Docket No. 87-1522

SECRETARY OF LABOR,

Complainant,

ASBESTOS ABATEMENT CONSULTATION
AND ENGINEERING,

Respondent.

OSHRC Docket No. 87-1522

DECISION

BEFORE: FOULKE, Chairman; WISEMAN and MONTOYA, Commissioners.

BY THE COMMISSION:

This case is before us pursuant to an order by former Administrative Law Judge Dee C. Blythe denying as untimely an application for attorneys' fees and expenses that was filed by Asbestos Abatement Consultation and Engineering (AACE) under the Equal Access to Justice Act (EAJA), 5 U.S.C. ї 504. Having reviewed the record and applicable law, we reinstate the application and remand the matter for a determination of an appropriate fee award.

I. AACE's Fee Application

AACE was engaged to monitor the removal of asbestos from the Highland Mall in Austin, Texas. Following an inspection of the site by the Occupational Safety and Health Administration (OSHA), AACE was cited for allegedly willfully violating three provisions of 29 C.F.R. ї 1926.58.[[1/]] OSHA proposed a total penalty in the amount of $1000. Judge Blythe vacated one item and affirmed the remaining two other items, but found them to be not willful. He assessed a $500 penalty for the two violations. AACE petitioned the Commission for review of the two items the judge affirmed, and former Chairman Buckley directed review on the issues raised in the petition. After AACE filed its review brief, the Secretary notified the Commission that she wished to withdraw the two remaining citation items being contested. The Commission issued an order, dated February 2, 1989, permitting the withdrawal and declaring the remainder of the judge's decision to be a final order.

In a motion dated March 6, 1989, and received by the Commission's Dallas office on March 13, AACE moved, pursuant to the EAJA, for an award of $4207.34 in attorneys' fees and costs.

Under the EAJA, a private party that prevails against the Federal Government in an administrative adjudication (including a contest of an OSHA citation) and that meets certain limits on net worth and number of employees, is entitled to an award of attorneys' fees and other expenses, unless the position of the government as a party to the proceeding was "substantially justified," or special circumstances make an award unjust. 5 U.S.C. її 504(a)(1) & 504(b)(1)(B); K.D.K. Upset Forging, Inc., 12 BNA OSHC 1856, 1857, 1986 CCH OSHD І 27,612, p. 35,879 (No. 81-1932, 1986).

The procedural elements necessary for a claim under the EAJA are set forth in 5 U.S.C. ї 504(a)(2), which states:

A party seeking an award of fees and other expenses shall, within thirty days of a final disposition in the adversary adjudication, submit to the agency an application which shows that the party is a prevailing party and is eligible to receive an award under this section, and the amount sought, including an itemized statement from any attorney, agent, or expert witness . . . . The party shall also allege that the position of the agency was not substantially justified.

The Secretary's answer, filed on April 12, pointed out that AACE's application failed to state any facts establishing that it met the size criteria for an award under EAJA, as required by 5 U.S.C. ї 504(a)(2). Furthermore, the Secretary noted that AACE's application did not contain a statement that the Secretary's position in the litigation was not substantially justified. These deficiencies, the Secretary argued, deprived the Commission of jurisdiction to consider the application because ї 504(a)(2) explicitly requires that this information be included in an application filed within the statutory thirty day period.

On May 2, AACE submitted an amended application that cured the defects in its original application. The amended application asserted that the Secretary's position in the underlying litigation had not been substantially justified, as evidenced by her ultimate withdrawal of the charges. In addition, AACE asserted that its net worth did not exceed $7,000,000 and that it did not have more than 500 employees. AACE explained that its original application was deficient because, when it was due, its attorney "had been severely injured in an armed assault to [his] person and was unable to properly review said document having merely dictated same." AACE also alleged that its preparation of financial statements at the time was further complicated by the heart attack and subsequent death of its accountant. Finally, AACE argued that it would be fraudulent for a non-eligible party to file such a document and therefore an eligibility statement is implicit in the application absent evidence of fraudulent intent.

