PUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

PAUL A. BLACKBURN,
Petitioner,

v.
                                                                     No. 95-1166
ROBERT B. REICH, SECRETARY OF
LABOR; METRIC CONSTRUCTORS,
INCORPORATED,
Respondents.

On Petition for Review of an Order
of the United States Department of Labor.
(86-ERA-4)

Argued: October 31, 1995

Decided: March 26, 1996

Before HALL and WILLIAMS, Circuit Judges, and BUTZNER,
Senior Circuit Judge.

_________________________________________________________________

Vacated and remanded by published opinion. Judge Hall wrote the
majority opinion, in which Senior Judge Butzner joined. Judge Wil-
liams wrote a dissenting opinion.

_________________________________________________________________

COUNSEL

ARGUED: William Reynolds Williams, WILLCOX, MCLEOD,
BUYCK & WILLIAMS, P.A., Florence, South Carolina, for Peti-
tioner. Paul Frieden, UNITED STATES DEPARTMENT OF
LABOR, Washington, D.C., for Respondents. ON BRIEF: Thom-
as S. Williamson, Jr., Solicitor of Labor, Gail V. Coleman, Deputy
Associate Solicitor, William J. Stone, Counsel for Appellate Litiga-
tion, UNITED STATES DEPARTMENT OF LABOR, Washington,
D.C., for Respondent Secretary.

_________________________________________________________________

OPINION

HALL, Circuit Judge:

Paul A. Blackburn seeks review of the Secretary of Labor's final
decision that denied attorney's fees for the prosecution of a prior
appeal to this court. We vacate the Secretary's decision and remand
for reconsideration of Blackburn's fee petition.

I

Metric Constructors, Inc., was an independent contractor that per-
formed construction work at a nuclear power plant in South Carolina.
Blackburn, an electrician with Metric, was fired on September 5,
1984, for his refusal to work at the plant unless protective lead shield-
ing was put in place at the worksite. He filed a complaint against Met-
ric with the Secretary of Labor under the employee protection
provisions of the Energy Reorganization Act (ERA), 42 U.S.C.
§ 5851 (1988)1. After finding a violation and ordering Metric to rein-
state Blackburn, the Secretary remanded the case to an administrative
law judge (ALJ) for a determination of back pay, compensatory dam-
ages, and attorney's fees.

The ALJ recommended an award of back pay covering the period
of September 5, 1984, through December 31, 1987, compensatory
damages of $10,000 for emotional distress and mental anguish, and
attorney's fees and costs. Both parties filed exceptions to the recom-
_________________________________________________________________
1 The statute was amended extensively in 1992, although the portions
of the statute that are relevant to this appeal, subsections (b)(2)(B)
through (g), remained unchanged. See Pub. L. 102-486, Title XXIX,
§ 2902(a)-(g), (h)(2), (3). We are dealing with the pre-amendment ver-
sion here.

                     2
mendations. In a decision issued October 30, 1991, the Secretary
determined that back pay could not be awarded for the period after
December 31, 1984, when Metric lost the contract for work at the
nuclear plant. With regard to compensatory damages, the Secretary
viewed Blackburn's claim as being based on the stress resulting from
"diminished financial situation brought about because of his inability
to find a job following his termination from Metric." Finding that
Blackburn had not suffered any financial loss as a result of his termi-
nation, the Secretary ruled that an award for emotional distress was
inappropriate. Blackburn sought review in this court.2 42 U.S.C.
§ 5851(c)(1).

We affirmed the decision with regard to the back pay award. We
held, however, that injuries, such as loss of self esteem arising from
the termination itself, could justify an award of compensatory dam-
ages despite the absence of adverse financial consequences. Accord-
ingly, we remanded to the Secretary for a redetermination of
compensatory damages. Blackburn v. Martin, 982 F.2d 125 (4th Cir.
1992) (Blackburn I).

On August 16, 1993, the Secretary ordered Metric to pay $5,000
in compensatory damages. Two weeks later, Blackburn filed a peti-
tion for costs and attorney's fees covering the period from November
15, 1991, through August 27, 1993. On December 27, 1994, the Sec-
retary awarded attorney's fees and costs for Blackburn's lawyers'
efforts after the remand in Blackburn I, but he denied all fees and
costs incurred in relation "to preparing and conducting the appeal" to
this court. The denial was expressly based on the Secretary's view
that he does not have the statutory authority to award fees for work
performed before an appellate court. Blackburn now appeals this fee
ruling.

II

42 U.S.C. § 5851(b)(2)(B) provides that, if an order is entered
granting relief to a person who has suffered discrimination in viola-
tion of the ERA, the Secretary
_________________________________________________________________
2 Blackburn did not seek review of the Secretary's decision with regard
to attorney's fees and costs.

                    3
          shall assess against the person against whom the order is
          issued a sum equal to the aggregate of all costs and expenses
          (including attorneys' and expert witness fees) reasonably
          incurred, as determined by the Secretary, by the complainant
          for, or in connection with, the bringing of the complaint
          upon which the order was issued.

