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Civil Procedure — EAJA

By: WISCONSIN LAW JOURNAL STAFF//April 3, 2012//

Civil Procedure — EAJA

By: WISCONSIN LAW JOURNAL STAFF//April 3, 2012//

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United States Court of Appeals For the Seventh Circuit

Civil

Civil Procedure — EAJA

Prevailing parties who are not personally liable to pay their attorney fees are not entitled to recover under the EAJA.

“[T]he 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 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.”

Petition Denied.

10-2340 Owner-Operator Independent Drivers Association, Inc., v. FMCSA

Petition for Review of an Order of the Federal Motor Carrier Safety Administration, Wood, J.

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