797 F.2d 740 (9th Cir. 1986), 83-4258, Merrell v. Block

Docket Nº:83-4258.
Citation:797 F.2d 740
Party Name:Paul E. MERRELL, Plaintiff-Appellant, and Oregon Coast Range Residents, Bonnie Hill and Tony Hill, et al., Plaintiffs- Intervenors, v. J.R. BLOCK, Secretary, United States Department of Agriculture, William Clark, Secretary, United States Department of the Interior, and Acting Administrator, United States Environmental Protection Agency, Defendants
Case Date:August 15, 1986
Court:United States Courts of Appeals, Court of Appeals for the Ninth Circuit
 
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797 F.2d 740 (9th Cir. 1986)

Paul E. MERRELL, Plaintiff-Appellant,

and

Oregon Coast Range Residents, Bonnie Hill and Tony Hill, et

al., Plaintiffs- Intervenors,

v.

J.R. BLOCK, Secretary, United States Department of

Agriculture, William Clark, Secretary, United States

Department of the Interior, and Acting Administrator, United

States Environmental Protection Agency, Defendants-Appellees.

No. 83-4258.

United States Court of Appeals, Ninth Circuit

August 15, 1986

Argued and Submitted July 10, 1985.

Opinion Withdrawn Feb. 5, 1987.

See 809 F.2d. 639

Mike Axline, Eugene, Or., for plaintiff-appellant.

Albert M. Ferlo, Jr., Atty. U.S. Dept. of Justice, Washington, D.C., for defendants-appellees.

Appeal from the United States District Court for the District of Oregon.

Before BROWNING and ALARCON, Circuit Judges, and STEPHENS, Senior District Judge [*].

STEPHENS, District Judge:

On April 15, 1981, Paul Merrell filed a complaint pro se for declaratory and injunctive relief against the United States Forest Service, the Bureau of Land Management and the Environmental Protection Agency. Merrell's complaint alleged that the defendants had violated the National Environmental Policy Act (NEPA), 42 U.S.C. Section 4321, et seq., because they had conducted an annual herbicide spraying program near his home in the Siuslaw National Forest without adequately assessing and disclosing the effects of the spraying on human health.

On April 14, 1983, on cross-motions for summary judgment, the district court decided that the federal defendants had violated the NEPA. The court entered an

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order enjoining the defendants from aerial spraying until they complied with the research and disclosure requirements of the NEPA. The defendants appealed the district court's final judgment. After retaining counsel, Merrell filed a cross-appeal on the merits of the case.

On June 20, 1983, Merrell filed an application in the district court for fees and expenses under the Equal Access to Justice Act (EAJA), 28 U.S.C. Section 2412(d)(1)(A), for his time spent and costs accrued in litigating in the district court. The district court denied his application on September 13, 1983, finding that the EAJA does not authorize attorneys fees to pro se litigants. The court also decided that fees were inappropriate since the government's position was substantially justified. Merrell brought a separate appeal on the denial of fees and expenses.

On January 27, 1984, another panel of this court affirmed the district court's finding that the defendants were in violation of the NEPA, but remanded the case to allow the district court to expand its injunction to include...

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