Judge Blythe held that he had no jurisdiction to rule on the application because "32 days elapsed between final action by the Commission and the filing of the application for an award, whereas the EAJ Act allows only 30 days." The thirty-two days to which the judge referred was the time period between the date of the Commission's order and the date of mailing of AACE's EAJA application. Because he found the application to be untimely, Judge Blythe did not consider whether the application was deficient for not containing the eligibility statements.

AACE filed a Petition for Discretionary Review of the judge's order, which was granted by former Commissioner Arey. The legal issues to be addressed on review in this action are as follows:

(1)Was the application timely filed; and

(2) If the application was timely, did AACE's amended application cure the failure of the original application to contain the statutorily required eligibility requirements?

II. Timeliness of the Application

Although it does not dispute that its application was filed thirty-two calendar days after the date of the Commission's order, AACE advances two reasons in support of its contention that its application was timely. First, it argues that because the order was sent by mail, under Rule 4(b) of the Commission's Rules of Procedure, [[2/]] 29 C.F.R. ї 2200. 4(b), and Federal Rule of Civil Procedure 6(e),[[3/]] three days should be added to the thirty day period.

AACE next argues that its application was timely even if the thirty days is measured from the date of the Commission's order. According to AACE, under both Commission Rule 4(a)[[4/]]. 29 C.F.R. ї 2200.4(a), and Federal Rule of Civil Procedure 6(a) [[5/]], when a filing deadline falls on a Saturday, Sunday or Federal holiday, the deadline is extended to the next Monday or Federal workday. The company points out that the thirtieth day after February 2 was March 4, a Saturday, and that its application was mailed on the following Monday. Therefore, it contends that March 4 and March 5 should be excluded from the count.

The thirty day period for filing an EAJA application is jurisdictional and cannot be extended or waived by a court or agency rule. Long Island Radio Co. v. NLRB, 841 F.2d 474 (2d Cir, 1988); J.M.T. Machine Co. v. United States, 826 F.2d 1042 (Fed. Cir. 1987); Columbia Manufacturing Corp. v. NLRB, 715 F.2d 1409 (9th Cir. 1983). See also Action on Smoking & Health v. CAB, 724 F.2d. 211 (D.C. Cir. 1984) (thirty day period for filing EAJA application under 28 U.S.C. ї 2412 (d)(1)(B) , a provision similar to 5 U.S.C. ї 504 (a)(2), is jurisdictional); Sonicraft, Inc. v. NLRB, 814 F.2d 385 (7th Cir. 1987) (thirty day period for appealing denial of EAJA award is jurisdictional).

The courts have also held that the thirty day filing period begins to run from the time a final decision is issued by the court or agency, rather than when it is received by the parties, and that the filing occurs, not when the petition for fees is mailed, but only when it is received by the court or agency. Adam Sommerrock Holzbau, GMBH v. United States, 866 F.2d 427 (Fed. Cir. 1989) Sonicraft, Inc. v. NLRB, 814 F.2d at 386-7; Monark Boat Co. v. NLRB, 708 F.2d 1322, 1328-9 (8th Cir. 1983). Similarly, those courts that have considered the issue have held that the thirty day filing deadline cannot be extended by agency rules allowing time for mailing. Sonicraft, Inc. v. NLRB, id.; Monark Boat Co. v. NLRB, id.; Sargent v. Secretary of Health and Human Services, 739 F. Supp. 1067 (D.S.C. 1990). Therefore, contrary to the applicant's contention, it cannot rely on either Commission Rule 4(b) or Federal Rule of Civil Procedure 6(e), which add three days to filing deadlines to allow for mailing, to extend the jurisdictional time limits imposed by the EAJA.

