Adams v. Securities & Exchange Commission

United States Court of Appeals

FOR THE DISTRICT OF COLUMBIA CIRCUIT

Argued March 22, 2002 Decided April 19, 2002

No. 01-1221

Richard J. Adams,
Petitioner

v.

Securities and Exchange Commission,
Respondent

On Petition for Review of an Order of the
Securities and Exchange Commission

Marc B. Dorfman argued the cause for petitioner. With
him on the briefs was Arthur M. Schwartzstein.

Michele R. Vollmer, Senior Counsel, Securities and Ex-
change Commission, argued the cause for respondent. With
her on the brief were David M. Becker, General Counsel,
Richard M. Humes, Associate General Counsel, and Samuel
M. Forstein, Assistant General Counsel.

 Before: Sentelle and Rogers, Circuit Judges, and
Williams, Senior Circuit Judge.

Opinion for the Court filed by Circuit Judge Rogers.

Rogers, Circuit Judge: Richard J. Adams petitions for
review of the denial of his application for attorneys' fees
under the Equal Access to Justice Act ("EAJA"), 5 U.S.C.
s 504. The Securities and Exchange Commission ruled that
Adams's application was untimely because it was not filed
within 30 days of the "final disposition" of his adversary
adjudication as required by s 504(a)(2). The Commission
reasoned that although its EAJA regulations define "final" to
mean "final and unappealable," 17 C.F.R. s 201.44(b), be-
cause Adams was not aggrieved by the order of dismissal in
his favor, the order was "unappealable" at its issuance;
hence, there was no basis on which to conclude that the 30-
day filing deadline commenced only after the statutory 60-day
period for appeal had expired rather than immediately upon
the issuance of the order of dismissal. Adams contends that
the Commission has confused the issue of appealability in the
context of EAJA, with the underlying merits of an appeal. In
other words, regardless of whether the disposition giving rise
to the EAJA fee is specifically appealable, the EAJA filing
deadline should not expire in any case until 30 days after the
time for appeal under the relevant law of appealability, here
15 U.S.C. s 78y(a)(1), has expired or the appeal has been
completed. We agree, for the Commission's position involves
the awkward practice of requiring a case-by-case examination
of appealability contrary to the purposes of EAJA. Accord-
ingly, we grant the petition to the extent of reversing the
denial of Adams's EAJA application; we remand the case to
the Commission to determine Adams's eligibility for fees.

I.

The Division of Enforcement of the Commission has pur-
sued both judicial and administrative proceedings against
Adams. Beginning September 30, 1991, the Division filed a
civil injunctive action in the United States District Court for

the District of New Jersey alleging that Adams and others
engaged in the fraudulent offer and sale at artificial prices of
securities in initial public offerings and manipulated the after-
markets in those securities from January 1, 1987 to December
20, 1988 in violation of ss 5(a), 5(b), 5(c), and 17(a) of the
Securities Act of 1933, ss 10(b) and 15(c) of the Securities
Exchange Act of 1934, and Rules 10b-5, 10b-6, and 15c1-2
thereunder. SEC v. Graystone Nash, Inc., 820 F. Supp. 863,
868 (D.N.J. 1993), rev'd, 25 F.3d 187 (3d Cir. 1994). Based on
a record limited by an order precluding Adams from present-
ing certain evidence because of his initial invocation of the
Fifth Amendment, the district court granted summary judg-
ment to the Division and ordered both injunctive relief and
disgorgement in the amount of $60,565,581. Id. at 869-76.
The Third Circuit reversed on the ground that the district
court failed to consider the relevant factors in concluding that
preclusion was appropriate. SEC v. Graystone Nash, Inc., 25
F.3d 187, 193-94 (3d Cir. 1994). On remand, the district
court stayed the litigation pending resolution of the Division's
administrative proceeding, which was commenced prior to the
decision of the Third Circuit.

