The Honorable Joan B. Gottschall, of the United States 

District Court for the Northern District of Illinois, sitting by

designation.

In the

United States Court of Appeals

For the Seventh Circuit

No. 10-2340

OWNER-OPERATOR INDEPENDENT DRIVERS

ASSOCIATION, INC., et al.,

Petitioners,

v.

FEDERAL MOTOR CARRIER SAFETY ADMINISTRATION,

Respondent.

Petition for Review of an Order of the 

Federal Motor Carrier Safety Administration.

No. FMCSA-2004-18940 

SUBMITTED FEBRUARY 13, 2012—DECIDED APRIL 2, 2012

Before ROVNER and WOOD, Circuit Judges, and

GOTTSCHALL, District Judge.

WOOD, Circuit Judge. In our opinion on the merits

in this case, we vacated a final rule issued by the Federal
2 No. 10-2340

Motor Carrier Safety Administration (FMCSA) about

the use of electronic monitoring devices in commercial

trucks. Owner-Operator Independent Drivers Ass’n v.

Federal Motor Carrier Safety Admin., 656 F.3d 580 (7th Cir.

2011). Three of the petitioners, William J. Culligan, Adam

D. Burnett, and Douglas Oldham, each of whom is a

commercial truck driver, now seek attorneys’ fees and

costs under the Equal Access to Justice Act (EAJA).

FMCSA opposes the award. It argues that these individual drivers are not entitled to fees because the

fourth petitioner, Owner-Operator Independent Drivers

Association (OOIDA), which is not included in the fee

petition, is the only party responsible for paying the

attorneys’ fees incurred in the prosecution of the petition

for review. After examining the relevant arrangements,

we agree with FMCSA that the individual petitioners

are not entitled to the requested fees.

The EAJA provides that a court must award fees and

costs incurred by the prevailing party unless the position

of the United States was substantially justified or that

special circumstances make the award unjust. 28 U.S.C.

§ 2412(d)(1)(A). There is no question that the petitioners

prevailed when we vacated the rule that they challenged

in their petition for review. The EAJA defines a party

as “an individual whose net worth did not exceed

$2,000,000 at the time the civil action was filed” or, as

relevant here, an “organization, the net worth of which

did not exceed $7,000,000 at the time the civil action

was filed.” 28 U.S.C. § 2412(d)(2)(B). The individual

petitioners represent that they all meet the net worth

requirements, and we have no reason to question that
No. 10-2340 3

statement. We infer, however, that OOIDA does not

meet the qualifications of a “party” for purposes of a

fee award under the EAJA, because it has not joined in

the fee petition.

We recently noted the problem of the “stand-in litigant”—that is, someone who litigates in the place of

a party that is ineligible for an award of fees under

the EAJA either because of size or wealth, where the

ineligible party pays the attorneys’ fees for the stand-in.

United States v. Thouvenot, Wade & Moerschen, Inc., 596

F.3d 378, 383 (7th Cir. 2010), citing SEC v. Comserv Corp.,

908 F.2d 1407, 1416 (8th Cir. 1990). In order to address

that concern, we must examine the details of the relationship between the petitioners and their counsel. Each

of the individual petitioners in our case entered into a

separate fee arrangement with the same law firm. In

those agreements, the firm committed not to charge

fees and costs to the individual driver. OOIDA had a

separate agreement with the same law firm; its agreement binds it to pay all of the fees and costs associated

with this case. FMCSA argues that the net effect of these

arrangements prevents the individual petitioners from

meeting their burden to establish that they are solely

responsible for the fees. The court, it says, must look

beyond the names on the fee petition and ascertain

who is the real party in interest with respect to fees. See

Unification Church v. INS, 762 F.2d 1077, 1081 (D.C. Cir.

1985). The petitioners acknowledge that they bear the

burden of proving eligibility for fees under the EAJA,

Sosebee v. Astrue, 494 F.3d 583, 587 (7th Cir. 2007), but

they reply that the EAJA requires only that they estab-
4 No. 10-2340

lish that they are “prevailing parties” as defined in the

Act. See Nail v. Martinez, 391 F.3d 678, 682-83 (5th Cir.

2004) (rejecting the “real party in interest” test based on

its conclusion that Congress specifically defined “party”

and there is no justification for further defining an

eligible party).

FMCSA points out that the D.C. Circuit’s decision in

Unification Church did not take such a simplistic approach. The plaintiffs there are similar to the petitioners before us—an organization and three individuals. The parties in Unification Church had agreed that

the organization would pay the fees. This fact led the

court to conclude that the individual plaintiffs had

nothing at stake in the award of fees, for the straightforward reason that the ineligible organization was

solely responsible for paying them. Unification Church,

762 F.2d at 1082-83. The petitioners respond that the

D.C. Circuit later remarked that the essential consideration in Unification Church was the existence of a fee arrangement among the plaintiffs. AARP v. EEOC, 873

F.2d 402 (D.C. Cir. 1989). The AARP court looked to

whether there was some relationship or agreement

among some or all of the plaintiffs, either explicit or

implicit, permitting a plaintiff who would not qualify

for an award to receive free legal services if its side were

to prevail. Id. at 405. In the present case, petitioners

conclude, the three truck drivers each had a separate

and independent attorney/client relationship with counsel and each signed a separate retention agreement.

