                                                                                                                           Opinions of the United
2003 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


4-16-2003

Scafar Contracting v. Secretary Labor
Precedential or Non-Precedential: Precedential

Docket 02-3335




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                                    PRECEDENTIAL

                                                Filed April 15, 2003

            UNITED STATES COURT OF APPEALS
                 FOR THE THIRD CIRCUIT


                            No. 02-3335


                 SCAFAR CONTRACTING, INC.,
                                           Petitioner
                                   v.
     SECRETARY OF LABOR; OCCUPATIONAL SAFETY
          AND HEALTH REVIEW COMMISSION
                                           Respondents

     ON APPEAL FROM THE OCCUPATIONAL SAFETY
          AND HEALTH REVIEW COMMISSION
                            (No. 97-0960)

                     Argued March 11, 2003
     BEFORE: SLOVITER, NYGAARD, and ALARCON,*
                   Circuit Judges.

                      (Filed: April 15, 2003)
                          Joseph Paranac, Jr., Esq. (Argued)
                          St. John & Wayne
                          Two Penn Plaza East
                          Newark, NJ 07105
                            Counsel for Petitioner



* Honorable Arthur L. Alarcon, Senior Circuit Judge for the United States
Court of Appeals for the Ninth Circuit, sitting by designation.
                              2


                       Allen H. Feldman, Esq.
                       Nathaniel I. Spiller, Esq.
                       Mark E. Papadopoulos, Esq.
                        (Argued)
                       United States Department of Labor
                       Office of the Solicitor
                       Room N-2700
                       200 Constitution Avenue, NW
                       Washington, DC 20210
                         Counsel for Respondents


                  OPINION OF THE COURT

NYGAARD, Circuit Judge:
   In this appeal we must decide whether the requirement
in the Equal Access to Justice Act (EAJA), 5 U.S.C. § 504,
that an application for attorneys’ fees be filed “within thirty
days from the final disposition in an adversary
adjudication” means: 30 days from the time at which the
agency issues a final and appealable order; or, 30 days
from the time at which the final order becomes
unappealable. The Occupational Safety and Health Review
Commission interpreted the statute to mean 30 days from
the date on which the order of the agency became final and
appealable and denied Appellant’s request for fees
pertaining to the administrative proceeding. We will reverse.
The language of, and policy behind, the EAJA counsels that
the term “final disposition” means final and unappealable.
Thus, an application for attorney’s fees pursuant to 5
U.S.C. § 504 is timely if filed prior to the expiration of 30
days from the date the decision of the agency becomes final
and unappealable.

          I.   Jurisdiction and Standard of Review
  The Occupational Safety and Health Review Commission
had jurisdiction to evaluate the Secretary of Labor’s Petition
pursuant to § 10(c) of the Occupational Safety and Health
Act (OSH Act), 29 U.S.C. § 651 et seq. Our jurisdiction over
an appeal from a final order by the Commission is provided
by § 11 of the OSH Act, 29 U.S.C. § 660.
                              3


   We have plenary review over the Commission’s legal
interpretation of the EAJA. Sea-Land Serv., Inc. v. Rock,
953 F.2d 56, 59 (3d Cir. 1992). Because the EAJA is a
statute of general applicability and the Occupational Safety
and Health Administration is not charged with
administering it, we are not required to afford much
deference to OSHA’s regulatory interpretations. Id. at 59
(“While no deference is accorded to the [Benefits Review
Board]’s interpretation of the Act as it does not administer
it, we have indicated that we will respect that interpretation
if it is reasonable.”)(citations omitted); see also Adams Fruit
Co. v. Barrett, 494 U.S. 638, 649 (1990) (“A precondition to
deference under Chevron is a congressional delegation of
administrative authority.”).