On April 21, 1994, the Commission instituted administrative
proceedings against Adams, pursuant to ss 15(b)(4) and (6) of
the Exchange Act. In re Graystone Nash, Inc., Admin. Proc.
File No. 3-8327, 1994 SEC LEXIS 1303 (Apr. 21, 1994). The
Commission denied Adams's motion to dismiss the adminis-
trative claims as time barred, but dismissed the proceedings
based on the district court's entry of an injunction. In re
Graystone Nash, Inc., Exchange Act Release No. 35907,
Admin. Proc. File No. 3-8327, 1995 SEC LEXIS 1634, at *2-
*3 (June 28, 1995). An administrative law judge ("ALJ")
thereafter held an evidentiary hearing on the remaining,
independently alleged violations by the Division. In re Gray-
stone Nash, Inc., 62 SEC Docket 671, Admin. Proc. File No.
3-8327, 1996 SEC LEXIS 3545, at *1-*3 (June 27, 1996).
The ALJ dismissed the proceedings on two grounds: first, as
time barred in light of an intervening decision by this court in
Johnson v. SEC, 87 F.3d 484 (D.C. Cir. 1996), holding that
the five-year statute of limitations set forth in 28 U.S.C.

s 2462 applied to such proceedings, and second, on the alter-
nate ground that the Division failed to prove that Adams
violated the securities laws. In re Graystone Nash, 1996
SEC LEXIS 345, at *59. The Division appealed and the
Commission, on February 11, 1998, dismissed the administra-
tive proceeding. The full main text of the Commission's
opinion stated:

On June 27, 1996, an administrative law judge dis-
missed proceedings that had been brought by our Divi-
sion of Enforcement against Richard J. Adams. The law
judge based her dismissal on the decision in Johnson v.
SEC, 87 F.3d 484 (D.C. Cir. 1996), which held that 28
U.S.C. Section 2462 prohibited this Commission from
imposing a censure and a supervisory suspension in an
administrative proceeding because the proceeding had
been initiated more than five years after the conduct at
issue. It is undisputed that all of the conduct at issue
here occurred more than five years before the institution
of proceedings. The law judge further found that the
Division had not proved that Adams violated any section
of the securities laws, and used that finding as an alter-
native basis for her decision to dismiss. On July 30,
1997, we granted the Division's petition for review.

Although the Division vigorously disputes the law
judge's factual conclusions, it has decided not to seek
reversal of her decision in light of the Johnson decision
and the "current procedural posture of this case." In a
parallel proceeding in federal district court, the Division
is currently seeking an injunction against Adams based
on the same allegations as in this proceeding. We have
determined that, given the age of this case and that the
Division does not oppose dismissal, it is appropriate to
dismiss this matter. We intimate no view on the merits.

Accordingly, IT IS ORDERED that this proceeding
be, and it hereby is, dismissed.

In re Adams, Exchange Act Release No. 39645, Admin. Proc.
File No. 3-8327, 1998 SEC LEXIS 208 (Feb. 11, 1998)
(footnotes omitted). No appeal was filed.

 On May 8, 1998, eighty-six days after the Commission
dismissed the administrative proceedings, Adams filed an
application for attorneys' fees pursuant to EAJA. The ALJ
rejected the Division's position that the fee application was
untimely, and found that Adams was entitled to attorneys'
fees because the Division's position at the hearing was not
substantially justified. In re Adams, Initial Decision Release
No. 176, Admin. Proc. File No. 3-8327 (Nov. 30, 2000). The
Division appealed and the Commission reversed, denying the
fee application as untimely because it was filed more than
thirty days after the final disposition of the agency adjudica-
tion, citing 5 U.S.C. s 504(a)(2) and the Commission's EAJA
regulations, 17 C.F.R. s 201.44(b). In re Adams, Exchange
Act Release No. 44205, Admin. Proc. File No. 3-8327, 2001
SEC LEXIS 736, at *3-*5 (Apr. 19, 2001). The Commission
noted that under s 25(a)(1) of the Securities Exchange Act,
15 U.S.C. s 78y(a)(1), only "a person aggrieved by a final
order of the Commission" has a right to appeal, and that
Adams had no standing to appeal because he was not ag-
grieved by the Commission's order of dismissal. In re
Adams, 2001 SEC LEXIS 736, at *5. Hence, in the Commis-
sion's view, the order of dismissal of February 11, 1998
constituted a final disposition under EAJA because it was
both final and unappealable, giving Adams only 30 days
thereafter to file an EAJA application. Concluding that
Adams's application was untimely, the Commission did not
reach the merits of Adams's entitlement to fees. Id. at *10
n.19.

II.

