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

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ARGUED DECEMBER 1 AND 2, 2009

Before POSNER, FLAUM, and SYKES, Circuit Judges.

We have consolidated for decision three appeals, argued before the same panel on consecutive days, that require interpretation of the Equal Access to Justice Act. The Act entitles a party that prevails in litigation with the United States (including proceedings for judicial review of agency action) to attorneys’ fees “unless the court finds that the position of the United States was substantially justified.” 28 U.S.C. § 2412(d)(1)(A). The issue in each appeal is whether the government’s position was “substantially justified,” but in No. 09-2421, with which we begin, there is an additional issue-whether attorneys’ fees paid to a defendant’s liability insurer can be awarded under the Act. The district judge awarded TWM (Thouvenot, Wade & Moerschen) some $200,000 in attorneys’ fees; its liability insurer paid for its defense and so will receive $150,000 because the policy specified a $50,000 deductible.

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