          II.   Factual and Procedural Background
   The facts relevant to our review are not in dispute. In
1996, an OSHA Compliance Officer inspected a work site
that involved removing and replacing a sewer line in
Newark, New Jersey. Scafar Contracting was the trenching
contractor responsible for the depth and safety of the
trenches. As part of the inspection, the officer issued Scafar
two citations alleging serious and willful violations of the
Occupational Safety and Health Act. The proposed penalties
were $99,000 for the alleged willful violations and $4,000
for the alleged serious violations. Scafar contested the
citations and eventually the proceeding came before an
Administrative Law Judge in February and April of 1998. In
his July 24, 1998 decision, the ALJ vacated the willful
violations and reduced the penalty for the serious violation
to $1,600.
  The Secretary filed a Petition for Discretionary Review
with the Commission on August 25, 1998, requesting
review of the July 1998 decision. The Commission did not
accept the invitation to review and entered a Notice of Final
Order upholding the ALJ’s decision, which had an effective
date of September 4, 1998. On October 30, 1998, the
Secretary filed a Petition for Review of the July 1998
decision with us. However, no action on the merits was
taken because the Secretary abandoned her appeal by filing
a motion to withdraw the appeal on December 10, 1998.
                                   4


We granted the motion on January 25, 1999. Scafar filed
its Application for Fees and Expenses under the EAJA
within 30 days of the date we dismissed the Secretary’s
appeal. The Secretary filed its opposition to the application,
but we chose not to decide the fee issue. Herman v. Scafar
Contracting, Inc., No. 98-6411, (3d Cir. April 29, 1999)
(“This court does not act substantively on the application of
Scafar for attorney’s fees and expenses under the Equal
Access to Justice Act.”). Instead, we remanded the
application to the Commission, holding that they “shall
treat the motion as if filed on the date it was filed in this
court.” Id. We further pointed out “that there were no
adversary proceedings in this court as the petitioner
Herman after filing her petition moved to dismiss the
petition and the respondents Scafar and the Commission
did not oppose the motion.” Id. The Commission then
remanded to the ALJ without acting on the application. For
purposes of this litigation, we will continue to treat the
application for fees as being filed on February 24, 1999.
   The ALJ issued his decision on September 2, 1999,
granting Scafar’s application for $66,220.49 in fees, after
finding that the Secretary was not substantially justified in
issuing and pursuing enforcement of meritless OSH Act
violations. In her Petition for Discretionary Review, the
Secretary renewed her allegation that the application with
respect to the agency adjudication was untimely.1 The
Commission granted review and adopted the Secretary’s
position that the application was untimely for the fees
sought under 5 U.S.C. § 504. Sec. of Labor v. Scafar
Contracting, Inc., No. 97-0960 (OSHRC, Nov. 21, 2000). The
Commission applied OSHA regulations to find that the 30-
day period for filing a fee application began to run on
September 4, 1998—when the ALJ’s July 24, 1998 decision
became final and appealable. Under the Commission’s
construction, the time for Scafar to file its application

1. At oral argument we asked the parties to comment on the potential
concern that the Secretary had waived her right to assert the defense of
untimeliness by not raising the issue when first opposing the application
for fees filed with this Court. Because we find that Scafar filed its
application for fees in a timely fashion under the statute, it is
unnecessary to reach the issue of waiver.
                                  5


expired on October 4, 1998, well before the February 24,
1999 filing date that we indicated in our remand order. The
Commission reversed the ALJ and remanded for the
determination of the proper amount attributable solely to
the prior proceeding before us. Although Scafar attempted
to appeal this decision, we ruled that the remand order was
not a final order and thus we had no jurisdiction for the
appeal. See Scafar Contracting, Inc. v. Herman, No. 00-4431
(3d. Cir. December 27, 2001).
   On remand, the ALJ awarded Scafar $11,183.72 for fees
and expenses incurred in connection with the proceedings
before us.2 Scafar petitioned the Commission for
discretionary review, but the Commission declined and
issued a Notice of Final Order on August 8, 2002. This
appeal was taken August 23, 2002.