The Secretary's ruling was expressly based on the majority opinion
in DeFord v. Secretary of Labor, 715 F.2d 231 (6th Cir. 1983), which,
the Secretary reasoned, "squarely held that neither the court nor the
Secretary is authorized under the ERA to award costs, including attor-
ney's fees, for proceedings on appeal to the court of appeals." As a
matter of statutory interpretation, our review is de novo.3
_________________________________________________________________
3 Although the Secretary now contends that we should give deference
to his interpretation of the statute under the rule announced in Chevron,
U.S.A., Inc. v. Natural Resources Defense Council, Inc., 467 U.S. 837
(1984), the decision to deny appellate fees was apparently based not on
his interpretation of the statute but, rather, on his belief that he was
required to follow the holding in DeFord. The order on appeal reads in
relevant part:

          Based on Deford, I disallow the entries[in the fee petition] that
          relate to preparing for and conducting the appeal. Contrary to
          Complainant's arguments, the court in DeFord squarely held that
          neither the court nor the Secretary is authorized under the ERA
          to award costs, including attorney's fees, for proceedings on
          appeal to the court of appeals.[ ] The Secretary has applied this
          holding in other cases arising under analogous statutes. See
          Spinner v. Yellow Freight Sys., Inc. . . . On the other hand, con-
          trary to Respondent's position, DeFord does not foreclose an
          award of fees incurred by a complainant in proceedings before
          the Secretary on remand.

(Spinner, which does contain a cf. citation to DeFord, did not involve
attorney's fees for appellate work, and the holding in DeFord was in no
way "applied".) Deford, which predated Chevron, does not mention,
much less give deference to, whatever the Secretary's view of the statute
was in 1984. Because the Secretary based his decision in the instant case
on judicial precedent rather than his own interpretation of the statute, we
owe "no more deference than we would any lower court's analysis of the
law." Thomas Hodgson & Sons, Inc. v. F.E.R.C. , 49 F.3d 822, 826 (1st
Cir. 1995).

                    4
A

Although the DeFord majority's analysis is not entirely clear, we
understand it to proceed as follows: Section 5851(b)(2)(B) allows the
Secretary to award attorney's fees as part of "costs and expenses", and
the court of appeals clearly should award "costs" to the party prevail-
ing on appeal (presumably under Fed. R. App. p. 39); therefore, the
Secretary and the court have mutually exclusive authority to award
"costs" for the portions of the case at the different levels, and the Sec-
retary's cost-awarding authority (which includes his fee-awarding
authority) is limited to the administrative sphere"as a jurisdictional
or quasi-jurisdictional matter." Id. at 232. The DeFord majority also
noted that, while the "costs and expenses" under § 5851 had to be
"for, or in connection with, the bringing of the complaint" against the
employer, the appeal in that case involved a "distinguishable cause--
complaints against the Secretary arising out of dissatisfaction with his
order." Id. at 233. Neither prong of this rationale withstands scrutiny.

In this circuit, "[t]he only costs generally taxable in the court of
appeals are: (1) the docketing fee if the case is reversed; and (2) the
cost of printing or reproducing briefs and appendices, including
exhibits." Internal Operating Procedures (IOP) 39.1. Other costs asso-
ciated with an appeal, such as the fee for preparing the record, are tax-
able in the district court. Fed. R. App. P. 39(e); IOP 39.1. Thus, in
the usual case, two levels--the district court and the court of appeals
--are satisfying the entitlement to "costs" incident to the appeal.
There is, in short, no impenetrable barrier between the various levels
of the court system as far as costs are concerned, and, as a general
matter, we see no problem whatsoever with permitting the Secretary
to award appeal-related "costs" when the appeal is from an agency to
the court of appeals.4

The other basis for the holding in DeFord is that the appeal
involved a dispute with the Secretary rather than the respondent-
employer and, therefore, on appeal the complainant"did not incur any
attorneys' fees or other costs for litigation of claims arising from the
complaint . . . ." Id. at 233. Every appeal arises from dissatisfaction
_________________________________________________________________
4 In Blackburn I, neither party filed a bill of costs with the clerk of the
court of appeals.

                     5
with the order appealed from, and, in that sense, every appeal
involves a dispute with the decisionmaker. But it was Metric's suc-
cessful litigation position at the administrative level that necessitated
Blackburn's first appeal, and, as we explain below, the legal fees
incurred in pursuing that appeal were every bit as"in connection
with" his claim as were the fees for the administrative efforts.5

B

The Secretary raises some additional arguments not addressed in
DeFord, one of which looks to the arrangement of the subsections in
§ 5851 for support. Section 5851(b) authorizes the Secretary to enter
remedial orders that may include reinstatement, back pay, and com-
pensatory damages. The next three subsections relate directly to any
such orders: Subsection (c) provides for review of the Secretary's
order in the court of appeals, subsection (d) gives the Secretary the
right to file a separate action in district court to enforce its order, and
subsection (e) gives the individual complainant the right to file a sep-
arate enforcement action in district court. Only subsections (b) and
(e), however, contain specific provisions for attorney's fees, and the
Secretary argues that the absence of a similarly specific provision in
(c) evinces Congressional intent to limit his authority to award fees
to the administrative proceedings alone. To whatever degree this
arrangement tilts in favor of the Secretary's position, it is far from
enough to overcome other, brighter indicators of Congressional intent.6
_________________________________________________________________

5 As far as attorney's fees are concerned, the situation would be pre-
cisely the same had Blackburn I involved an appeal by Metric from, say,
the Secretary's decision awarding four months' back pay. Blackburn
would have had to defend the award, yet, under the Secretary's reason-
ing, he would have been unable to recoup attorney's fees expended to
uphold the award.