The Commission's order was issued February 2. The judge, assuming that the jurisdictional time limit for filing an EAJA application is calculated from the time the Commission issues its decision, properly calculated the thirtieth day after February 2 to be Saturday, March 4. When, however, the thirtieth day falls on a weekend, the jurisdictional limit will not be held to have expired until the following Monday.[[6/]] Therefore, Commission Rule 4(a) would apply (although, even without the Commission rule, the deadline would probably not fall until Monday). Accordingly, if we accept the judge's premise that the date of the Commission's final order is to be determined from the date of its order, the thirtieth and last day for the fee application to be filed would have been Monday, March 6. AACE's application is dated March 6, and the certificate of service gives March 6 as the date it was mailed. As noted, however, filing for purposes of the EAJA is the date received. The application was received by the OSHRC Dallas office on March 13. Following this approach, therefore, we would have to hold that the application was not timely.

Contrary to the judge's assumption, however, we conclude that the time for filing an EAJA application begins to run, not from the date a decision is issued, but rather from the date the agency makes its "final disposition in the adversary adjudication." 5 U.S.C. ї 504(a)(2).

For purposes, of the EAJA, a case is usually deemed to be final when it has met its final demise: when there is nothing further the party can do to give it life. See James v. United States Department of Housing and Urban Development, 783 F.2d 997, 999 (11th Cir. 1986). Under section 10(c) of the Occupational Safety and Health Act, Commission orders do not become final until thirty days after issuance. [[7/]] See International Union, United Automobile, Aerospace & Agricultural Implement Workers of America (UAW) v. OSHRC, 557 F.2d 607, 611 n.10 (7th (Cir. 1977). This thirty day review period has been interpreted as a period in which the Commission may reconsider its order. Brennan v. OSHRC & S.J. Otinger, Jr., Construction Co., 502 F.2d 30 (5th Cir. 1974).

Moreover, in its rules implementing the EAJA, the Commission has recognized that the jurisdictional period for filing an EAJA application does not begin to run until its orders are final, within the meaning of section 10(c) of the Act. Commission EAJA Rule 302, 29 C.F.R. ї 2204.302 provides:

When an application may be filed.
(a) An application may be filed whenever an applicant has prevailed in a proceeding or in a discrete substantive portion of the proceeding, but in no case later than thirty days after the commission's final disposition of the proceeding.
* * *
(d) For purposes of this section, the date of final disposition is:
* * *
(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).

That the proceedings in this case terminated as a result of the Secretary's withdrawal of the citation does not mandate a different result. While, generally, the Secretary has discretion to withdraw or settle citations, the Commission retains the authority to ensure that various legal and procedural requirements are met. See General Electric Co., 14 BNA OSHC 1763, 1990 CCH OSHD І 29,072 (No. 88-2265, 1990). Until the entry of a Commission order approving the settlement or withdrawal and terminating the proceedings before the Commission, an employer cannot know with certainty that the Secretary's action will constitute the final Commission determination. Similarly, until the Commission order becomes final under section 10(c) of the Act, the possibility remains that the Secretary may determine that the settlement or withdrawal was improvident and should be withdrawn. As long as there is a technical possibility that further Commission action may occur, the employer cannot be certain that the Commission has entered a "final determination" of the matter. Cf. City of Brunswick, Georgia v. United States, 661 F. Supp. 1431 (S.D. Georgia, 1987), rev'd on other grounds, 849 F.2d 501 (11th Cir. 1988), cert. denied, 109 S. Ct. 1313 (1989). (For purpose of that portion of the EAJA applicable to the judiciary, even where the Government withdraws its action, as long as an appeal is a technical possibility, the thirty day period for filing an EAJA application does not begin until expiration of the appeal period.)

Moreover, to use different criteria for determining the start of the thirty day period for filing EAJA applications, depending on the type of Commission final order that is involved, would only serve to confuse potential applicants. The thirty day filing period for EAJA applications was not intended to become a trap for the unwary. Meyers v. Sullivan, 916 F.2d 659, 668 (11th Cir. 1990); James v. United States Department of Housing and Urban Development, id.