                         III.   Discussion
   The Equal Access to Justice Act was enacted to award
private litigants their expenses incurred in defending
against unreasonable government actions. As the statute
provides awards of these fees and expenses for both
administrative and judicial proceedings, the EAJA has been
bifurcated between 5 U.S.C. § 504 and 28 U.S.C. § 2412.
Despite the separate statutes, the provisions are closely
intertwined and in certain circumstances will shift the
proper forum for the decision on the application.
  With respect to agency proceedings, the applicable
statute is § 504, which provides, in part, that:
     An agency that conducts an adversary adjudication
     shall award, to a prevailing party other than the United
     States, fees and other expenses incurred by that party
     in connection with that proceeding, unless the
     adjudicative officer of the agency finds that the position
     of the agency was substantially justified or that special
     circumstances make an award unjust.

2. Properly, this amount did not include expenses incurred by Scafar
during its inappropriate appeal of the Commission’s November 21, 2000
remand order.
                              6


5 U.S.C. § 504(a)(1). To be entitled to this award of fees, a
prevailing party must file an application with the agency
“within thirty days of a final disposition in the adversary
adjudication.” 5 U.S.C. § 504 (a)(2). However,
    [w]hen the United States appeals the underlying merits
    of an adversary adjudication, no decision on an
    application for fees and other expenses in connection
    with that adversary adjudication shall be made under
    this section until a final and unreviewable decision is
    rendered by the court on the appeal or until the
    underlying merits of the case have been finally
    determined pursuant to the appeal.
Id. Pursuant to the OSH Act, the Secretary has 60 days
after the issuance of a final order to file her appeal. 29
U.S.C. § 660(a),(b).
   When an appeal to our Court is taken, the forum for
deciding fees shifts to the second statute. 5 U.S.C.
§ 504(c)(1) (“If a court reviews the underlying decision of the
adversary adjudication, an award for fees and other
expenses may be made only pursuant to section 2412(d)(3)
of title 28, United States Code.”). In turn, the applicable
provision becomes 28 U.S.C. § 2412, which provides that:
    In awarding fees and other expenses under this
    subsection to a prevailing party in any action for
    judicial review of an adversary adjudication, as defined
    in subsection (b)(1)(C) of section 504 of title 5, United
    States Code, . . . the court shall include in that award
    fees and other expenses to the same extent authorized
    in subsection (a) of such section, unless the court finds
    that during such adversary adjudication the position of
    the United States was substantially justified, or that
    special circumstances make an award unjust.
28 U.S.C. § 2412(d)(3). Therefore, we are empowered to
award fees for both the agency adjudication and the civil
action, if we reach the underlying merits. Earlier, however,
we declined to rule on the fees because we did not reach
the merits of the appeal, and instead remanded to the
Commission.
  Thus, we are presented with the question of how the term
                                     7


“final disposition” in 5 U.S.C. § 504 should be interpreted.
As is the case in all exercises of statutory interpretation, we
must first look to the plain language of the statute. “There
is no need to resort to legislative history unless the
statutory language is ambiguous.” United States v. Doe, 980
F.2d 876, 877 (3d Cir. 1992) (quoting Velis v. Kardanis, 949
F.2d 78, 81 (3d Cir. 1991)). In reviewing the language of the
statute, we find that the term “final disposition” is
ambiguous. Unlike “final judgment” in 28 U.S.C. § 2412—
which is defined as final and not appealable—no clear
definition of “final disposition” is present, nor can be
gleaned from the surrounding language.3 The absence of
language indicating when a “final disposition” occurs
requires us to look beyond the text of the statute to
determine when the 30-day filing period begins to run.
   We start with a discussion of 28 U.S.C. § 2412. How our
Circuit and others solved the ambiguity originally found in
the term “final judgment” in § 2412 provides valuable
insight into how we should interpret “final disposition” in
§ 504.

