Eli Lilly and Co. v. EPA

• Decision Date: 26 July 1985
• Docket Number: No. IP 83-1862-C.,IP 83-1862-C.
• Citation: 615 F. Supp. 811
• Parties: ELI LILLY AND COMPANY, Plaintiff, v. ENVIRONMENTAL PROTECTION AGENCY, Lee M. Thomas, Administrator, Environmental Protection Agency, Aceto Chemical Company, Inc., Defendants.
• Court: U.S. District Court — Southern District of Indiana

615 F. Supp. 811

ELI LILLY AND COMPANY, Plaintiff, v. ENVIRONMENTAL PROTECTION AGENCY, Lee M. Thomas, Administrator, Environmental Protection Agency,^* Aceto Chemical Company, Inc., Defendants.

No. IP 83-1862-C.

United States District Court, S.D. Indiana, Indianapolis Division.

July 26, 1985.

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J.B. King, Indianapolis, Ind., for plaintiff.

Robert McLaughlin, Office of Gen. Counsel, U.S. E.P.A., Lawrence R. Liebesman, U.S. Dept. of Justice, Washington, D.C., for defendants EPA and Thomas.

Gary K. Harris, Washington, D.C., George A. Rubin, Indianapolis, Ind., for Aceto.

ENTRY

DILLIN, District Judge.

This cause is before the Court upon the motions of the Environmental Protection Agency (EPA) and the Aceto Chemical Company, Inc. (Aceto) to dismiss for lack of subject matter jurisdiction and for failure to state a claim upon which relief can be granted. For the following reasons, those motions are granted in part and denied in part.

Memorandum of Law

Eli Lilly and Company (Lilly) filed this lawsuit against Aceto, the EPA, and the EPA's administrator. Lilly has alleged that this action arises under the Constitution of the United States and the Federal Insecticide, Fungicide, and Rodenticide Act (FIFRA), 7 U.S.C. § 136 et seq., as amended. Lilly further alleges that this Court has jurisdiction over the subject matter of this case pursuant to 28 U.S.C. § 1331 and 7 U.S.C. § 136n(c).

The EPA and Aceto have sought to have this action dismissed through motions filed on May 21, 1985, and June 5, 1985, respectively. This Court is required to dismiss an action whenever it appears by suggestion of the parties, or otherwise, that the Court lacks jurisdiction of the subject matter. Rule 12(h)(3), F.R.Civ.P.

COUNT I

Count I of Lilly's complaint alleges that the EPA, in issuing and maintaining registrations of certain pesticide products of Aceto, considered health, safety, and efficacy data submitted earlier by Lilly, without Lilly's permission and without requiring Aceto to offer to compensate Lilly for the use of its data. Lilly also contends that the EPA considered previously submitted Lilly trade secret data in support of the pertinent Aceto registrations, without Lilly's permission. Finally, Lilly alleges that the EPA relied on Lilly research data to issue and maintain the pertinent Aceto registrations without determining that the relevant Lilly and Aceto products are analytically comparable (i.e., identical or substantially similar or different only in ways that would not significantly increase the risk of unreasonable adverse effects on the environment). Lilly makes no constitutional challenges to FIFRA in this count of its complaint, but rather contends that the above alleged EPA actions violate the statute itself.

Of course, on a motion to dismiss, the factual allegations of the complaint are to be taken as true, the complaint being construed in the light most favorable to the plaintiff. Mathers Fund, Inc. v. Colwell Co., 564 F.2d 780, 783 (7th Cir.1977).

Subject Matter Jurisdiction

It is not enough for Lilly to rely simply on § 1331 to establish subject matter jurisdiction against the EPA as to this count; when consent to sue the United States is granted, the precise terms, conditions, and qualifications of such consent must be scrupulously followed. Coleman v. United States Bureau of Indian Affairs, 715 F.2d 1156, 1161 (7th Cir.1983). Consequently, Lilly brings this suit also pursuant to 7 U.S.C. § 136n(c). The defendants characterize Lilly's action as a "citizen suit," and maintain that, as such, it must be dismissed.

Defendants are correct that, despite the apparently clear language of § 136n(c), private citizens, acting as such, may not bring direct actions against the EPA in order to seek enforcement of FIFRA. This is because Congress considered and explicitly rejected amendments which would have provided for classic "citizen suits," including suits by private citizens against the EPA Administrator for failure to perform nondiscretionary duties or for failure to investigate and prosecute violations. Fiedler v. Clark, 714 F.2d 77, 79 (9th Cir.1983) (holding there to be no private right of action under FIFRA); see also In Re Agent Orange Product Liability Litigation, 635 F.2d 987, 991 n. 9 (2nd Cir.1980) (affirming district court determination that there is no private right of action under FIFRA), cert. denied, 454 U.S. 1128, 102 S.Ct. 980, 71 L.Ed.2d 116 (1981).