Therefore, we hold that, given the language of section 10(c) of the Act, Commission orders do not become "final agency dispositions," and that the time period, under 5 U.S.C. ї 504(a)(2), for filing EAJA applications, does not begin to run, until thirty days after the Commission issues its order disposing of the case. The Commission order here was issued on February 2, 1989, and was not a final order until March 4. The time for filing an EAJA application therefore expired on April 3, 1989. Accordingly, the application, received by the Commission on March 13, 1989, was timely.

III. Amendment of the Application

As noted earlier, Judge Blythe found that AACE's application failed to meet the criteria set forth in 5 U.S.C. ї 504(a)(2), because it failed to allege that the Secretary's position in the litigation was not substantially justifies and also failed to set forth facts to establish its financial eligibility for a fee award under the EAJA. AACE submitted an amended application that cured the defects in its original application on May 2, after the expiration of the thirty day period for filing applications.

The Secretary contends that, as a statute that surrenders part of the United States' sovereign immunity, the EAJA must be strictly construed to permit recovery only under the limits it sets forth. E.g. , In re Perry, 882 F.2d 534 (1st Cir. 1989). The Secretary argues that because each of the requirements of 5 U.S.C. ї 504(a)(2) are jurisdictional, they must all be fulfilled for the Commission to have jurisdiction over the application. AACE failed to file a timely application that fulfilled all of the requirements of ї 504(a)(2). Consequently, the Secretary contends, the Commission lacks jurisdiction to consider the application.

In order to determine whether the Commission has jurisdiction over this application, we must first examine the intent of Congress. Dunn v. United States, 775 F.2d 99, 103 (3d Cir. 1985). In Dunn, the Third Circuit concluded that, except for the time limit for filing EAJA applications, Congress did not intend the requirements set forth in 28 U.S.C. ї 2412.(d)(1)(B)[[8/]] to be jurisdictional. In that case, the district court had found the EAJA application to be insufficient because it did not specify the amount of fees sought and did not contain an itemized statement of hours and expenses. Although these deficiencies were cured by filings after the expiration of the thirty day period, the district court dismissed the application, holding that the failure to file an adequate application within thirty days deprived it of jurisdiction to award fees.

In reversing the district court's decision, the Third Circuit noted that the statutory requirements of ї 2412 (d)(1)(B) contain both a time limit and standards for pleading, and that these two types of requirements serve different purposes.

[A timely application] is required in most situations in the interest of finality and reliance. But once the claim is filed, whether or not it is as complete as it should be, the interests of proof of timeliness and of finality and reliance have been satisfied. What remains is the fleshing out of the details, and the government has pointed out no governmental interest which is in any way affected by the fact that the details of the fee claim came shortly after the claim was filed.

775 F.2d at 103-04. The court found that Congress was aware of the different purposes served by a timely filing requirement and a requirement setting forth standards for pleading, and did not intend for the latter to be "jurisdictional." Id. at 104. Therefore, the court concluded, a deficient application could be amended to fulfill the requirements of 28 U.S.C. ї 2412(d)(1)(B) after the time for filing an EAJA application had passed.

In Lee v. Johnson, 799 F.2d 31, 35-6 n.4 (3d Cir. 1986), the Third Circuit decided the precise issue presented here, although again in the context of interpreting 28 U.S.C. ї 2412(d), rather than 5 U.S.C. ї 504. Citing Dunn, the court said that an EAJA application could be amended to cure a missing net worth statement. Similarly, in City of Brunswick, Georgia v. United States, 661 F. Supp. at 1439, the court held that once an EAJA application is timely filed, a supplemental filing is permitted to itemize attorney expenses and to allege that the position of the United States was not substantially justified.