             1.   The final word on “final judgment”
   An application for fees in the civil action must be filed
“within thirty days of final judgment in the action.” 28
U.S.C. § 2412 (d)(1)(B). The statute now defines the term
“final judgment” as “a judgment that is final and not
appealable.” 28 U.S.C. § 2412 (d)(1)(G). Before this
congressional amendment, courts of appeal were divided on
the issue of whether the 30 days began to run from the
district court’s decision or from the time at which the
district court’s decision became unappealable. Compare

3. The ambiguity of “final disposition” is highlighted by the conflicting
interpretations put forth by OSHA in this case and the position of the
Court of Appeals for the D.C. Circuit in Adams v. SEC, 287 F.3d 183
(D.C. Cir. 2002). According to OSHA, a “final disposition” occurs when
the agency issues a final order. See 29 C.F.R. 2204.302. Under the D.C.
Circuit’s approach, a disposition is not final until the time for appeal has
run. Adams, 287 F.3d at 191. Neither interpretation of “final disposition”
contradicts the text of the statute and both are equally plausible from
the plain language of the text.
                              8


McQuiston v. Marsh, 707 F.2d 1082, 1085 (9th Cir. 1983)
(“[A] request for attorneys’ fees under subsection (d) is
untimely if filed more than 30 days after the district court
has entered judgment.”) with McDonald v. Schweiker, 726
F.2d 311, 315 (7th Cir. 1983) (disagreeing with McQuiston
and interpreting “final judgment” to mean final and
unappealable). Despite the congressional resolution of “final
judgment” and the separate statute for agency proceedings,
we begin with a discussion of the § 2412 cases because the
reasons for interpreting this clause aid our understanding
of the term “final disposition.”
  In McDonald, the Court of Appeals for the Seventh Circuit
addressed the question of “whether an application for such
an award is untimely if filed more than 30 days after the
district court renders its final judgment, although less than
30 days after any appellate proceedings are completed.”
726 F.2d at 312 The court noted that the term “final
judgment” was not defined in the EAJA and that various
definitions abounded in our statutory provisions. Id. at 313.
The court explicitly rejected the contention presently put
forth by the Secretary here—that waivers of sovereign
immunity are to be narrowly construed—because the court
found that there was no difference “to the Treasury of the
United States if the 30-day period for making a fee
application runs from the end of the district court
proceedings or from the end of all the proceedings; the
amount of the fee award will not be affected and that is the
important thing to the public fisc.” Id. at 314. The practical
consequences also favored finding that the time ran from
the date the decision became unappealable. The court
noted that under the alternative construction, a prevailing
party would have to file several fee applications because the
EAJA authorized awards for both the district court and
appellate level and the party would not know the total
amounts to which they were entitled. Id.
  The Seventh Circuit also expressed one other
overwhelming concern. If the EAJA requires a prevailing
party to file its application prior to the expiration of the
time for the government’s appeal, this creates an incentive
for the agency to appeal that is contrary to the remedial
intent of the EAJA. Specifically, the court was concerned
                              9


that early filing “delivers into the hands of the government
a potent, acknowledged, and from the standpoint of the
policy of the Equal Access to Justice Act perverse weapon
for discouraging meritorious fee applications.” Id. at 315.
Using the situation before them as an example, the court
explained that:
    [T]he government is unlikely to pursue an appeal where
    the stakes are only $652.50. Its adversary knows this
    and knows also that if he increases the stakes to the
    government by applying for fees, the government (as it
    emphasized to us in its briefs and at argument) will be
    more likely to appeal the underlying judgment.
Id. In light of this potential conflict, the Seventh Circuit
found that:
    The framers of the Equal Access to Justice Act could
    not have meant to create such a dilemma when they
    used the words “final judgment” without in all
    likelihood considering what the words might mean in
    the setting of the present case. They wanted to make it
    easier, not harder, for people of limited means to
    collect their small claims from the government.
Id. (citing H.R.Rep. No. 1418, 96th Cong. 2d Sess. 18
(1980)). The court also pointed out that the General
Accounting Office will not approve payment on EAJA claims
until all appellate proceedings are at an end. Ultimately, the
Seventh Circuit held that “final judgment” meant final and
unappealable and reinstated the appellant’s application as
timely.
    We addressed the ambiguity of “final judgment” in Taylor
v. United States of America, 749 F.2d 171 (3d Cir. 1984). In
Taylor, the appellant had filed his application for fees
within 30 days from the date the Secretary told him that
she would not appeal the district court’s decision. This
filing date, however, was outside the 30 days from the
district court’s decision and the district court dismissed the
application as untimely. We reversed and cited with
approval the decision in McDonald. We found that the “final
and not appealable” construction “avoids both unnecessary
fragmentation of fee petitions and the waste of judicial
resources that would be caused by filing petitions for fees
                             10