If Lilly were bringing this action only in its capacity as a private citizen concerned, as generally all citizens are, with the potential adverse environmental impact of certain pesticide misuse, then the action would have to be dismissed as a congressionally prohibited citizen suit. Lilly, however, is not bringing this suit as simply a private citizen, but rather as a FIFRA registrant. Such distinctions are not unknown to the law under FIFRA. In Kelley v. Butz, 404 F.Supp. 925, 940-41 (W.D.Mich.1975), the court distinguished between a group of private citizens and a state Attorney General acting for all of the people of Michigan, in exercising jurisdiction over a suit brought by the latter against the EPA under FIFRA, despite the bar it recognized to exist against private citizen suits.

Without necessarily accepting the distinction made in Kelley, supra, we believe that a very clear distinction can, and must, be made between a suit brought by a private citizen (or group of citizens), and a suit brought by a registrant under the Act which seeks to enforce certain FIFRA provisions which uniquely concern that registrant, as a registrant.

Count I constitutes such a "registrant suit." The issue now to be decided is whether a registrant suit, as opposed to a citizen suit, is permitted by FIFRA, or more specifically by § 136n(c).

The Court begins with the well settled principle that "the starting point for interpreting a statute is the language of the statute itself. Absent a clearly expressed legislative intention to the contrary, that language must ordinarily be regarded as conclusive." Consumer Product Safety Comm'n v. GTE Sylvania, 447 U.S. 102, 108, 100 S.Ct. 2051, 2056, 64 L.Ed.2d 766 (1980). Section 136n(c) provides that: "The district courts of the United States are vested with jurisdiction specifically to enforce, and to prevent and restrain violations of, this subchapter."

Based upon the plain wording of this statute, it would seem clear that this Court is vested with jurisdiction over Lilly's Count I claims. It is so clear, in fact, that other courts, without substantive analysis, have exercised subject matter jurisdiction over suits brought by registrants which statutorily challenge certain EPA actions or inactions as violative of FIFRA. Amchem Products, Inc. v. G.A.F. Corp., 594 F.2d 470 (5th Cir.1979); Rohm & Haas Co. v. E.P.A., 525 F.Supp. 921 (E.D.Pa.), aff'd 651 F.2d 176 (3d Cir.1981); Mobay Chemical Corp. v. Costle, 447 F.Supp. 811, 814 n. 2 (W.D.Mo.1978), appeal dismissed, 439 U.S. 320, 99 S.Ct. 644, 58 L.Ed.2d 549 (1979), modified, 517 F.Supp. 252 (W.D.Pa. 1981), aff'd sub nom. Mobay Chemical Corp. v. Gorsuch, 682 F.2d 419 (3d Cir.), cert. denied, 459 U.S. 988, 103 S.Ct. 343, 74 L.Ed.2d 384 (1982); Dow Chemical Co. v. Train, 423 F.Supp. 1359, 1363 (E.D.Mich. 1976).

However, in well argued briefs in this case, defendants urge that this Court lacks jurisdiction pursuant to § 136n(c) over this action, despite that provision's apparent straightforward grant of subject matter jurisdiction. We have been persuaded to look beyond the face of the statute to determine if Lilly is jurisdictionally barred from pursuing its Count I claims in this action.

The Supreme Court has identified four factors which are relevant in determining whether a private remedy is implicit in a statute which does not provide one. Cort v. Ash, 422 U.S. 66, 95 S.Ct. 2080, 45 L.Ed.2d 26 (1975).

1 is the plaintiff "one of the class for whose especial benefit the statute was enacted," ...? 2 is there any indication of legislative intent, explicit or implicit, either to create such a remedy or to deny one? ... 3 is it consistent with the underlying purposes of the legislative scheme to imply such a remedy for the plaintiff? ... 4 is the cause of action one traditionally relegated to state law, in an area basically the concern of the States, so that it would be inappropriate to infer a cause of action based solely on federal law?

Id. at 78, 95 S.Ct. at 2088 (emphasis in original, citations omitted).

Lilly, as a registrant, is one of a class for whose especial benefit FIFRA was enacted. See e.g., S.Rep. No. 838, 92d Cong., 2d Sess., reprinted in 1972 U.S. Code Cong. & Ad.News 3993, 3998 ("Giving applicants proprietary rights in their test data will encourage applicants to spend the money necessary to test their products fully and assure their safety."). Of course, it cannot be said that FIFRA was not also especially enacted for the benefit of all private citizens in general, including nonregistrants. Id. ("All of these provisions are designed to provide for tighter control of pesticide registration and use to insure protection to man and the environment.") Just because all of mankind meets the first Cort factor, does not mean that pesticide registrants do not also meet it. In fact, this first factor may even be more favorably applied to FIFRA registrants because they constitute a much more particularized class than does "man." At any rate, suits by private citizens have been prohibited under FIFRA primarily by the operation of the second Cort factor, to which we now turn.

Our review of FIFRA and its legislative history discloses no indication, either explicit or implicit, of an intention on the part of Congress to deny registrants under that Act a private remedy such as that sought in Count I of this action. Congress did reject a "citizen suits" amendment due, in great part, to its concern that such an...