Under s 504 of EAJA, an agency shall award attorneys'
fees and costs to a prevailing party (other than the United
States) unless the agency's position was "substantially justi-
fied" if the requesting party submits an application "within
thirty days of a final disposition in the adversary adjudica-
tion." 5 U.S.C. s 504(a). An "adversary adjudication" is
defined to mean (i) a formal agency adjudication in which the
position of the United States is represented by counsel,
excluding adjudications as to rate making and licensing, (ii)
proceedings before agency boards of contract appeals, (iii)
agency hearings under the Program Fraud Civil Remedies
Act of 1986, 31 U.S.C. ss 3801-3812 (an administrative

scheme similar to the False Claims Act, 31 U.S.C. ss 3729-
3733), and (iv) agency hearings under the Religious Freedom
Restoration Act of 1993, 42 U.S.C. ss 2000bb-2000bb-4. Id.
s 504(b)(1)(C). Section 504 does not define "final disposi-
tion." The Commission's EAJA regulations, however, pro-
vide that a fee application must be filed within 30 days of the
Commission's "final disposition," which it defines as the date
a decision or order becomes "final and unappealable, both
within the Commission and to the courts." 17 C.F.R.
s 201.44.

Adams's counsel, presumably reading these provisions of
the statute and the Commission's regulation together, con-
cluded that Adams had 90 days in which he could file his
application for fees: 60 days for the time for appeal to expire
under s 25(a)(1) of the Exchange Act at which time the order
of dismissal would become final and unappealable and then 30
days from this now final and unappealable dismissal order to
file his fee application as provided in s 504(a)(2). Although,
in light of the Commission's "unappealability" rationale for
denying Adams's fee application, the parties devote nearly all
of their briefs on appeal to the question whether the Febru-
ary 11, 1998 order of dismissal was appealable by Adams, we
conclude that the case specific approach adopted by the
Commission is inconsistent with the purposes of EAJA and
unworkable in practice. First, however, we hold as a thresh-
old matter that the meaning of "final disposition" in
s 504(a)(2) is ambiguous, but that Congress intended it to
mean final and not appealable. In so doing, we readily
acknowledge that the question is one of first impression, that
the statutory language and the legislative history are unhelp-
ful on the precise question, and that EAJA precedent ad-
dresses only EAJA applications under s 2412 in connection
with judicial proceedings. Nevertheless, we conclude that
this guidance is relevant for two reasons: first, the underly-
ing concerns that led the circuit 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 Administrative Conference of the United States, and

consequently the Commission, has adopted EAJA regulations
reflecting the clarification that Congress enacted in 1985 for
EAJA requests in judicial proceedings.

Prior to the 1985 reenactment of EAJA, s 2412 provided
that a party filing an application for fees in the court "shall,
within thirty days of final judgment in the action, submit to
the court an application for fees...." 28 U.S.C.
s 2412(d)(1)(B) (1980) (amended 1985). The circuit courts of
appeals differed as to whether the 30-day deadline for filing a
fee application commenced upon a final but appealable order
of the district court or not until the expiration of the time for
appeal or the completion of any appeal taken. In McQuiston
v. Marsh, 707 F.2d 1082 (9th Cir. 1983), the Ninth Circuit
held that the 30-day deadline commenced with the final order
of the district court, stating that " 'final judgement' should be
defined by its common usage in contexts such as 28 U.S.C.
s 1291, Fed. R. App. P. 4(a), and Fed. R. Civ. P. 54." Id. at
1085. The Seventh Circuit, in McDonald v. Schweiker, 726
F.2d 311 (7th Cir. 1983), disagreed, holding that the 30-day
period did not commence until after the appeals were com-
pleted. Id. at 314-16; accord Mass. Union of Pub. Hous.
Tenants, Inc. v. Pierce, 755 F.2d 177, 179-80 (D.C. Cir. 1985).
Observing that the practical consequences of the Ninth Cir-
cuit's approach militated against its adoption, the Seventh
Circuit rejected the Ninth Circuit's conclusion as short on
rationale, particularly as neither s 1291 nor Rule 4(a) refer to
a "final judgment." McDonald, 726 F.2d at 314-15. Noting
that other circuits had held that the fee application could be
filed after the completion of appellate proceedings, and con-
cluding that "theirs is the better approach," the Seventh
Circuit also observed that Congress could clarify the matter if
it decided to reenact EAJA, which was due to expire in ten
months, on October 1, 1984, Pub. L. No. 96-481, Title II,
s 203(c), 94 Stat. 2327 (Oct. 21, 1980). McDonald, 726 F.2d
at 315. Congress responded by amending s 2412 to define
"final judgment" as "a judgment that is final and not appeal-
able, and includes an order of settlement." Pub. L. No. 99-
80, s 2, 99 Stat. 185 (Aug. 5, 1985) (codified at 28 U.S.C.
s 2412(d)(2)(G)). The House Report states that the amend-

ment adopted the Seventh Circuit's approach in McDonald.
H.R. Rep. No. 99-120, at 18 (1985).