in cases that are ultimately reversed or remanded.” Id. at
173. We found it “somewhat anomalous to require an EAJA
petition to be filed before the petitioner can know the
amount he or she will seek and before the petition may
even be addressed.” Id. We also noted an impending
congressional amendment, clarifying the meaning of “final
judgment” in § 2412 as final and not appealable, and
adopted that construction.

       2.   The unsettled word on “final disposition”
   Unlike § 2412, Congress has never endeavored to define
“final disposition” in § 504. Congress did, however,
empower the Administrative Conference in 1985 to
establish model rules for the agencies in enacting the
general purposes of the EAJA. The Conference specifically
addressed the confusion over “final disposition” and created
a model rule such that “final disposition means the date on
which a decision or order disposing of the merits of the
proceeding or any other complete resolution of the
proceeding, such as a settlement or voluntary dismissal,
become a [sic] final and unappealable, both within the
agency and to the courts.” Administrative Conference of the
United States, Model Rule § 315.204, 51 Fed. Reg. 16659, *
16668 (1986) (emphasis added). Thus, the Conference
intended “final disposition” to mean final and unappealable.
The Conference explained that they hoped to “provide
consistency among agency proceedings as well as with
court cases, and . . . avoid the confusion that sometimes
arises as to whether an application must be filed with an
agency to preserve rights even though some portion of a
case is being appealed to the courts.” Id. at *16662.
  The Secretary argues that we owe no deference to the
model rules or the Conference because the Conference no
longer exists. Notwithstanding OSHA’s interpretation, the
EAJA is a statute of general applicability and we do not owe
deference to any particular agency’s interpretation.
However, as the Court of Appeals for the D.C. Circuit
recently noted, “[b]ecause Congress gave the Chairman of
the Administrative Conference the task of overseeing the
adoption by each agency of ‘uniform procedures,’ . . . the
Conference’s views warrant at the very least possible
                                   11


Skidmore deference.” Adams v. SEC, 287 F.3d 183, 189
(D.C. Cir. 2002).4 We conclude that the Conference’s
position defining “final disposition” as final and
unappealable provides a sound and consistent approach for
interpreting the EAJA, irrespective of whatever level of
Skidmore deference may be appropriate.
  In attempting to discredit the model rules, the Secretary
points to the regulations enacted by OSHA. These
regulations say that an application must be filed “in no
case later than thirty days after the Commission’s final
disposition of the proceeding.” 29 C.F.R. 2204.302(a). The
regulations further define “final disposition” to mean either:
     (1) The date on which the order of the judge disposing
     of the case becomes final under section 12(j) of the
     OSH Act, 29 U.S.C. 661(j); or
     (2) The date on which the order of the Commission
     affirming, modifying, or vacating the Secretary’s
     citation or proposed penalty or directing other
     appropriate relief becomes final under section 10(c) of
     the OSH Act, 29 U.S.C. 659(c).
29 C.F.R. 2204.302(d)(1)-(2). Pursuant to 29 U.S.C.
§ 659(c), a decision “shall become final thirty days after its
issuance.”5 The Secretary argues that the Commission’s

