The 7th Circuit of Chicago ruled that 3 truckers, William Culligan, Adam Burnett and Douglas Oldham, cannot recover attorneys’ fees after successfully challenging the electronic monitoring of hours of service that were logged by companies with consistent safety violations.

In June 2012, carriers that exceed 10% of non-complience with the hours of service rules were to be required to install electronic on-board recorders, a decision that is being reviewed.

The 3 drivers and OOIDA petitioned the federal appeals court for review, claiming that the monitors would prevent truckers from using their own discretion to gauge fatigue and that EROB’s harass drivers.

The OOIDA petition states, Following this court’s decision, respondent FMCSA embarked on a policy of encouraging motor carriers to require drivers to use electronic monitoring devices to record their hours-of-service without taking any steps to ensure that the devices are not used to harass drivers,

According to Land Line Magazine,  “the response OOIDA filed, the Association outlined a pattern of harassment by ATA member motor carriers revealed in a survey conducted by OOIDA’s Foundation. OOIDA’s response also counters ATA’s assertion that the AOBRD regulation permits the use of electronic on-board recorders.”

The 7th Circuit struck down the truckers and OOIDA’s claim in September 2011, stating the claim failed to address how the EOBR’s harass driver; however 7th Circuit recently vacated the electronic on-board recorder regulation, the agency continued allowing use of the devices. That encouragement and promotion amounts to blatant disregard for the court’s Aug. 26, 2011, decision, according to OOIDA’s court filing.

Following the  ruling, the three individual truck drivers petitioned for an award of attorneys’ fees and costs under the Equal Access to Justice Act, which allows successful litigants to recover fees from successful litigation against the United States under certain circumstances; however, the law firm representing the drivers billed OOIDA.

In addition, the attorney who represented the truckers, Paul Cullen, did not meet with the truckers, he met with OOIDA who acted on their behalf.

The court argued that this fee arrangement made OOIDA  eligible for reimbursement; however, OOIDA could not join the fee petition because it is too large an organization to be eligible under the statute.

“To determine when a fee award is appropriate, the court must bear in mind the purpose of the EAJA,” Wood wrote

According to Land Line, “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,” Wood stated. “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.”