Because there was no umbrella fee arrangement “among”

all of the petitioners, there is nothing to prevent each

petitioner from receiving fees.
No. 10-2340 5

In our view, this line of argument shaves things

too finely. The absence of an agreement among the

parties may be one piece of evidence, but it does not

end the inquiry by itself. AARP held that a variety

of factors are pertinent. It explained that a court “should

consider whether there is one counsel representing

several plaintiffs of disparate size or wealth, especially

where the size or wealth of one or more of those

plaintiffs would likely disqualify it from recovering

fees under the EAJA,” how long and when counsel

has been and became counsel of record for each

plaintiff, the appearances and representations made by

the various attorneys on behalf of their respective

clients, and whether some plaintiffs retained pro bono

counsel. Each of these considerations would throw

light on the ultimate question whether “a plaintiff

pursued counsel independent of the stimulus of a large

or wealthy plaintiff.” AARP, 873 F.2d at 405-06.

Applying that approach to our case, we see first that

the individual petitioners are obviously of disparate

size and wealth as compared to OOIDA. The absence of

the organization from the fee petition is explainable only

by the natural assumption that it is not eligible for

fees under the statute. OOIDA and the individual petitioners were represented by the same law firm throughout this litigation. Counsel of record, attorney Paul

Cullen, lists on the petitioners’ fee petition that he

has served as General Counsel to OOIDA and has represented the association and its members for over

20 years. There is no indication that attorney Cullen

had an attorney/client relationship with the individual
6 No. 10-2340

petitioners before the current litigation. FMCSA also

points out that the attorney time records submitted

with the petition catalogue numerous instances in

which counsel conferred with OOIDA, but there are

no entries reporting communications with the three

individuals. These factors all support the conclusion

that the relationship between the petitioners is such

that the individual petitioners are not eligible for a

fee award. Even if the petitioners did not have an

explicit fee arrangement among themselves, their fee

arrangements with the same law firm—a firm that had

represented OOIDA for over 20 years—resulted in an

implicit arrangement whereby the ineligible organization paid the full amount of the fees and costs and

the individual drivers were not responsible for any payment.

Our conclusion here should not be understood as

a holding that the answer to the question whether a

party is directly liable for the payment of attorneys’ fees

is always dispositive with respect to eligibility for an

EAJA award. For example, we recently explained that

an award of attorneys’ fees under the EAJA can include

fees incurred by the party’s liability insurer, because

the party had contracted with the insurance company

to pay premiums in exchange for the insurance company’s bearing the defense costs. Thouvenot, 596 F.3d at

383. Accord Ed A. Wilson, Inc. v. General Services Admin.,

126 F.3d 1406 (Fed. Cir. 1997). Similarly, courts have

awarded fees where the prevailing party is represented

by a legal services organization or counsel appearing

pro bono. AARP, 873 F.2d at 406; Watford v. Heckler, 765
No. 10-2340 7

F.2d 1562, 1567 n.6 (11th Cir. 1985); Cornella v. Schweiker,

728 F.2d 978, 987 (8th Cir. 1984). In contrast, courts have

denied fees under the EAJA in situations where an employer paid the attorneys’ fees on behalf of its employees. The Fourth Circuit held that five former employees

were not eligible for an award of EAJA fees when the

company was legally obligated to indemnify them for

their attorneys’ fees. United States v. Paisley, 957 F.2d

1161 (4th Cir. 1992). To similar effect, the Eighth Circuit

held that a corporate officer was not eligible for an

EAJA award when the company’s insurance policy reimbursed the company for its indemnification of its

officers and directors. Comserv, 908 F.2d at 1414-15.

To determine when a fee award is appropriate, the

court must bear in mind the purpose of the EAJA. In

reconciling one decision awarding fees with a decision

denying eligibility for fees where none of the

prevailing parties had paid out-of-pocket expenses, the

Eighth Circuit concluded that “[t]he lesson we draw

from these two cases is that EAJA awards should be

available where the burden of attorneys’ fees would have

deterred the litigation challenging the government’s

actions, but not where no such deterrence exists.”

Comserv, 908 F.2d at 1415-16. We agree with that practical

approach. The critical concern underlying the common

precondition that the fee claimant must have incurred

the expense is the need to assure that the employee

would not have been deterred from pursuing the suit

had the EAJA not existed. Paisley, 957 F.2d at 1164. As

we put it before, “[t]he purpose of the EAJA is to

eliminate the financial disincentive for people to chal-
8 No. 10-2340

lenge unreasonable governmental actions.” Krecioch v.

United States, 316 F.3d 684, 686 (7th Cir. 2003), citing

Sullivan v. Hudson, 490 U.S. 877, 883-84 (1989). The intent

of the EAJA is to assist individuals or small entities, not

to subsidize large entities that are better able to afford

legal services. Unification Church, 762 F.2d at 1081. To

hold otherwise would raise “[t]he possibility of one

client using another to obtain fees otherwise unavailable

under the Act.” Id. at 1083.

In this case, we conclude that the purpose of the

EAJA would not be served by awarding fees to the individual petitioners. Financial considerations would not

have deterred the individual drivers from pursuing

this action, because they are not liable for payment of

the attorneys’ fees even if no fees are awarded by this

court. Accordingly, we DENY the petitioners’ motion

for attorneys’ fees.

4-2-12