4. Because the Congress charged the Administrative Conference with the
official duty of interpreting the EAJA and developing model rules, we
would traditionally afford the resultant determinations some deference:
    [T]he Administrator’s policies are made in pursuance of official duty,
    based upon more specialized experience and broader investigations
    and information than is likely to come to a judge in a particular
    case. . . . We consider that the rulings, interpretations and opinions
    of the Administrator under this Act, while not controlling upon the
    courts by reason of their authority, do constitute a body of
    experience and informed judgment to which courts and litigants
    may properly resort for guidance. The weight of such a judgment in
    a particular case will depend upon the thoroughness evident in its
    consideration, the validity of its reasoning, its consistency with
    earlier and later pronouncements, and all those factors which give
    it power to persuade, if lacking power to control.
Skidmore v. Swift, 323 U.S. 134, 139-40 (1944).
5. Although not implicated on this appeal, 29 U.S.C. § 661(j) similarly
provides that the ALJ’s decision “shall become the final order of the
                                   12


regulations tie “final disposition” to the issuance of a final
order—which is final and appealable—and not the time
after which an appeal can no longer be taken. While the
internal regulations of the Commission suggest the time
period should run from the final and appealable order, the
EAJA is a statute of general applicability and OSHA’s
interpretation is not definitive. We must decide for
ourselves what “final disposition” in § 504 of the EAJA
means and will not rely solely on one agency’s
interpretation of a general statute. This was the approach
taken by the D.C. Circuit in the only case to squarely
address the issue, Adams v. SEC, 287 F.3d 183 (D.C. Cir.
2002).
   In Adams, the Court of Appeals for the D.C. Circuit faced
a situation similar to ours. The petitioner, Adams, had filed
his application for fees beyond the 30 days from a final
disposition that was unappealable to him. Although the
internal SEC regulations defined “final disposition” to mean
final and unappealable, they had further interpreted
“unappealable” to mean unappealable as to the particular
party, not 30 days from the time at which the order became
unappealable to anyone.6 Thus, because Adams had
prevailed at the agency level, he did not have the right to
appeal and the 30-day period began immediately. The court
framed Adams’ argument as asking the court to hold that
“regardless of whether the disposition giving rise to the
EAJA fee is specifically appealable, the EAJA filing deadline

Commission within thirty days after such report by the administrative
law judge, unless within such period any Commission member has
directed that such report shall be reviewed by the Commission.”
6. Unlike OSHA’s guidelines, the SEC’s regulations follow the
Conference’s model rules and define “final disposition” as “final and
unappealable, both within the Commission and to the courts.” 17 C.F.R.
§ 201.44. The Secretary argues that this distinction helps her case, but
it does not. The EAJA is a general statute and its application should, for
the most part, be consistent between agencies. That OHSA defines it
differently than the SEC does not mean that OSHA is right. If anything,
the disparity between interpretations highlights the ambiguity of the
statute and the need to look to the policies underlying the EAJA for the
proper construction.
                                 13


should not expire in any case until 30 days after the time
for appeal under the relevant law of appealability . . . has
expired or the appeal has been completed.” Id. at 184. After
much discussion, the D.C. Circuit adopted the position that
“final disposition” under § 504 of the EAJA means “final
and unappealable” to all parties.
   In looking at the issue, the court concluded that the case
specific approach used by the SEC was unworkable and
inconsistent with the purposes of the EAJA. The court first
held “as a threshold matter that the meaning of ‘final
disposition’ in § 504(a)(2) is ambiguous, but that Congress
intended it to mean final and not appealable.” Id. at 186.
Finding no help from the statutory language or legislative
history on the § 504 issue, the court turned to the
previously discussed interpretation of “final judgment”
under § 2412 for guidance. It gave two reasons for doing so:
“first, the underlying concerns that led the courts of
appeals (and ultimately Congress) to conclude that the 30-
day deadline should not begin to run until the appeals
process is completed are also relevant in the administrative
context,” and second, the court pointed out that “the
Administrative Conference of the United States . . . has
adopted EAJA regulations reflecting the clarification that
Congress enacted in 1985 for EAJA requests in judicial
proceedings.” Id. at 186-87.
  After discussing the history of § 2412, the D.C. Circuit
noted only one change in the language of § 504 that might
bear on this issue. Specifically, Congress added the section:
     When the United States appeals the underlying merits
     of an adversary adjudication, no decision on an
     application for fees and other expenses in connection
     with that adversary adjudication shall be made under
     this section until a final and unreviewable decision is
     rendered by the court on the appeal or until the
     underlying merits of the case have been finally
     determined pursuant to the appeal.
5 U.S.C. § 504(a)(2).7 Faced with this provision, the court