6 It should be obvious that it is necessary to have at least the two fee
provisions that are in the statute. Because the enforcement action is a
separate action that is initiated in the district court and which never
comes before the Secretary, a separate authorization to award fees,
directed to the district court rather than the Secretary, was necessary in
(e).

                     6
At the core of much of the Secretary's argument is the premise that
"[t]he bringing of a complaint under the whistleblower provision of
the ERA is a completely separate action from filing a petition for
review under that provision." Respondent's brief at 12. Were this
actually the case, we might be persuaded that the Secretary is pre-
cluded from awarding appellate fees. But an appeal is simply one step
in the overall adjudicatory scheme, not a "separate action." See
DeFord, 715 F.2d at 233 ("[R]eview in the Court of Appeals is not
a new action . . . . [I]t is simply a continuation of the action before
the Secretary.") (Merritt, J., dissenting). A semantically and logically
more defensible interpretation of the phrase "in connection with the
bringing of the complaint" is "in connection with the claim"; very
simply, all litigation-related efforts should be compensable.

C

The overarching purpose of the statute--the protection of
whistleblowers--militates against an interpretation that would make
anti-retaliation actions more difficult to maintain. In Local 17,
Internat'l Ass'n of Heat and Frost Insulators v. Young, 775 F.2d 871
(7th Cir. 1986), the court of appeals affirmed an award of attorney's
fees to plaintiffs for successfully resisting the defendants' petition for
certiorari to the Supreme Court, despite the absence of any specific
statutory language giving the lower court the authority to award fees
for appellate work. In finding that Congress intended that the lower
court have such authority, the appeals court emphasized the overall
purpose of the statutory scheme at issue:

          If disgruntled union members, as prevailing plaintiffs,
          were forced to incur costs for unsuccessful, fruitless Union
          appeals, this would have a chilling effect on union mem-
          bers' ability to afford challenging the union leadership. Situ-
          ations would develop where union officials could willfully
          violate the law, yet recognize an inability on the part of their
          membership to challenge the Local hierarchy in court due to
          a lack of funds. . . . [D]ue to the uneven bargaining positions
          of the parties, the purpose of the LMRDA would be frus-
          trated.

                     7
Id. at 873. The same rationale should apply with equal or greater
vigor in the realm of nuclear safety.7

D

The Secretary's final argument is a variation on the others: "When
Congress wants to award attorney's fees and costs for judicial review,
it knows how to do so." Respondent's brief at 16. The Secretary has
not pointed us to any statutory scheme wherein attorney's fees are
recoverable for some, but less than all, the litigation expenses in a sin-
gle action. Quite the opposite appears to be the general rule; if fees
are authorized at all, they are recoverable for all phases of the litiga-
tion, and, moreover, appellate fees can be awarded by a lower court.
See, e.g., Goodwin v. Metts, 973 F.2d 378, 384-85 (4th Cir. 1992) (per
curiam) (reviewing appellate fees awarded under 42 U.S.C. § 1988 by
the district court); McManama v. Lukhard, 616 F.2d 727, 730 (4th
Cir. 1980) (per curiam) (remanding to the district court "for assess-
ment of additional attorneys' fees . . . to compensate the plaintiffs for
the expense of their successful defense of [defendant's] appeal").

The authorities cited by the Secretary do not hold otherwise. In
both Roosevelt Campobello International Park Commission v.
U.S.E.P.A., 711 F.2d 431 (1st Cir. 1983), and Key Tronic Corp. v.
United States, 114 S. Ct. 1960 (1994), the issue was whether attor-
ney's fees could be awarded at all for a distinct type of action.8 Nei-
ther of these cases holds that attorney's fees may be recoverable for
work related to only one of the various levels of a given contested
case.
_________________________________________________________________
7 Blackburn's lawyers claimed some $10,000 in fees for the appeal in
Blackburn I. The prospect of an unrecoverable expenditure of this mag-
nitude, particularly when balanced against the level of recovery involved
in this case, illustrates how the threat of an appeal could well diminish
a complainant's chances of achieving full relief under the statute.
8 In Roosevelt Campobello, the issue was whether fees could be
awarded to persons who initiated a petition for review in the court of
appeals under 42 U.S.C. § 1369(b). In Key Tronic, the issue was whether
litigation-related attorney's fees expended in a contribution action could
be deemed a recoverable "necessary cost of response" under
§ 107(a)(4)(B) of CERCLA.

                     8
III

We hold that attorney's fees related to prosecuting an appeal before
the court of appeals are "costs . . . incurred . . . in connection with
[ ] the bringing of [a] complaint" under § 5851(b), and, therefore, the
Secretary has the authority to award such fees. We vacate the Secre-
tary's final decision and remand with instructions to reconsider
Blackburn's third fee petition in light of the foregoing opinion.

