United States Court of Appeals,

                                 Fifth Circuit.

                                  No. 95-50060.

 TEXAS 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.

                                 April 30, 1996.

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

Before REYNALDO G. GARZA, JOLLY and DUHÉ, 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

                                           1
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,


                                         2
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, 

, 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, 

, 137, 

, 520-21, 116


                                   

(1991);   

.

     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.


     1
      The circuit courts have divided on the issue of
aggregation. The United States Court of Appeals for the Sixth
Circuit, in National Truck Equipment Association v. National
Highway Traffic Safety Administration, ruled that aggregation is
appropriate where an association's members received significant
benefits from affiliating with the association in the litigation.

(6th Cir.1992). In contrast, the United States
Court of Appeals for the Ninth Circuit, in Love v. Reilly, held
that where an association is a legitimate party with standing in
litigation, the fact that an ineligible constituent member
benefitted from the litigation does not preclude an EAJA fee
award to the association. 

, 1494 (9th Cir.1991).

                                 4
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

     2
      Because of this carve out, non-profits and agricultural
cooperatives qualify for an EAJA fee award even if their net
assets exceed $7 million.
     3
      Senator DeConcini remarked that:

          In the West, and I suspect in other parts of the
          country, small farmers often band together to form
          agricultural cooperatives. They have often been
          considered as a unit particularly in determining their
          assets for insurance and borrowing purposes. Such
          aggregate treatment would cause the whole cooperative
          to exceed the [then] $5 million limitation.

     Reauthorization of EAJA, Hearing Before the Subcomm. on
     Administrative Practice and Procedure of the Senate Comm. on
     the Judiciary, 98th Cong., 1st Sess. 17 (April 14, 1983).
     4
      USDA also notes that Congress has clarified the definition
of "party" since enacting EAJA, to express its intent that a
local labor union's "entitlement to fees should be determined
without regard to the assets and/or employees of the
international union with which the local is affiliated."
H.R.Rep. No. 99-120, 99th Cong., 1st Sess. at 17., reprinted in
1985 U.S.S.C.A.N. 132, 146.

                                     5
"§    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

       5
      Congress may have been motivated by its desire to preserve
the assets of non-profits for charitable purposes and to maintain
the assets of cooperatives for use in farmer cooperative

                                           6
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, 

, 566, 

, 2550-51, 

(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,

, 744 (5th Cir.1995) (citing Connecticut Nat'l Bank v.

Germain, 

, 

, 

(1992)).

      Notwithstanding    this      cardinal    canon        of     statutory



ventures, however the net worth of these entities might be
calculated. See Gregory C. Sisk, The Essentials of the Equal
Access to Justice Act: Court Awards of Attorney's Fees for
Unreasonable Government Conduct, 55 La.L.Rev. 217, 360 (1995).
      6
      Significantly, the proof of aggregation that USDA offers
does not support the particular aggregation rule it advances: to
determine an association's EAJA eligibility, the net worth and
number of employees of an association's constituent members are
aggregated; an association is ineligible for EAJA fees if either
aggregate figure exceeds the statutory limitations. Section
2412(d)(2), however, excepts agricultural cooperatives and
tax-exempt organizations only from the net worth ceiling, not the
employment size limitation. Clearly, this limited exception
cannot support an implicit rule requiring the aggregation of
employees and assets.

                                    7
construction—that the words of a statute will be given their plain

meaning absent ambiguity—USDA contends that an implicit aggregation

rule also is necessary in order to avoid a result "that is plainly

at variance with the policy of the legislation as a whole."

Congress intended in EAJA, USDA argues, to reduce the financial

deterrent only to small entities in litigating against the United

States;     it did not intend fee awards to extend to associations

like    NAWGA,    whose    membership       includes    multi-billion   dollar

corporations      that    have   bountiful    coffers    from   which   to   pay

attorneys'      fees.     Such   an   "absurd   result"    is   avoided,     USDA

maintains, by recognizing an implicit aggregation rule.

       Because we think that judicial inquiry into the applicability

of § 2414(d)(2)(B) must begin and must end with § 2414(d)(2)(B)'s

clear and unambiguous words, we also reject USDA's contention that

aggregation will effect Congress' intent.              The statute's purpose,

by its plain language, is to make associations eligible for an

award     on     the     basis   of    each     association's     independent

qualifications—not the qualifications of its constituent members.