7. The Secretary points out that OSHA adopted a regulation designed to
implement this section. The text of that regulation provides:
                                    14


evaluated the possible alternative interpretations of what
Congress meant through the new language:
     [I]t can be read as presupposing the existence of a
     timely filed fee application, meaning that the fee
     application must be filed within 30 days of the final
     agency order, with the only restriction being that when
     the government files an appeal, the agency cannot act
     on the application until the appeal is completed; or, the
     language can be read as only reaffirming that no fees
     are appropriately awarded pursuant to § 504 until the
     government’s efforts to appeal are completed, but
     leaving open the question of when a disposition is final
     for purposes of the commencement of the 30-day
     deadline.
Adams, 287 F.3d at 187-88. The D.C. Circuit adopted the
latter construction, believing it to be more consistent with
the notion that “the 30-day filing period is a time limit and
not a window for filing, so that a fee applicant could file for
fees before there were either a final disposition or a final
judgment.” Id. at 188 (citing S.Rep. No. 96-253, at 21
(1979); H.R.Rep. No. 96-1418, at 18 (1980), 1980
U.S.C.C.A.N. at 4984, 4997; H.R.Rep. No. 99-120, at 18
n.26, 1985 U.S.C.C.A.N. at 146 n.26.).
  Because the amendment did not alter the time when the
start of the 30-day period began to run, the court turned to
the Seventh Circuit’s reasoning in McDonald and noted

    If review of a Commission decision, or any item or items contained
    in that decision, is sought in the court of appeals under section 11
    of the OSH Act, 29 U.S.C. 660, an application for an award filed
    with the Commission with regard to that decision shall be dismissed
    under 5 U.S.C. 554(c)(1) as to the item or items of which review is
    sought. If the petition for review in the court of appeals is thereafter
    withdrawn, the applicant may reinstate its application before the
    Commission within thirty days of the withdrawal.
29 C.F.R. § 2204.302(c). However, the logic used by the D.C. Circuit to
explain § 504(a)(2) equally applies to this provision and suggests that the
language here does not resolve the issue, but only addresses the
situation where an application is filed prior to the Secretary’s appeal. It
does not set a time by which an application must be filed.
                             15


“four salient observations, all of which are applicable in
agency as well as judicial proceedings.” Id. First, the court
pointed out that the government would not pay any fees
until the expiration of the time limits for appeal. Second, it
expressed concern that any other reading would result in
the need to file multiple fee applications and that “it makes
more sense, at least from the claimant’s viewpoint, to be
able to file a single application at the conclusion of all the
proceedings.” Id. (citation omitted). The court further
supported this position by citing the Seventh Circuit’s
explanation that “giving the claimant a choice whether to
ask for fees after he wins in the district court or after the
appeal maximizes his welfare, at some cost perhaps to the
courts but none we can think of to the executive branch”
Id. (quoting McDonald, 726 F.2d at 314-15). Third, the D.C.
Circuit accepted the proposition that judicial economy
would not be harmed and explained that, in the agency
proceedings:
    [W]e find no evidence that appellate economy warrants
    an earlier application deadline in light of the lost
    economy from multiple fee applications. Further,
    appellate economy is built into the statutory scheme
    for fees in administrative proceedings; §§ 504(c)(1) and
    2412(d)(3) work in tandem so that the appeals court
    can award fees for both the agency and court
    proceedings.
Id. at 188-89. Fourth, the court noted the concern
expressed by the Seventh Circuit that requiring early fee
filing “delivers into the hands of the government a potent,
acknowledged, and from the standpoint of the policy of
[EAJA] perverse weapon for discouraging meritorious fee
applications.” Id. at 189 (quoting McDonald, 726 F.2d at
315). The D.C. Circuit found that “the possibility of such a
dilemma would as a general matter appear no less likely
when the government can appeal an administrative
proceeding than in a judicial proceeding.” Id.
  Ultimately, the D.C. Circuit held that:
    § 504(a)(2) of EAJA is to be interpreted as creating a
    bright-line rule, discernible by looking at the category
    of order in question and the applicable law of
                              16