VACATED AND REMANDED

WILLIAMS, Circuit Judge, dissenting:

I respectfully dissent. The majority concludes that the Secretary has
the authority to award attorneys' fees and expenses incurred in an
appeal because the costs of the appeal were incurred"in connection
with" the bringing of a complaint under the Energy Reorganization
Act (ERA). See 42 U.S.C.A. § 5851(b)(2)(B) (West 1995). In reach-
ing its conclusion, the majority improperly applies a de novo standard
of review to the Secretary's interpretation of § 5851(b)(2)(B), when
in fact we should apply the test enunciated by the Supreme Court in
Chevron, U.S.A., Inc. v. Natural Resources Defense Council, Inc., 467
U.S. 837, 842-43 (1984). Under Chevron, I conclude that the Secre-
tary's interpretation is a permissible construction of a statutory provi-
sion whose meaning is clarified by neither the statutory language nor
the legislative history. Additionally, disregarding the majority's incor-
rect standard of review, I believe that the majority's conclusion is
supported by flawed reasoning.

I.

The majority departs from controlling Supreme Court and Fourth
Circuit precedent, and incorrectly conducts a plenary review of the
Secretary's interpretation of the statute. See majority op. at 4 ("As a
matter of statutory interpretation, our review is de novo."). Although
de novo review is appropriate when reviewing the construction of a
statute by an Article I or III court, see, e.g. , United States v. Hall, 972
F.2d 67, 69 (4th Cir. 1992), the Supreme Court in Chevron has
directed a different standard for review of an administrative agency's

                     9
interpretation of a statute or regulation, see Bechtel Constr. Co. v.
Secretary of Labor, 50 F.3d 926, 932-33 (11th Cir. 1995) (applying
the Chevron analysis to the Secretary's interpretation of a provision
under the ERA because of the Supreme Court's recognition of the
Secretary's expertise in employee protection).1 Under Chevron, we
_________________________________________________________________
1 The majority contends that deference under Chevron is inappropriate
under the reasoning of Thomas Hodgson & Sons, Inc. v. FERC, 49 F.3d
822 (1st Cir. 1995), "[b]ecause the Secretary based his decision . . . on
judicial precedent rather than his own interpretation of the statute."
Majority op. at 4 n.3. Basically, the majority asserts that the Secretary
reached his decision based "on his belief that he was required to follow
the holding in Deford," majority op. at 4 n.3, rather than by applying his
expertise in employee protection and choosing to adopt the construction
of the Sixth Circuit. I cannot agree with the majority's assertion that the
Secretary believed he was bound by DeFord; therefore, I conclude that
deference to the Secretary is required under Chevron.

The reasoning behind the majority's justification for not applying
Chevron contains a number of fatal flaws. First, the language the major-
ity employs in defending its application of a de novo standard is quite
equivocal: The majority asserts that the Secretary's"decision to deny
appellate fees was apparently based . . . on his belief that he was required
to follow the holding in DeFord." Majority op. at 4 n.3 (emphasis
added). By using such ambivalent terms, the majority implicitly con-
cedes that its conclusions are weakly supported. Second, the majority
bases its conclusion that the Secretary believed he was bound by DeFord
on what it labels as the "relevant" portion of the Secretary's order, major-
ity op. at 4 n.3; however, in focusing on a four-sentence excerpt from the
order, the majority contravenes the rule of construction that documents
should be construed in their entirety, see Fort Sumter Tours, Inc. v.
Babbitt, 66 F.3d 1324, 1332-33 (4th Cir. 1995) (construing a contract),
petition for cert. filed, 64 U.S.L.W. 3593 (U.S. Feb. 23, 1996) (No. 95-
1353); Wood v. Santa Barbara Chamber of Commerce, Inc., 705 F.2d
1515, 1523 (9th Cir. 1983) (interpreting a district court's injunction in
the context of its entire order), cert. denied , 465 U.S. 1081 (1984), and
ignores other clear indications in the order that the Secretary knew he
was not compelled to follow DeFord, see discussion infra. Third, it is
beyond dispute that an agency is not bound by circuit precedent except
in controversies that arise within the jurisdiction of that circuit. See, e.g.,
Akindemowo v. INS, 61 F.3d 282, 286 (4th Cir. 1995); see also Hodgson,
49 F.3d at 830 (Cyr, J., concurring) (pointing out that decisions from the
Fourth and Ninth Circuits do not bind an agency adjudicating a

                     10
first determine if Congress has "provide[d] guidance to the court for
resolution of the issue" through the statutory language or the
_________________________________________________________________
controversy that arose in the First Circuit). I find it simply absurd to
posit, as the majority does, that the Secretary was unaware of this ele-
mentary principle and believed he was bound by Sixth Circuit precedent
when deciding a controversy that arose in the Fourth Circuit. See
Bechtel, 50 F.3d at 931-32 (illustrating that the Secretary continued to
apply his own statutory interpretation of provisions of the ERA in cir-
cuits that have no binding precedent despite the fact that another circuit
disagreed with the Secretary's construction); see also Akindemowo, 61
F.3d at 286 (observing that the Board of Immigration Appeals continued
to apply its interpretation of a deportation statute in all circuits except
those that had rejected the Board's interpretation). Finally, the majority
seeks to minimize the importance of DeFord by noting that it was
decided before Chevron. This argument ignores the fact that Chevron did
not announce a "new rule"; indeed, prior to Chevron, the Supreme Court
had consistently adhered to the principle that courts should defer to the
reasonable interpretations of administrative agencies rather than substi-
tuting their own judgment. See, e.g., Train v. Natural Resources Defense
Council, 421 U.S. 60, 87 (1975); Udall v. Tallman, 380 U.S. 1, 16-18
(1965). Thus, I find the majority's assertion that the Secretary believed
he was bound by DeFord to be unsupported and the reasoning behind the
majority's decision to apply a de novo standard of review to be unsound.