Congress surely understood that "associations" are made up of

constituent members, some more wealthy and larger than others, yet

who have joined together to further a common business purpose.                 It

is not implausible that Congress would think it appropriate to

treat associations qua associations instead of atomizing the body

politic of each association, then inspecting and distinguishing

each component member to determine whether each is individually

eligible.      Neither is it inconceivable that Congress envisioned an


                                        8
association as the only viable vehicle for certain small businesses

to prosecute their claims against the United States.             In order to

deny the benefits of an EAJA award to an association's wealthy,

ineligible members, USDA would have us unfairly exclude from EAJA's

clear reach an association's eligible members.

     USDA also fails to recognize that any implicit aggregation

rule may well have application to entities other than associations.

Section     2412(d)(2)   lists   as   eligible   parties   the    owners   of

unincorporated businesses, as well as partnerships, corporations,

and units of local government.        Although we expressly do not pass

on the question, we find it unlikely that Congress intended an

implicit aggregation rule to apply to these entities.             Congress,

for example, presumably did not intend that the courts determine a

corporation's eligibility for a fee award by reference to the

assets and employees of the corporation's individual shareholders.

         In sum, we believe that the statute's plain language provides

no basis for the aggregation requirement that the government would

have us engraft.7        Accordingly, we AFFIRM the district court's

     7
      We also reject USDA's related argument that NAWGA is
ineligible for a fee award because NAWGA's members received a
"free ride" in the APA litigation. In State of Louisiana, Ex.
Rel. Guste v. Lee, we held that in special circumstances,
participation in litigation by an eligible party may make an EAJA
award for other eligible parties unjust. 

, 1225
(5th Cir.1988). This is so where the claimant for attorneys'
fees is an eligible party who takes a "free ride" through
litigation by joining an ineligible party who is "fully willing
and able to prosecute the action against the United States." 

we concluded that "if the ineligible party's
participation is nominal or narrow, then the eligible parties
should not be denied the access that Congress sought to ensure by
enacting the EAJA." 

of EAJA fees to NAWGA in the amount of $163,083.75.

       AFFIRMED.

       REYNALDO G. GARZA, Circuit Judge, dissenting:

       The majority would allow a trade association representing

billion dollar corporations to receive an award of attorneys' fees

under the Equal Access to Justice Act ("EAJA").               Because such a

ruling ignores the intent of Congress to lessen the burden for

small economic     entities   to   seek   review   of   or   defend   against

unreasonable governmental actions, I respectfully dissent.

       The majority relies on a plain-meaning approach to conclude

that      the      National-American           Wholesale           Grocers'

Association/International      Foodservice    Distributors       Association

("NAWGA") has met the eligibility requirements for attorneys' fees

under EAJA, 28 U.S.C. § 2412(d)(2)(B)(ii).         NAWGA was a prevailing

party against the government, had a net worth less than $7 million

and fewer than 500 employees, and funded the litigation.              At first

glimpse, NAWGA apparently qualifies for an award.            I agree with the

majority that the text is paramount but I also agree with them that

when strict adherence to the words of a statute "[leads] to absurd

or futile results," the Court should "look[ ] beyond the words to

the purpose of the act."           United States v. American Trucking

Associations, 

, 543, 

, 1064, 

(1940) (footnote omitted). Even "when the plain meaning [does] not



            As USDA concedes, the "free-rider" analysis in Guste is
       limited to suits prosecuted against the United States by
       co-plaintiffs who both are eligible and ineligible,
       respectively, for EAJA fees, a situation not present here.

                                     10
produce absurd results but merely an unreasonable one "plainly at

variance with the policy of the legislation as a whole,' " the

Court should "follow[ ] the purpose rather than the literal words."

should construe the language of EAJA to "give

effect to the intent of Congress."            

60 S.Ct. at 1063

(footnote    omitted).    We   should    avoid    an   interpretation      that

violates the intent of Congress to open the court to small economic

entities in litigation with the government.1           Considering the text

and purpose, I believe that an award to NAWGA, which is clearly

acting on behalf of its megalithic members, is an unreasonable

and/or absurd result.     In support of my assertion, I would adopt

the reasoning and result of a Sixth Circuit decision, National

Truck Equip. v. National Hwy. Safety Admin., 

, 673-674

(6th Cir.1992), which considered the problem currently before this

panel.