Other courts, however, have gone the other way. In Olson v. Norman, 830 F.2d 811 (8th Cir. 1987), the court, relying on the principle that waivers of sovereign immunity are strictly construed, held that an EAJA application that failed to allege that the position of the United States was not substantially justified, failed to meet jurisdictional requirements and could not be supplemented. Furthermore, in U.S. v. Hopkins Dodge Sales, Inc., 707 F. Supp. 1078 (D.Minn. 1989), the court rejected the holding of Dunn and held that it lacked jurisdiction over an application which omitted statutorily required information.

We conclude that the Third Circuit's decision in Dunn is the better approach. We adopt this approach because, in our view, it is more consistent with the intent of Congress in passing the EAJA, to compensate small employers for the legal costs incurred in defending themselves against unwarranted Government action. We find it unlikely that Congress would put up jurisdictional barriers in the form of rigid procedural requirements that would most often hamper the ability of small employers to avail themselves of the remedy. Congress never intended the EAJA's jurisdictional requirements to be "a trap for the unwary." Myers v. Sullivan, 916 F.2d at 668; James v. HUD, 783 F.2d at 999. Therefore, we agree with the rationale set forth in Dunn, and conclude that, except for the time limit for filing the application, Congress did not intend to make ї 504(a)(2) an inflexible jurisdictional prerequisite, but intended instead to set forth a standard of pleading that could be met by amendment after the filing of a timely application.

Moreover, although statutory time limits are often held to be jurisdictional, the liberal approach taken to amendment of pleadings, which is based on the objective that cases should be decided on their merits rather than on technicalities, generally permits pleadings that are timely filed to be amended after the time for filing has passed. Thus, in Oil, Chemical & Atomic Workers International Union v. OSHRC (American Cyanamid Co.), 671 F.2d 643 (D.C. Cir. 1982), cert. denied, 103 S. Ct. 206 (1982), the court held that the sixty day period for filing an appeal of an Occupational Safety and Health Review Commission decision was jurisdictional, but that the petition could be amended outside the sixty day period to name the proper respondent to the appeal.

Finally, a timely application adequately puts the Government on notice that fees are being sought. Once such notification has been made, allowing an amendment does not prejudice the Government in any manner. Congress enacted the EAJA in order to allow small businesses an opportunity to recover the costs of defending themselves against unwarranted Government action. In our view, allowing a defective but timely EAJA application to be amended best serves the intent of Congress.

IV. Conclusion and Order

For the reasons stated above, we find that the judge erred in denying as untimely AACE's application for recovery of its fees and expenses under the EAJA. We also find that the May 2, 1989 supplemental filing could and did amend the initial application and that, as amended, the application fulfilled the requirements of 5 U.S.C. ї 504(a)(2).

Because the judge vacated the application as untimely, he did not consider the Secretary's objections to certain fees and expenses claimed by AACE. Accordingly, we remand the matter to the Chief Judge for reassignment to another administrative law judge [[9/]] to determine the proper amount of the award.

Accordingly, it is ORDERED that the judge's decision is reversed and that the Respondent's application for fees and expenses under the EAJA is both timely and valid. The matter is remanded to the Chief Judge for further proceedings consistent with this opinion.

Edwin G. Foulke, Jr.
Chairman

Donald G.Wiseman
Commissioner

Velma Montoya
Commissioner

Dated: SEP 11,1991

ASBESTOS ABATEMENT
CONSULTATION &
ENGINEERING ASSOCIATES,

Petitioner,

SECRETARY OF LABOR,

Respondent.

OSHRC DOCKET NO. 87-1522

DECISION AND ORDER

Appearances:

Jack Powasnik, Esq., Office of the Solicitor, Department of Labor, Washington, D. C., for Respondent.