To the contrary, because the Secretary exercised his discretion in
choosing to adopt the reasoning of the Sixth Circuit in DeFord, we must
apply the deference mandated by Chevron. The language of the Secre-
tary's order persuades me that the Secretary did not believe that DeFord
controlled his decision. In his order, the Secretary not only clearly
embraced the interpretation of § 5851(b)(2)(B) adopted by the Sixth Cir-
cuit, but also implicitly acknowledged his authority to reject that inter-
pretation. The order begins by casting the dispute in adversarial terms:
He notes that Metric relies on DeFord in requesting the Secretary to deny
Blackburn's petition for fees incurred on appeal and observes that Black-
burn "urges the Secretary not to follow DeFord." (J.A. at 39.) The Secre-
tary then holds that he is denying the petition"[b]ased on DeFord," (J.A.
at 40,) and "reject[s Blackburn]'s argument that the court's reasoning in
DeFord is flawed" based on the Secretary's own interpretation of
§ 5851(b)(2)(B) (J.A. at 40 n.1.). The Secretary concludes by expressing
approval of the holding in DeFord by remarking that he "has applied [it]
in other cases arising under analogous statutes." (J.A. at 40.)

                    11
appropriate legislative history. Akindemowo v. INS, 61 F.3d 282, 284
(4th Cir. 1995). If so, our inquiry is complete and we proceed no fur-
ther. Chevron, 467 U.S. at 842-43. If, however, we are unable to dis-
cern "the unambiguously expressed intent of Congress," id. at 843,
then Chevron "directs us not to impose automatically our own inter-
pretation of the statute, but rather to apply the interpretation of the
administrative agency charged with implementing the statute, pro-
vided the agency's interpretation `is based on a permissible construc-
tion of the statute.'" Akindemowo, 61 F.3d at 284 (quoting Chevron,
467 U.S. at 843). Employing the Chevron analysis, I conclude that the
intent of Congress is unclear regarding the award of attorneys' fees
for the prosecution of an appeal under the ERA and that the Secre-
tary's interpretation of § 5851(b)(2)(B) is permissible.

A.

Under the first prong of Chevron, I conclude that neither the statu-
tory language nor the legislative history provides adequate guidance
to determine the intent of Congress with respect to whether the Secre-
tary has the authority to award attorneys' fees and expenses incurred
in a successful appeal under the ERA. Section 5851(b)(2)(B) provides
that a plaintiff entitled to relief under the ERA may recover "all costs
and expenses (including attorneys' and expert witness fees) reason-
ably incurred . . . for, or in connection with , the bringing of the com-
plaint." 42 U.S.C.A. § 5851(b)(2)(B) (emphasis added). I find the
statutory language to be ambiguous because the statute does not
plainly state whether attorneys' fees incurred in an appeal are incurred
"in connection with" the bringing of the complaint. See DeFord v.
_________________________________________________________________
I cannot divine from the order that the Secretary believed he was com-
pelled to follow DeFord. The Secretary never stated that he was bound
by DeFord, nor does he hold that the controversy was controlled by
DeFord. Indeed, the Secretary's rejection of Blackburn's arguments for
reasons other than stare decisis and the Secretary's expression of
approval of the holding in DeFord suggest the opposite: The Secretary
chose to follow DeFord because of its persuasive reasoning. Therefore,
because the Secretary, applying his expertise, exercised his discretion in
adopting the Sixth Circuit's interpretation of § 5851(b)(2)(B), deference
under Chevron is required.

                    12
Secretary of Labor, 715 F.2d 231, 232 (6th Cir. 1983) ("[The statute]
does not by clear language confer authority upon the Secretary to
award fees for appellate proceedings.").

Because the meaning of the phrase "in connection with" is not clear
from the statutory language, we are required to look beyond the plain
language of the statute to the appropriate legislative history for guid-
ance. Robinson v. Shell Oil Co., 70 F.3d 325, 329 (4th Cir. 1995) (en
banc). In searching the legislative history, we must confine ourselves
to a review of the official Committee Reports on the bill, the "authori-
tative source for finding the Legislature's intent." Garcia v. United
States, 469 U.S. 70, 76 (1984). I agree with the DeFord court that the
legislative history is silent on whether attorneys' fees and expenses
incurred for an appeal are recoverable. See DeFord, 715 F.2d at 233.
Thus, I am unable to discern the "unambiguously expressed intent of
Congress" through either the statutory language or the legislative
history.2 Chevron, 467 U.S. at 843.

B.

