Texas Food Industry Ass'n v. U.S. Dept. of Agriculture, 95-50060

Citation81 F.3d 578
Decision Date30 April 1996
Docket NumberNo. 95-50060,95-50060
PartiesTEXAS FOOD INDUSTRY ASSOC., National-American Wholesale Grocers' Assoc./International Foodservice Distributors Assoc., National Grocers Assoc., Plaintiffs-Appellees, v. UNITED STATES DEPARTMENT OF AGRICULTURE, Defendant-Appellant.
CourtUnited States Courts of Appeals. United States Court of Appeals (5th Circuit)

John R. Fleder, Washington, DC, David L. Durkin, Washington, DC, David L. Orr, Kuperman, Orr, Mouer and Albers, Austin, TX, for plaintiffs-appellees.

Katherine S. Gruenheck, Washington, DC, William Kanter, United States Department of Justice, Civil Division, Washington, DC, Frank W. Hunger, Office of the United States Attorney General, Civil Division, Appellate Staff, Washington, DC, Michael Jay Singer, United States Department of Justice, Civil Division, Appellate Staff, Washington, DC, James H. DeAtley, Austin, TX, for defendant-appellant.

Appeal from the United States District Court for the Western District of Texas.

Before REYNALDO G. GARZA, JOLLY and DUHE, Circuit Judges.

E. GRADY JOLLY, Circuit Judge:

The National-American Wholesale Grocers' Association/International Foodservice Distributors Association ("NAWGA") is a national trade association comprised of over 200 wholesale grocery distribution companies, a number of which are multi-billion dollar corporations. NAWGA prevailed in litigation against the United States. It now seeks an award of attorneys' fees under the Equal Access to Justice Act ("EAJA"), 28 U.S.C. § 2412 et. seq. EAJA limits eligibility for a fee award to entities based on net worth and number of employees. The sole question presented by this appeal is whether eligibility of a trade association for an EAJA award is determined by reference to the assets and size of the association itself or whether the association's eligibility additionally hinges on the assets and size of its constituent members. We conclude that, under the plain language of the statute, an association's eligibility for a fee award under EAJA § 2412(d)(2)(B) depends only on the association's net worth and size, and we affirm the district court's award of attorneys' fees and expenses in the amount of $163,083.75 to NAWGA.

I

NAWGA incurred the attorneys' fees at issue when it and two other meat and poultry industry trade associations (together, the "Trade Associations") brought this action on behalf of their members to delay implementation of an interim final rule promulgated by the United States Department of Agriculture ("USDA"). The interim rule, which required packages of meat to contain safe handling and preparation instructions, provided only for a 30-day, post-rule comment period. USDA solicited no comments prior to its promulgation of the interim rule.

In the merits phase of this action, the Trade Associations challenged USDA's failure to comply with the notice and comment requirements of the Administrative Procedure Act (the "APA"), 5 U.S.C. § 553. In October 1993, the district court entered judgment for the Trade Associations, finding that USDA violated the APA and preliminarily enjoining it from enforcing the interim rule. USDA then issued a proposed rule in conformity with the APA. Following a full comment period, USDA published a final rule on March 28, 1994, imposing essentially the same labelling requirements. The Trade Associations then moved to dismiss their action against USDA as moot. The district court granted dismissal on May 31, 1994.

On June 30, 1994, NAWGA, which financed the APA litigation for itself and its co-plaintiffs out of its general operating budget, alone applied for attorneys' fees under EAJA, 28 U.S.C. § 2412(d). It is this phase of the case that is at issue on this appeal. USDA vigorously contested NAWGA's eligibility for an EAJA award, contending, among other things, that NAWGA, which employs only 36 full-time employees and has a net worth of approximately $3.3 million, exceeded EAJA's eligibility limitations for net worth and size. To be eligible for a fee award, an association must employ no more than 500 employees and have a net worth of not more than $7 million. 28 U.S.C. § 2412(d)(2)(B)(ii). NAWGA was ineligible for an EAJA award, USDA argued, because § 2412(d)(2)(B)(ii) requires the aggregation of the net worth and size of a trade associations' individual members when the association is representing primarily the members' interests in litigation. USDA also argued that NAWGA is ineligible for a fee award because the individual ineligible members of the Trade Associations would receive a "free ride" if the costs of the APA litigation is paid for under EAJA.

The district court rejected USDA's aggregation and "free rider" arguments and awarded NAWGA fees and expenses in the amount of $163,083.75. USDA filed a timely notice of appeal from the EAJA award on the question of NAWGA's eligibility for fees.

