Free Order on Motion to Amend/Correct/Modify - District Court of Colorado - Colorado

Case 1:04-cv-00762-RPM

Document 30

Filed 11/23/2005

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IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLORADO Senior District Judge Richard P. Matsch Civil Action No. 04-cv-00762-RPM J. DAVID EVANS and BERNITA M. EVANS, Plaintiffs, v. ANN M. VENEMAN, Secretary, United States Department of Agriculture, Defendant.

ORDER DENYING PLAINTIFFS' MOTION TO ALTER OR AMEND

On November 8, 2005, the plaintiffs filed " Plaintiffs'Motion to Alter or Amend Court Order Dated November 1, 2005 Denying Attorney Fees and Costs for Administrative Proceedings"requesting an award of attorney' fees and costs for administrative proceedings s which preceded the filing of this civil action as well as Civil Action No. 99-M-2331 involving the same parties. In Civil Action No. 99-M-2331, the plaintiffs sought a ruling that the Farm Service Agency (" FSA" misapplied the applicable statute and misinterpreted the contract between the ) parties, and challenged an appraisal value used by the FSA. By order dated August 29, 2001, this court found the NAD Director' decision as to the application of the statute and contract was s correct but that his decision as to the FSA appraisal was not supported by substantial evidence and remanded the matter for further proceedings consistent with the court' opinion. By order s dated January 28, 2002, this court denied the plaintiffs' application for attorney' fees and s

Case 1:04-cv-00762-RPM

Document 30

Filed 11/23/2005

Page 2 of 2

expenses because, among other things, they were not the prevailing parties. That order is equally applicable to the plaintiffs' current motion seeking an award of fees and costs for the proceedings which preceded Civil Action 99-M-2331. The plaintiffs'motion is also denied as this action was not a judicial review of an adversary adjudication within the provisions of 5 U.S.C. § 504 and 28 U.S.C. § 2412 but a proceeding to compel agency action. It is therefore ORDERED that Plaintiffs'Motion to Alter or Amend filed November 8, 2005 is denied. Dated: November 23rd, 2005.

BY THE COURT: s/Richard P. Matsch Richard P. Matsch, Senior District Judge

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