      In   National   Truck   Equip.,    an    association   of   truck    part

manufacturers had successfully overturned an agency safety rule on

procedural grounds and requested fees under EAJA.            

   The

Sixth Circuit concluded that aggregation of the net worth and

number of employees of trade association members is required when


      1
      NAWGA has admitted on appeal that its members include
Supervalu Inc. ($12.57 billion in revenues and 42,000 employees),
Fleming Companies, Inc. (sales of $12.93 billion and 22,900
employees), SYSCO Corp. ($8.9 billion and 23,000 employees), and
Kraft Foodservice, Inc. (sales of $120 million and 300
employees). See Standard and Poor's Register of Corporations,
Directors, and Executives 1994 (covering 1993, the pertinent
year).

                                    11
those associations are primarily representing the interests of

their members.        

     The truck parts association was not

entitled to fees because the aggregate net worth and number of

employees of its members exceeded the eligibility standards.               

text of EAJA, the Sixth Circuit noted that

Congress specifically exempted three types of associations from the

net   worth       requirement    (agricultural     cooperatives,     non-profit

organizations and certain local unions).                 

  The

exemptions chosen suggest that Congress was aware that aggregation

could render these types of organizations ineligible.2                Congress

made a policy choice to exempt them from the net worth requirement.

While     these     exemptions    do   not   use   the    word   "aggregation,"

legislative history is informative.


      2
      In 1985, Congress clarified the definition of "party" as it
applies to "associations" in § 2412(d)(2)(B)(ii) to exempt
certain local unions from the net worth requirement if they are
separate from their international union affiliates by law.
H.R.Rep. No. 99-120, 99th Cong., 1st Sess. at 17, reprinted in
1985 U.S.C.C.A.N. 132, 146. The House Committee's statement on
this provision supports an aggregation requirement:

              It is the Committee's intent that if the local union is
              to be considered to be a separate labor organization
              for purposes of the Labor Management Reporting and
              Disclosure Act of 1959, it should be considered to be a
              separate organization for purposes of EAJA as well, and
              the local's entitlement of fees should be determined
              without regard to the assets and/or employees of the
              international union with which the local is affiliated.

      

an exemption here if the district court is
      to look merely at a discrete association without considering
      that association's affiliation. NAWGA is in a similar
      position to the local union with regard to NAWGA members.
      NAWGA is its members when it acts solely in their interest.
      Those members' net worth and number of employees should be
      considered in that situation when determining eligibility.

                                        12
     Senator DeConcini explained the exemption for agricultural

cooperatives in the following way:

     In the West, and I suspect in other parts of the country,
     small farmers often band together to form agricultural
     cooperatives.   They have often been considered as a unit
     particularly in determining their assets for insurance and
     borrowing purposes. Such aggregate treatment would cause the
     whole cooperative to exceed the [then] $5 million limitation.

Reauthorization     of     EAJA,   Hearing        Before    the    Subcomm.   on

Administrative Practice and Procedure of the Senate Comm. on the

Judiciary, 98th Cong., 1st Sess. 17 (April 14, 1983) (emphasis

added).     While the majority dismisses this piece of legislative

history, the Senator's comment seems to indicate that the net worth

of association members should be aggregated unless that type of

organization is exempted.3

     An association such as NAWGA functions like an agricultural

cooperative    whose     members   join      in   common    economic     efforts.

However, Congress provided these cooperatives with exemption from

net worth limits to avoid aggregation.              Because Congress created

waivers expressly for certain groups, we can properly presume that

Congress did not intend to exempt all associations from the net

worth    aggregation     requirement;        expressio     unius   est   exclusio

alterius.     Leatherman v. Tarrant County Narcotics Intelligence &

Coordination Unit, 

, 167-68, 

, 1163, 

(1993).       Congress must thus have intended aggregation



     3
      The analysis in this dissent is limited to aggregation as
it would apply to associations. Whether other entities would be
affected by an aggregation rule is not before us, as noted by the
majority.

                                        13
of net worth for other associations.4              National Truck 

.      Presumably, aggregation would still apply to the

employee number limit since none of the entities listed in EAJA

were granted exemption from that limit.