II

We review the conclusions of law underlying a denial of attorneys' fees de novo. Perales v. Casillas, 950 F.2d 1066, 1072 (5th Cir.1992). Because EAJA is a partial waiver of sovereign immunity, it must be strictly construed in the government's favor. Ardestani v. INS, 502 U.S. 129, 137, 112 S.Ct. 515, 520-21, 116 L.Ed.2d 496 (1991); Perales, 950 F.2d at 1076.

Whether the aggregation of the net worth and size of an association's members is required when determining the association's eligibility for a fee award is a question of the proper interpretation of § 2412(d)(2)(B)(ii). 1 A prevailing party is eligible for fees and expenses only if he meets the statutory definition of a party:

(d)(2) For purposes of this subsection--

(B) "party" means ... (ii) any owner of an unincorporated business, or any partnership, corporation, association, unit of local government, or organization, the net worth of which did not exceed $7,000,000 at the time the civil action was filed, and which had not more than 500 employees at the time the civil action was filed; except that an organization described in section 501(c)(3) of the Internal Revenue Code of 1986 (26 U.S.C. 501(c)(3)) exempt from taxation under section 501(a) of such Code, or a cooperative association as defined in section 15(a) of Agricultural Marketing Act (12 U.S.C. 1141(j)(a)), may be a party regardless of the net worth of such organization or cooperative association * * *.

28 U.S.C. § 2412(d)(2) (emphasis added).

NAWGA urges us to accept the district court's construction of § 2412(d)(2) that a prevailing association is a "party" if it meets the provision's bright-line rule for eligibility, and nothing more. Although USDA concedes that "neither the language of the statute nor the legislative history explicitly directs aggregation of the net worth and number of employees of an association's members," it nevertheless contends that structure of § 2412(d)(2)(B) betrays an implicit aggregation requirement that is applicable here.

As support for its construction, USDA points out that § 2412(d)(2) explicitly exempts agricultural cooperatives and non-profit organizations from EAJA's net worth limit. 2 Citing Senator DeConcini's post-enactment explanation of the provision, 3 USDA characterizes this treatment of agricultural cooperatives and non-profits as a waiver of the statute's "implicit net worth aggregation requirement." From these "exceptions" 4 and the statutory canon expressio unius est exclusio, USDA concludes that " § 2412(d)(2)(B)(ii) should be construed to exempt from the aggregation requirement only the ... types of associations specifically referred to by Congress, and no others."

We examine first the language and structure of EAJA to determine the proper meaning of the term "party." Section 2412(d) provides that attorneys' fees shall be awarded to prevailing parties and explicitly includes in the definition of a party any "association, ... the net worth of which did not exceed $7,000,000 at the time the civil action was filed, and which had not more than 500 employees at the time the civil action was filed." § 2412(d)(2)(B). This language is clear and unambiguous. Nowhere does it limit EAJA's application only to associations whose members individually are eligible for EAJA fees. Instead, it imposes a ceiling only on the net worth and size of the association itself. It was open to Congress to include additional limitations on eligibility, such as the aggregation rule that USDA advocates, but Congress did not do so.

We are unpersuaded, moreover, that EAJA's special eligibility rule for agricultural cooperatives and non-profit organizations is evidence of an implicit aggregation rule. Neither the statute nor its legislative history suggest that the special eligibility rule for agricultural cooperatives and non-profits was motivated by concerns about ineligibility resulting from the aggregation of employees and assets. 5 Indeed, this rule does not even address the subject of "aggregation"; instead, it allows a single agricultural cooperative or a single nonprofit organization to qualify for an EAJA fee award regardless of the singular net worth of that entity. 6

Neither are we persuaded, on the basis of Senator DeConcini's statement, that this special eligibility rule is to be construed as a waiver of some implicit aggregation requirement. As the Supreme Court has made clear, post-enactment legislative history does not control a statute's interpretation. Pierce v. Underwood, 487 U.S. 552, 566, 108 S.Ct. 2541, 2550-51, 101 L.Ed.2d 490 (1988). In sum, we are unable to discern in the unadorned words of § 2142(d)(2)(B) an unwritten aggregation requirement. As we have stressed repeatedly, we must "presume that a legislature says in a statute what it means and means in a statute what it says." U.S. v. Meeks, 69 F.3d 742, 744 (5th Cir.1995) (citing Connecticut Nat'l Bank v. Germain, 503 U.S. 249, 112 S.Ct. 1146, 117 L.Ed.2d 391 (1992)).

Notwithstanding this cardinal canon of statutory construction--that the words of a statute will be given their plain meaning absent...

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