B. Harrison Moore, Legal Affairs Coordinator, Hainesport, New Jersey, for Petitioner.

STATEMENT OF THE CASE

BLYTHE, Judge:

This case is before the Occupational Safety and Health Review Commission ("the Commission") under the Equal Access to Justice Act ("EAJ Act"), 5 U.S.C. 504, and was brought against the Secretary of Labor ("the Secretary") by Asbestos Abatement, Consultation & Engineering Associates ("petitioner" or "applicant") for fees and expenses incurred in a proceeding under the Occupational Safety and Health Act of 1970, 29 U.S.C. її 651-678 ("OSH Act") The Occupational Safety and Health Administration ("OSHA") issued one citation to petitioner alleging three willful violations of ї 5(a)(2) of the OSH Act and proposing penalties totaling $8,000. Petitioner filed notice of contest, after which the Secretary filed a complaint and Petitioner filed an answer. After a hearing, the undersigned found two violations (amending the characterization to "other than serious" and reducing the proposed penalties to $500.

Petitioner petitioned the Commission for discretionary review, as to subitems (b) and (c) of the citation, which had been affirmed. The Secretary simultaneously filed objections to the petition for review and a motion to retract the order directing review. The motion was denied. The Secretary then filed a notice to withdraw subitems (b) and (c). The Commission construed this notice as a motion and granted it February 2, 1989, while affirming the judge's order insofar as it vacated subitem (a).

Petitioner on March 6, 1989, filed an application for an award of fees and expenses under the EAJ Act. The Secretary filed an answer and brief in opposition to the application on April 12, 1989, and Petitioner filed an undated amended application (certified to have been mailed "May _, 1989"). The Secretary elected to stand on her original brief, supplemented in part by a letter dated May 18, 1989. The case was assigned to the undersigned for decision on March 10, 1989.

JURISDICTION

The first, and decisive, issue in this case is whether the Commission has jurisdiction, and this depends on whether the application was timely filed. Unfortunately, it was not; 32 days elapsed between final action by the Commission and the filing of the application for an award, whereas the EAJ Act allows only 30 days.

The EAJ Act provides, in 5 U.S.C. 504(a)(2):

"A party seeking an award of fees and other expenses shall, within thirty days of a final disposition in the adversary adjudication, submit to the agency an application..." (Emphasis supplied.) The courts of appeals have uniformly held this provision of the EAJ Act and similar provisions in other statutes to be jurisdictional and must be construed strictly. E.g., Long Island Radio Co. v. NLRB, 841 F.2d 474 (2nd Cir. 1988); Clifton v, Heckler, 755 F.2d 1138 (5th Cir. 1985); Columbia Mfg. Co. v. NLRB, 715 F.2d 1409 (9th Cir. 1983).

The rationale for strict construction is well stated in Long Island Radio as follows:

It is well established that "[t]he United States, as sovereign, is immune from suit save as it consents to be sued...." United States v. Sherwood, 312 U.S. 584, 586, 61 S.Ct. 767, 769, 85 L.Ed. 1058 (1941). "[T]he terms of its consent to be sued in any court define that court's jurisdiction to entertain the suit." Id. Any waiver of the government's sovereign immunity is to be strictly construed in favor of the government. See Library of Congress v. Shaw, 478 U.S. 310, 106 S.Ct. 2957, 2963-65, 92 L.Ed.2d 250 (1986); Ruckelshaus v. Sierra Club, 463 U.S. 680, 685, 103 S.Ct. 3274, 3277, 77 L.Ed.2d 938 (1983); McMahon v. United States, 342 U.S. 25, 27, 72 S.Ct. 17, 19, 96 L.Ed. 26 (1951).

Since jurisdiction to entertain a claim against the United States exists only as Congress has granted it, neither an agency nor a court has the power to entertain claims that do not meet the conditions limiting the waiver of immunity. Where a statute authorizing a claim against the United States contains time limits for filing the claim, those limits set the temporal boundaries of the consent to be sued; they grant the tribunal in which the claim is to be filed jurisdiction to entertain only those claims that are filed within the time allowed by the statute. See, e.g., Diliberti v. United States, 817 F.2d 1259, 1261-62 (7th Cir. 1987) (action to enforce rights under Freedom of Information Act, 5 U.S.C. ї 552a(g)(5) (1982); Leonhard v. United States, 633 F.2d 599, 624 (2d Cir. 1980) (suit under Federal Tort Claims Act, 28 U.S.C. ї 2401(b) (1982)), cert. denied, 451 U.S. 908, 101 S.Ct. 1975, 68 L.Ed.2d 295 (1981). As stated in Simon v. United States, 244 F.2d 703, 705 (5th Cir. 1957), such a time limit is an "enabling statute, evidencing a consent to be sued and fixing the time for suing [; it] is not a statute of limitation but a statute granting for a limited time the right of action afforded."