Having found the search for clear congressional intent to be
unavailing, I proceed to the second prong of Chevron: Whether the
Secretary's interpretation of the provision is permissible. See
Akindemowo, 61 F.3d at 284 (proceeding to a determination of
whether an agency's construction of a statute was permissible after
_________________________________________________________________
2 Although the majority bases its decision on its belief that the award
of attorneys' fees incurred in successful appeals under the ERA is conso-
nant with the intent of Congress, see majority op. at 7-8; see also discus-
sion infra part II, I submit that the majority's analogy to Local 17,
International Association of Heat & Frost Insulators & Asbestos Work-
ers v. Young, 775 F.2d 870 (7th Cir. 1985), is insufficient to prove con-
gressional intent. Under Chevron, we may avoid the second prong of the
analysis only if we are able to divine the "unambiguously expressed
intent of Congress." Chevron, 467 U.S. at 843. By citing a case applying
a different standard of review to a statute dealing with different subject
matter, the majority has failed to demonstrate the statutory clarity
required under Chevron. See Russello v. United States, 464 U.S. 16, 25
(1983) ("Language in one statute usually sheds little light upon the mean-
ing of different language in another statute . . . ."); see also United States
v. Mitchell, 39 F.3d 465, 470 n.7 (4th Cir. 1994) (same).

                    13
finding that neither the statutory language nor the legislative history
indicated the intent of Congress). Under the second prong of the
Chevron analysis, we may not "simply impose[our] own construction
on the statute, as would be necessary in the absence of an administra-
tive interpretation." Chevron, 467 U.S. at 843 (footnote omitted);
accord Akindemowo, 61 F.3d at 284. Rather, we must apply the agen-
cy's interpretation of the statute if it "give[s] reasonable content to the
statute's textual ambiguities." See Department of Treasury, IRS v.
FLRA, 494 U.S. 922, 933 (1990).

In determining whether the agency's interpretation is reasonable,
we need not "conclude that the agency construction was the only one
it permissibly could have adopted to uphold the construction, or even
the reading the court would have reached if the question initially had
arisen in a judicial proceeding." Chevron, 467 U.S. at 843 n.11.
Instead, we should "accord considerable deference to the agency's
interpretation of the statute, and `we should not disturb [that interpre-
tation] unless it appears from the statute or its legislative history that
the accommodation is not one that Congress would have sanctioned.'"
Akindemowo, 61 F.3d at 284 (quoting Chevron , 467 U.S. at 845); see
also Good Samaritan Hosp. v. Shalala, 113 S. Ct. 2151, 2159 (1993)
("Confronted with an ambiguous statutory provision, we generally
will defer to a permissible interpretation espoused by the agency
entrusted with its implementation."). This deference is appropriate
because "agencies not only possess the expertise to implement stat-
utes and implement them at Congressional directive, but also [they]
formulate their interpretations of statutory language based on policy
considerations, which are manifested by the elected branches of our
federal system." Akindemowo, 61 F.3d at 284. In effect, "federal
judges--who have no constituency--have a duty to respect legitimate
policy choices made by those who do." Chevron , 467 U.S. at 866.

Under the second prong of the Chevron analysis, I conclude that
the interpretation advanced by the Secretary is a permissible construc-
tion of the statute, even if it is one with which reasonable jurists might
disagree. Various reasons compel this conclusion: the Secretary's
construction accords with the "American Rule" regarding allocation
of costs; the structure of the statute suggests that attorneys' fees
incurred in an appeal are not recoverable; and an appeal from an unfa-

                     14
vorable ruling by the Secretary is an action separate from the initial
complaint lodged against the employer.

Under the American Rule, a cornerstone of our jurisprudence for
two hundred years, each party is required to bear the cost of his own
attorneys' fees absent explicit congressional authorization to the con-
trary. See Key Tronic Corp. v. United States, 114 S. Ct. 1960, 1965
(1994); Alyeska Pipeline Serv. Co. v. The Wilderness Soc'y, 421 U.S.
240, 249-50 (1975). The Alyeska court recognized only two excep-
tions to the American Rule: a court may award attorneys' fees if (1)
the opposing party brings, defends, or continues the litigation in bad
faith, or (2) an attorney acts to preserve or obtain a benefit for a plain-
tiff under the "common fund doctrine." See Kollsman, a Div. of Sequa
Corp. v. Cohen, 996 F.2d 702, 707 n.4 (4th Cir. 1993).

The interpretation advanced by the Secretary is in accord with the
American Rule. As discussed above, I am unable to discern the intent
of Congress regarding the award of attorneys' fees incurred in suc-
cessful appeals by plaintiffs under the ERA; thus, I cannot find the
"explicit congressional authorization" required for the award of attor-
neys' fees under the American Rule. See Key Tronic Corp., 114 S. Ct.
at 1965. In addition, neither exception to the American Rule applies:
Blackburn has not alleged that the litigation was brought, continued,
or defended in bad faith; and the common fund doctrine is clearly
inapplicable under these circumstances.

The structure of the statute also demonstrates that the Secretary's
interpretation is not unreasonable. Although Congress explicitly pro-
vided for the recovery of attorneys' fees in the subsections discussing
administrative proceedings before the Secretary, see 42 U.S.C.A.
§ 5851(b)(2)(B), and actions before the district court to enforce an
order of the Secretary, see 42 U.S.C.A.§ 5851(e) (West 1995), Con-
gress conspicuously failed to provide for the award of attorneys' fees
in the subsection discussing review before the courts of appeals, see
42 U.S.C.A. § 5851(c) (West 1995).3 This is a persuasive indication
_________________________________________________________________
3 Although this argument also supports a determination that the statute
is not ambiguous in the first instance, I believe it is insufficient alone to
demonstrate the clear intent of Congress required under Chevron in light
of the ambiguity inherent in the phrase "in connection with."