Unlike s 2412, however, the EAJA provision on agency
proceedings is unhelpful even after Congress's 1985 reenact-
ment of EAJA, with amendments, in answering the question
whether the 30-day deadline for filing commences with a final
and appealable agency order or not until the appeal time has
expired or any appeal is completed. The only possibly rele-
vant amendment to s 504 was the addition of the sentence:

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 ap-
peal.

5 U.S.C. s 504(a)(2). This sentence, however, lends itself to
alternative readings: it 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 s 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. Indeed, the latter reading is consistent with
the possibility 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. See S. Rep. No. 96-253, at 21 (1979); H.R. Rep.
No. 96-1418, at 18 (1980); H.R. Rep. No. 99-120, at 18 n.26.
Compare Mass. Union of Pub. Hous. Tenants, 755 F.2d at
179 (citing McDonald, 726 F.2d at 314), with Melkonyan v.
Sullivan, 501 U.S. 89, 103 (1991).

 In light of Congress's adoption of its approach, the Seventh
Circuit's analysis of when EAJA's 30-day deadline begins to
run is highly relevant to understanding the meaning of "final
disposition" in s 504(a)(2). The Seventh Circuit made four
salient observations, all of which are applicable in agency as
well as judicial proceedings. First, the court stated that it
could not imagine that the government would be willing to
pay fees before the time after completion of all appeals or the
expiration of the time limitations for appeals. McDonald, 726
F.2d at 313. This would appear to be no less true in
administrative proceedings. Certainly, if the instant case is
representative, it is clear that the government would strongly
urge that its position was "substantially justified," a position
consistent with the government appealing when it can. Sec-
ond, the Seventh Circuit noted the cost to the applicant of
having to file multiple fee applications--one following the
judgment in the district court and another following the
judgment from the court of appeals. Id. at 314. It is no less
true in cases arising in the administrative context 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. Even if EAJA may still allow the filing of
two applications by reading EAJA's 30-day period as not a
window for filing, but rather merely as a deadline for filing,
allowing the applicant to choose when to file does not disad-
vantage the government: "[G]iving 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. at 314-15. Third, the Seventh Circuit rejected
as insignificant any judicial economy at the appellate level
that would result from requiring the fee application to be filed
within 30 days of the district court's final judgment, and
thereby allowing the fee award to be acted on in time to allow
an appeal from the fee award to be consolidated with the
appeal from the judgment. Id. at 314. The court noted, in
part, that "the judicial economy may be largely illusory if ...
the claimant is entitled in suitable cases to reimbursement of
appellate fees." Id. Here, too, the situation would be analo-

gous in agency proceedings; we find no evidence that appel-
late 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; ss 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. See 5 U.S.C.
s 504(c)(1); 28 U.S.C. s 2412(d)(3). Fourth, the Seventh
Circuit took account of the fact that forcing a claimant to file
a fee application within 30 days of the final judgment of the
district court "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." McDonald, 726 F.2d at 315. In McDonald,
the fee applicant had recovered only a "wretched pittance" in
Social Security benefits. Id. Her attorney thus faced the
dilemma of choosing between jeopardizing her reward by
filing a fee request to recover reasonable attorneys fees,
which raises the stakes for the government and hence makes
the government more likely to appeal, or foregoing a fee
application altogether. Id. Although Adams's attorney faces
no such quandary, 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.