      Supporting the above conclusions are the Model Rules adopted

by the Administrative Conference of the United States, applicable

in   agency   adjudications,       which    interpret    virtually   identical

language to that in 28 U.S.C. § 2412(d)(2)(B).                  See 5 U.S.C. §

504(b)(1)(B)      (costs     and     fees      awards     in    administrative

adjudications).        Model Rule 0.104(f) states in part:            "The net

worth and number of employees of the applicant and all of its

affiliates     shall    be   aggregated       to    determine    eligibility."

(emphasis added).       The commentary to the rule explains that "[t]he

intent of Congress in passing the EAJA was to aid truly small

entities rather than those that are part of a larger group of

affiliated firms." Administrative Conference of the United States,

Equal Access to Justice Act:          Agency Implementation, 46 Fed.Reg.

32900, 32903 (1981).

      Model Rule 0.104(g) states:           "An applicant that participates

in a proceeding primarily on behalf of one or more persons or

entities that would be ineligible is not itself eligible for an

award." 46 Fed.Reg. 32900, 32912 (emphasis added). The commentary

to this rule addresses the issue of trade associations as follows:

      4
      Even if the agricultural exemption were insufficient to
establish by implication a statutory aggregation rule, at the
very least it creates an ambiguity, allowing this Court to
consider the policy and purpose of EAJA. The purpose of EAJA is
served by an aggregation rule.

                                       14
     Trade associations may sometimes become involved in litigation
     on their own account (e.g., as employers) as well as in the
     interests of their own membership. On reflection, we believe
     the best way of handling this situation is through the
     provision on participation on behalf of others.        When a
     proceeding involves a trade association independent of its own
     membership, the association's eligibility should be measured
     individually like any other applicant's; when an association
     is representing primarily the interests of its members, the
     agency can examine the facts of the particular situation."

46 Fed.Reg. at 32903.

     The Model Rules and commentary discussed above reflect the

policy of the statute.       One can hardly dispute that the purpose of

the Equal Access to Justice Act was "to ease the burden upon small

businesses of engaging in litigation with the federal government."

Unification Church v. INS, 

, 1082 (D.C.Cir.1985).                As

the Eighth Circuit noted, "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."        SEC v. Comserv, 

, 1415-1416 (8th

Cir.1990).    See also Pub.L. No. 96-481, § 202, 94 Stat. 2325 (1980)

("It is the purpose of this title—to diminish the deterrent effect

of seeking review of, or defending against, governmental action by

providing in specified situations an award of attorney fees ...

against the United States.").

     Congress was not likely concerned that a trade association

wholly financed by its large corporate members would be deterred

from litigation.      EAJA reveals Congress's "desire not to subsidize

... the purchase of legal services by large entities easily able to

afford legal services."          Unification 

.

Under the     logic   of   the   majority,   any   large   industrial       group

                                      15
(petroleum, automobile manufacturing, etc ...) could set up and

fund an association separate from itself that would readily meet

EAJA's limits on net worth and employees even though its individual

members or members in the aggregate would not.              EAJA was not

intended to fund the litigation of corporate Goliaths in the

costume of David.

     We thus are not compelled to reach the result advocated by the

majority.    Based on statutory analysis, reference to legislative

policy,     and   commentary   in   an   identical    provision   in   the

Administrative Conference Model Rules, I would hold that awarding

EAJA fees to NAWGA was improper without consideration of NAWGA's

members' net worth and number of employees.          As the Sixth Circuit

stated in Nat'l Truck Equip.,

     When businesses have the economic power to pursue litigation
     against the government without being deterred by the costs,
     the congressional purposes of the EAJA are undermined by an
     award to those businesses.    The same result occurs when a
     trade association's membership also contains a number of
     companies who can readily afford the costs to protect their
     own 

.

     I would reverse and remand for the district court to determine

whether NAWGA primarily represents its own interests or those of

its members.      If NAWGA is primarily representing the interests of

its members, the district court should then aggregate the net worth

and employees of those members to determine the association's

eligibility.      Given that NAWGA has conceded that it has at least

one ineligible member, I suspect that NAWGA would be ineligible for




                                    16
fees.5




     5
      I disagree with the majority that aggregation would be
unfair to eligible members of an association. What financial
deterrent exists for a trade group when the members' combined net
worth exceeds $7 million or when that group has members with
billions in assets? Such a group is likely both willing and able
to defend itself against government actions absent EAJA fee
awards.

                               17