                     15
that Congress did not intend to award attorneys' fees incurred in
appeals under the ERA, because "`where Congress includes particular
language in one section of a statute but omits it in another section of
the same Act, it is generally presumed that Congress acts intentionally
in the disparate inclusion or exclusion.'" Russello v. United States,
464 U.S. 16, 23 (1983) (quoting United States v. Wong Kim Bo, 472
F.2d 720, 722 (5th Cir. 1972)); see also, e.g. , Key Tronic, 114 S. Ct.
at 1967 (stating that where Congress included attorneys' fee awards
in two sections but omitted them in two others, the"omissions
strongly suggest a deliberate decision not to authorize such awards");
2A Norman J. Singer, Statutes and Statutory Construction § 47.23, at
217 (5th ed. 1992) ("The force of the maxim [that all omissions
should be understood as exclusions] is strengthened where a thing is
provided in one part of the statute and omitted in another." (footnote
omitted)).

Finally, I disagree with the majority and believe the Secretary's
interpretation that attorneys' fees incurred during an appeal are not
incurred "in connection with" the complaint is not unreasonable,
because an appeal to this court from an unfavorable ruling of the Sec-
retary is an action separate from the complaint itself. As the DeFord
court noted,

          the award of costs (including attorneys' fees) allowable
          under section 5851 is specifically limited to encompass
          those incurred "for, or in connection with, the bringing of
          the complaint upon which the [Secretary's] order was
          issued." Before this court [the employee] did not incur any
          attorneys' fees or other costs for litigation of claims arising
          from the complaint upon which the Secretary's order was
          issued. That complaint was lodged against [the employer].
          Rather, [the employee] incurred attorneys' fees and other
          costs before this court in pursuit of a distinguishable cause
          --complaints against the Secretary arising out of dissatisfac-
          tion with his order.

DeFord, 715 F.2d at 233 (first alteration in original). In support of its
position, the majority asserts that under the Secretary's construction
of the statute, had Blackburn prevailed before the Secretary, he would
have been unable to recoup attorneys' fees and expenses incurred in

                     16
defending his award on appeal. See majority op. at 5 n.4. This is inac-
curate; had Blackburn prevailed below, he would not be a proper
party to an appeal by the employer. See Ellis Fischel State Cancer
Hosp. v. Marshall, 629 F.2d 563, 566 & n.3 (8th Cir. 1980) (dismiss-
ing employee as a party to the appeal and refusing to award attorneys'
fees under § 5851 because the employee was not"adversely affected
or aggrieved by the Secretary's order"). Rather, the Secretary would
have been the party responsible for defending the validity of the
award on appeal. Obviously, Blackburn would be unlikely to incur
attorneys' fees and expenses in an action to which he is not a party.

For these reasons, I find the interpretation advanced by the Secre-
tary to be permissible and, therefore, Chevron compels me to defer to
it. Accordingly I would hold that Blackburn is not entitled to an
award of attorneys' fees pursuant to § 5851(b)(2)(B) because Black-
burn's fees were not incurred "in connection with" the bringing of his
complaint under the ERA.

II.

In addition to believing that the majority incorrectly employed a
plenary standard of review, I find the majority's conclusion that attor-
neys' fees incurred in an appeal are incurred "in connection with" the
bringing of the complaint to be supported by flawed reasoning. The
majority's decision rests on its belief that Congress would have
wanted plaintiffs under the ERA to be awarded attorneys' fees and
expenses incurred in appeals from unfavorable rulings of the Secre-
tary because such awards would advance the "overarching purpose"
of the statute, see majority op. at 7-8; the majority holds this belief
despite the absence of any direct or indirect evidence of Congress's
intent.

In discussing the intent of Congress,4 the majority is unable to
_________________________________________________________________
4 Nowhere in its opinion does the majority assert that congressional
intent is unambiguously manifested by the statutory language. Indeed,
even though the majority fails to state explicitly that it found the statu-
tory language to be ambiguous, we must assume that it did because oth-
erwise the majority would be unable to reach its analysis of legislative
intent. See United States v. Southern Management Corp., 955 F.2d 914,
920 (4th Cir. 1992) ("If the words [of a statute] convey a clear meaning,
courts may not sift through secondary indices of intent to discover alter-
native meanings.").

                    17
direct our attention to salient portions of the official Committee
Reports evidencing an intent to authorize the Secretary to award attor-
neys' fees incurred by plaintiffs under the ERA in the successful pros-
ecution of appeals. See Garcia, 469 U.S. at 76. Instead, to determine
congressional intent, the majority relies on Local 17, International
Association of Heat & Frost Insulators & Asbestos Workers v. Young,
775 F.2d 870 (7th Cir. 1985), in which the Seventh Circuit exercised
de novo review of a district court's interpretation of an unrelated stat-
ute. See majority op. at 7-8.

