

 The case was thereafter tried before the Court on July 12-16, 1982. On July 28, 1982 we ruled that it was within the discretion of the defendant whether and how to conduct the Beltsville test, and that the scientific validity of it was not subject to judicial scrutiny. Thus, the only issue left to be decided was whether the Journal Article accurately reflected the conduct and the results of the test.

 By Memorandum and Order dated September 2, 1982, we concluded that the Journal Article did contain several false and misleading statements, and that defendant's release of the article in that form to laymen was arbitrary, capricious and an abuse of discretion. Accordingly, we issued a permanent injunction prohibiting further release of the Journal Article absent editorial amendment to correct the deficiencies.

 Plaintiff thereafter filed the instant application for fees and expenses.

 II. DISCUSSION

 A. Entitlement to Award Under ...


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