Scafar Contracting, Inc. v. Secretary of Labor

• Decision Date: 15 April 2003
• Docket Number: No. 02-3335.,02-3335.
• Citation: 325 F.3d 422
• Parties: SCAFAR CONTRACTING, INC., Petitioner v. SECRETARY OF LABOR; Occupational Safety and Health Review Commission Respondents.
• Court: U.S. Court of Appeals — Third Circuit

325 F.3d 422

SCAFAR CONTRACTING, INC., Petitioner v. SECRETARY OF LABOR; Occupational Safety and Health Review Commission Respondents.

No. 02-3335.

United States Court of Appeals, Third Circuit.

Argued March 11, 2003.

Filed April 15, 2003.

Joseph Paranac, Jr. (Argued), St. John & Wayne, Newark, NJ, for Petitioner.

Allen H. Feldman, Nathaniel I. Spiller, Mark E. Papadopoulos (Argued), United States Department of Labor Office of the Solicitor, Washington, DC, for Respondents.

Before SLOVITER, NYGAARD, and ALARCON,^* Circuit Judges.

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.

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, 110 S.Ct. 1384, 108 L.Ed.2d 585 (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. 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 (O.S.H.R.C., 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 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.

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 "final disposition" in 5...