    appealability. When a potential appeal exists under the
    relevant statute, the time for appeal must lapse, or the
    appeal be completed, before the 30-day deadline begins
    to run.
Id. at 191. Thus, the only other circuit to squarely address
this question has found that the EAJA’s “final disposition”
should be interpreted as final and unappealable, where all
rights to appeal must run before the start of the 30-day
period for filing fees. Despite the difference in agencies, the
reasoning of the D.C. Circuit is equally applicable in the
context of OSHA’s regulations.
    The concerns expressed by this Court in Taylor and by
the D.C. Circuit in Adams resonate here. Pursuant to the
OSH Act, the Secretary had 60 days from September 4,
1998 to appeal the decision rendered in Scafar’s favor.
Under OSHA’s interpretation of the EAJA, Scafar would
have been required to file its application by October 4, 1998
—well before the time the Secretary had to file her appeal—
thus “deliver[ing] into the hands of the government a
potent, acknowledged, and from the standpoint of the policy
of the [EAJA] perverse weapon for discouraging meritorious
fee applications.” Adams, 287 F.3d at 189 (quoting
McDonald, 726 F.2d at 315). Further, under OSHA’s
interpretation of “final disposition,” the required, initial
application for fees filed with the agency would always be
dismissed when the Secretary appeals—necessitating the
filing of a second application whether or not this Court
reaches the merits of the appeal. This interpretation would
require multiple fee applications, resulting in “unnecessary
fragmentation of fee petitions and the waste of judicial
resources that would be caused by filing petitions for fees
in cases that are ultimately reversed or remanded.” Taylor,
749 F.2d at 173.

                       IV.   Conclusion
  Under the Secretary’s interpretation, a prevailing party
would face multiple deadlines and multiple applications,
while providing the Secretary with an incentive to appeal
the merits, even with minor awards, because of the fees
requested. This proposed construction would breathe life
                               17


into the hypothetical problems and concerns earlier
expressed by this Court and others over the proper
interpretation of § 2412’s “final judgment” in the context of
§ 504. We decline to adopt the Secretary’s interpretation.
   We hold that a prevailing party will have 30 days
following the expiration of the time for the Secretary to
appeal a decision on the merits to file its fee application
under 5 U.S.C. § 504. If the Secretary appeals to our Court,
the fees for the civil action, as well as the fees in the agency
adjudication, can be sought within 30 days following a
“final judgment” as defined in § 2412. Thus, the merits of
the case will be determined before the application for fees
is filed, obviating the need for more than one application or
deadline. This simple procedure better comports with the
intent of the EAJA to provide fees and expenses to people
who are forced to face potential fines and sanctions by
unjustified government action. This construction also
creates continuity within the EAJA by aligning the meaning
of the term “final disposition” in § 504 with its counterpart
in § 2412.

                               V.
   For the foregoing reasons, we reverse the order of the
Commission. Fees and expenses incurred in all previous
proceedings may be applied for pursuant to 28 U.S.C.
§ 2412.

A True Copy:
        Teste:

                    Clerk of the United States Court of Appeals
                                for the Third Circuit