Additionally, the Administrative Conference of the United
States, to which Congress gave the task of consulting with
each agency to ensure adoption of "uniform procedures for
the submission and consideration of applications for an award
of fees," 5 U.S.C. s 504(c)(1), interpreted "final disposition" to
mean "final and unappealable." Model Rules for Implemen-
tation of the Equal Access to Justice Act, 51 Fed. Reg. 16,659,
16,662 (May 6, 1986). The Administrative Conference specifi-
cally noted that when the government can appeal a final
agency disposition and the time to file an appeal is longer
than 30 days, "[t]here is no point in requiring the applicant to
meet an arbitrary filing deadline of 30 days after issuance of
the decision if the agency will not consider the application"
until the time for an appeal has lapsed. Id. Although the

Administrative Conference was aware that in most adminis-
trative proceedings covered by EAJA the government will be
unable to appeal its own decision, it nonetheless concluded
that:

While the same considerations will not apply in most
other agency proceedings, where the government will not
appeal, we believe the best approach is to modify the
definition of "final disposition" for all proceedings. This
will provide consistency among agency proceedings as
well as with court cases, and will 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. Although the Model Rule's use of "unappealable" is not
identical to "not appealable" in 28 U.S.C. s 2412(d)(2)(G), the
Administrative Conference clearly meant it to have the same
meaning and incorporate the same concepts. Because Con-
gress gave the Chairman of the Administrative Conference
the task of overseeing the adoption by each agency of "uni-
form procedures," 5 U.S.C. s 504(c)(1); see H.R. Rep. No. 96-
1418, at 16, as EAJA is a law of general applicability, the
Conference's views warrant at the very least possible Skid-
more deference. See United States v. Mead Corp., 533 U.S.
218, 237-38 (2001); Skidmore v. Swift & Co., 323 U.S. 134,
140 (1944); see also Escobar Ruiz v. INS, 813 F.2d 283, 289
(9th Cir. 1987).

In our view, much as we concluded in Massachusetts
Union, 755 F.2d at 180, in adopting the Seventh Circuit's
analysis and holding in McDonald, the practical reasons
underlying the Seventh Circuit's defining "final" as unappeal-
able for purposes of s 2412 in McDonald are both compelling
and applicable to "final dispositions" under s 504. That
Congress adopted the McDonald approach for applications in
judicial proceedings under s 2412 suggests that Congress
also agreed with the court's underlying reasoning, which is
equally applicable to fee applications in agency proceedings
under s 504. Additionally, the Administrative Conference
specifically concluded that the 30-day EAJA deadline that

applies in agency proceedings should be analogous to the
30-day EAJA deadline that applies in judicial proceedings.
For these reasons, we conclude that "final" as used in
s 504(a)(2) means "final and unappealable."

The Commission interpreted the word "unappealable" in its
EAJA regulation to require a case-by-case determination as
to whether a party is aggrieved, and thus could file an appeal
that would withstand dismissal for lack of standing. In re
Adams, 2001 SEC LEXIS 736, at *5. Such an interpretation
is inconsistent with the underlying purposes of EAJA. The
Commission's regulation, ambiguous on its face, must be
construed to avoid inconsistency with EAJA. See Sec'y of
Labor, Mine Safety & Health Admin. v. W. Fuels-Utah, Inc.,
900 F.2d 318, 320 (D.C. Cir. 1990). Because EAJA is a
statute of general applicability and the Commission's regula-
tions purport to interpret s 504, however, the usual deference
accorded to an agency's interpretation of its own regulations
does not apply. Cf. Contractor's Sand & Gravel, Inc. v. Fed.
Mine Safety & Health Review Comm'n, 199 F.3d 1335, 1339
(D.C. Cir. 2000). Instead, the court must determine the
meaning of "final disposition," and hence "unappealable," as
any question of law committed to the court for decision and
not the agency. Id. Additionally, the Commission's use of
"unappealable" is wholly derived from the Administrative
Conference's Model Rules. Recognizing that the Commission
could not appeal its own orders under 15 U.S.C. s 78y(a)(1),
the Commission did not adopt that part of the Model Rules
that addresses government appeals, but it did adopt the
Administrative Conference's definition of "final" as meaning
"final and unappealable." Equal Access to Justice Act Rules,
Proposed Rulemaking, 54 Fed. Reg. 11,961, 11,963 n.11 (Mar.
23, 1989); Equal Access to Justice Act Rules, Adoption of
Rules, 54 Fed. Reg. 53,050, 53,052 (Dec. 27, 1989) (codified at
17 C.F.R. s 204.44(b)). Thus, only after consultation with the
Chairman of the Administrative Conference, see 5 U.S.C.
s 504(c)(1), and ultimately consistent with the Administrative
Conference's Model Rule, did the Commission promulgate its
regulation that no application for EAJA fees is to be filed
until the agency's final order become "unappealable, both

within the Commission and to the courts." 17 C.F.R.
s 201.44. In determining the meaning of "unappealable,"
then, the court is not restricted by the Commission's interpre-
tation of the term in its regulation and must instead derive
the meaning of the word from EAJA itself. Nor is the court
required to interpret strictly the statutory deadline simply
because it is a jurisdictional prerequisite to government liabil-
ity; defining the starting point of the deadline does not
expand government liability because "the amount of the fee
will not be affected and that is the important thing to the
public fisc." McDonald, 726 F.2d at 314.06.