In Young, the Seventh Circuit held that a district court had the
power under § 102 of the Labor-Management Reporting & Disclosure
Act of 1959 (LMRDA), 29 U.S.C.A. § 412 (West 1985), to award
attorneys' fees incurred by plaintiffs in opposing an unsuccessful peti-
tion for certiorari to the Supreme Court. Young , 775 F.2d at 873. In
reaching its decision, the court first noted that in the context of award-
ing attorneys' fees, the Supreme Court had expansively interpreted
the equitable provision in the LMRDA authorizing courts to grant
"such relief (including injunctions) as may be appropriate." See id. at
872-73 (internal quotation marks omitted). The court then reasoned
that if "prevailing plaintiffs [ ] were forced to incur costs for unsuc-
cessful, fruitless Union appeals, this would have a chilling effect on
union members' ability to afford challenging the union leadership."
Id. at 873. In other words, the court felt that to rule otherwise would
frustrate the intent of Congress: Because union members prevailing
in the district court would likely be unable to muster the financial
resources to oppose the appeals of the union leadership, members
would be effectively deprived of the protection Congress sought to
provide under the statute. See id.

Young is distinguishable from this case and thus provides no sup-
port for the proposition that under the ERA attorneys' fees incurred
in a successful appeal are recoverable by the plaintiff. Most impor-
tantly, Young involved a review by a court of appeals of a district
court's interpretation of a statute; in those circumstances, a de novo
review of the district court's construction is appropriate. See, e.g.,
Hall, 972 F.2d at 69. Here, however, we are charged with reviewing
an administrative agency's interpretation of a statute, and we must
apply the more deferential Chevron analysis. See Akindemowo, 61
F.3d at 284.

                     18
Furthermore, ignoring the different standard of review, the ratio-
nale employed by the Young court does not apply to Blackburn. The
Young court sought to protect plaintiffs who had prevailed in the dis-
trict court from bearing the costs of opposing unsuccessful appeals by
union leadership advanced for the purpose of diminishing the finan-
cial resources of union members. See Young, 775 F.2d at 873. In con-
trast, under the ERA, employers who appeal unfavorable rulings of
the Secretary are opposed at the appellate level by the Secretary.
Thus, successful plaintiffs under the ERA do not face the same bur-
den of defending awards on appeal that plaintiffs under the LMRDA
face. Consequently, there is no corresponding danger under the ERA
that employers will pursue appeals solely in an attempt to outlast the
financial resources of employees.

In contrast to the assertions of the majority regarding congressional
intent, I believe that "it frustrates rather than effectuates legislative
intent simplistically to assume that whatever furthers the statute's pri-
mary objective must be the law." Rodriguez v. United States, 480 U.S.
522, 526 (1987). As the Deford majority noted, "[i]t is as likely as not
. . . that this situation represents a countervailing or co-existing policy
that one who obtains relief before the Secretary and yet chooses to
seek more will be required at the least to bear his attorneys' fees."
Deford, 715 F.2d at 233.

Additionally, the twelve years of congressional inaction following
the DeFord decision evidence that Congress did not intend for the
Secretary to have the authority under the ERA to award to plaintiffs
attorneys' fees incurred in a successful appeal. Although approval
may not always be inferred from congressional silence, "once an
agency's statutory construction has been `fully brought to the atten-
tion of the public and the Congress,' and the latter has not sought to
alter that interpretation although it has amended the statute in other
respects, then presumably the legislative intent has been correctly dis-
cerned." United States v. Rutherford, 442 U.S. 544, 554 n.10 (1979)
(quoting Apex Hosiery Co. v. Leader, 310 U.S. 469, 487-89 (1940)).
Here, Congress extensively amended the statute in 1992 with knowl-
edge of the construction the Sixth Circuit had placed upon the provi-
sion regarding the recovery of attorneys' fees for an appeal. See
United States v. Langley, 62 F.3d 602, 605 (4th Cir. 1995) (en banc)
(stating that Congress is presumed to act with knowledge of the judi-

                     19
ciary's interpretation of an existing statute), cert. denied, 116 S. Ct.
797 (1996). Thus, Congress's failure to correct the Secretary's inter-
pretation when it amended the statute supports the construction
advanced by the Secretary and demonstrates that Congress did not
intend to authorize the Secretary to award attorneys' fees incurred in
a successful appeal under the ERA.

III.

Although the majority offers countervailing arguments to the Sec-
retary's arguments, the Supreme Court has counseled that the "ac-
commodation of conflicting policies that were committed to the
agency's care . . . is not a task we ought to undertake on the agency's
behalf in reviewing its orders." Department of Treasury, 494 U.S. at
933 (internal quotation marks and citations omitted). Thus, under
Chevron, the court should defer to the permissible construction of the
statute urged by the Secretary and affirm his decision and order. See
Good Samaritan Hosp., 113 S. Ct. at 2161 ("[W]here the agency's
interpretation of a statute is at least as plausible as competing ones,
there is little, if any, reason not to defer to its construction."). In
departing from the analysis mandated by Chevron and imposing its
own statutory interpretation, the majority creates a conflict among the
circuits and fails to accord the deference due to the Secretary's con-
struction under controlling precedent. Accordingly, I dissent.

                     20