The Commission has adopted Rules of Procedure to implement the EAJ Act, and Rule 302(a), 29 C.F.R. 2204.302(a), provides that the 30-day period for filing EAJ Act applications ends "thirty days after the Commission's final disposition of the proceeding." Here the granting of the Secretary's motion to withdraw two subitems of the citation and affirming the judge's order vacating the third subitem was a "final disposition." It was wholly favorable to the applicant, and it was already too late for the Secretary to seek review of the vacated item. It is, therefore, ORDERED that the petitioner's application for fees and expenses under the EAJ Act is DENIED.[[1]]

DEE C. BLYTHE
Administrative Law Judge

Date: July 12, 1989

FOOTNOTES:
[[1/]] The asbestos standard governing construction work, 29 C.F.R. ї 1926.58, contains requirements for monitoring the airborne asbestos at worksites where asbestos is being removed.

[[2/]] Commission Rule 4(b) states in pertinent part:

Where service of a document, other than a petition for discretionary review, is made by mail pursuant to ї 2200.7, three days shall be added to the prescribed period for the filing of a response.

[[3/]] Rule 6(e) of the Federal Rules of Civil Procedure provides:

Whenever a party has the right or is required to do some act or take some proceedings within a prescribed period after the service of a notice or other paper upon the party and the notice or paper is served upon the party by mail, 3 days shall be added to the prescribed period.

[[4/]] Commission Rule 4(a) provides in pertinent part:

In computing any period of time prescribed or allowed in these rules, the day from which the designated period begins to run shall not be included. The last day of the period so computed shall be included unless it is Saturday, Sunday or Federal holiday.

[[5/]] Federal Rule of Civil Procedure 6(a) provides:

In computing any period of time prescribed by these rules, by the local rules of any district court, by order of court, or by any applicable statute, the day of the act, event, or default from which the designated period of time begins to run shall not be included. The last day of the period so computed shall be included, unless it is a Saturday,a Sunday or a legal holiday....in which event the period runs until the end of the next day which is not one of the aforementioned days.

[[6/]] One court has, in dictum, stated that Fed. R. App. P. 26(a) would apply to a filing under another provision of the EAJA. Action on Smoking & Health v. CAB, 724 F.2d 211, 225 n. 72 (D.C. Cir. 1984). Fed. R. Civ. P. 6(a) and Fed. R. App. P. 26(a) both exclude Saturday, Sunday, and federal holidays if they would be the last day of the filing period.

This allowance stems from common-law practice, and has become recognized by long established legal and commercial tradition. Sherwood Brothers, Inc. v. District of Columbia, 113 F.2d 162, 163-4 (D.C. Cir. 1940).

[[7/]] Section 10(c) states in relevant part:

The Commission shall thereafter issue an order, based on findings of fact, affirming, modifying, or vacating the Secretary's citation or proposed penalty, or directing other appropriate relief, and such order shall become final thirty days after its issuance.

[[8/]] 28 U.S.C. ї 2412(d)(1)(B) is applicable to EAJA applications filed before the courts and is the substantive equivalent of 5 U.S.C. ї 504(a)(2).

[[9/]] Unfortunately, Judge Blythe passed away while this matter was pending before the Commission.

[[1]] It should be noted that the application has several other deficiencies which would greatly reduce the amount of any award if the Commission had jurisdiction. However, it would be fruitless to explore these deficiencies.