Congress originally enacted EAJA with the purpose of
"expand[ing] the liability of the United States for attorneys'
fees and other expenses in certain administrative proceedings
and civil actions." H.R. Rep. No. 99-120, at 4. Realization of
this purpose necessarily requires an interpretation of the
procedural requirements of EAJA in a manner that is not
unduly confusing or misleading so that they are not a "trap
for the unwary." Myers v. Sullivan, 916 F.2d 659, 670 (11th
Cir. 1990). As stated in the House Report adopting the
McDonald approach:

The court should avoid an overly technical construction
of these terms. This section should not be used as a trap
for the unwary resulting in the unwarranted denial of
fees.

H.R. Rep. No. 99-120, at 18 n.26. As the instant case
illustrates, the case-specific approach adopted by the Com-
mission constitutes such a trap. The lack of clarity as to the
"appealability" of the Commission's order dismissing the ad-
ministrative proceedings against Adams arises at several
levels: the basis of the Commission's order of dismissal is
ambiguous because it is unclear whether the dismissal was
with or without prejudice, and, even if the dismissal were
without prejudice, it is not obvious whether Adams would
nonetheless have been "aggrieved" under s 25(a)(1) of the
Securities Exchange Act. Consequently, Adams faced the
dilemma of when to file his application for fees. Unless he
filed two fee applications--an inefficient solution--Adams
faced the risk of filing either a possibly premature or time-
barred fee application. This appears to be precisely the type
of confusion that the Administrative Conference and Con-

gress sought to avoid. See id. at 7. A bright-line rule
eliminates the high potential for confusion resulting from
determining "appealability" on a case-by-case basis and ap-
propriately avoids the practical problems that the Seventh
Circuit described. Under such a rule, applicants will have
fair notice of when the time to file an EAJA fee application
will expire. Thus, under a bright-line rule, even when an
appeal would be arguably nonjusticiable, as here, if the
governing statute relevant to the underlying agency proceed-
ing allows an appeal generally, the underlying order should
be considered "appealable" and the 30-day deadline for filing
an EAJA fee application does not expire until 30 days after
the time to appeal has expired or the appeal has concluded.
The alternative, to require a case-by-case determination of
"appealability" based on a party's aggrievement, would point-
lessly leave considerable uncertainty about when EAJA's 30-
day deadline would expire and result in an unworkable rule
that requires the filing of multiple applications and unneces-
sary involvement of the courts on appeal.

For these reasons, we hold that s 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 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. See Myers, 916 F.2d at 671-72, 674. Because Adams
could have potentially appealed the Commission's order of
dismissal pursuant to s 25(a)(1) of the Securities Exchange
Act, 15 U.S.C. s 78y(a)(1), the 30-day deadline did not begin
to run until 60 days following the order of dismissal had
lapsed.

Accordingly, we grant Adams's petition to the extent of
reversing the Commission's denial of his fee application as
untimely, and we remand the case to the Commission for a
determination of his eligibility for fees. Although we are
sympathetic to Adams's concern that "ten years of litigation
is enough," his EAJA application was not filed until 1998.
Our decision in 3M Co. v. Browner, 17 F.3d 1453 (D.C. Cir.
1994), is not dispositive on the issue of whether the Division's

position was "substantially justified," and the Commission
persuasively contends in its brief on appeal that a determina-
tion of eligibility requires review of a lengthy administrative
record that is best left to it in the first instance. See, e.g.,
Global Van Lines, Inc. v. ICC, 804 F.2d 1293, 1305 n.95 (D.C.
Cir. 1986); see also PPG Indus., Inc. v. United States, 52
F.2d 363, 365 (D.C. Cir. 1995). The cases on which Adams
relies are not to the contrary, and Adams has not shown that
a remand would be futile. See George Hyman Constr. Co. v.
Brooks, 963 F.2d 1532, 1539 (D.C. Cir. 1992).