Opinion for the Court filed by Circuit Judge ROGERS.
Riсhard 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. § 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 § 504(a)(2). The Commission reasoned that although its EAJA regulations define “final” to mean “final and unappealable,” 17 C.F.R. § 201.44(b), because Adams was not aggrieved by the order of dismissal in his favor, the order was “unappealable” at its issuancе; hence, there was no basis on which to conclude that the 30day 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 cаse until 30 days after the time for appeal under the relevant law of appealability, here 15 U.S.C. § 78y(a)(l), 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. Accordingly, 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 pursued 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 §§ 5(a), 5(b), 5(c), and 17(a) of the Securities Act of 1933, §§ 10(b) and 15(c) of the Securities Exchange Act of 1934, and Rules 10b-5, 10b-6, and 15cl-2 thereunder.
SEC v. Graystone Nash, Inc.,
On April 21, 1994, the Commission instituted administrative proceedings against Adams, pursuant to §§ 15(b)(4) and (6) of the Exchange Act.
In re Graystone Nash, Inc.,
Admin. Proc. File No. 3-8327,
On June 27, 1996, an administrative law judge dismissed proceedings that had been brought by our Division 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 аs an alternative 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,
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 heаring was not substantially justified.
In re Adams,
Initial Decision Release No. 176, Admin. Proc. File No. 3-8327,
II.
Under § 504 of EAJA, an agency shall award attorneys’ fees and costs to a prevailing party (other than the United States) unlеss the agency’s position was “substantially justified” if the requesting party submits an application “within thirty days of a final disposition in the adversary adjudication.” 5 U.S.C. § 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. §§ 3801-3812 (an administrative scheme similar to the Fаlse Claims Act, 31 U.S.C. §§ 3729-3733), and (iv) agency hearings under the Religious Freedom Restoration Act of 1993, 42 U.S.C. §§ 2000bb-2000bb-4. Id. § 504(b)(1)(C). Section 504 does not define “final disposition.” The Commission’s EAJA regulations, however, provide 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. § 201.44.
Adams’s counsel, presumably reading these provisions of the statute and the Commission’s regulation together, concluded that Adams had 90 days in which he сould file his application for fees: 60 days for the time for appeal to expire under § 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 § 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 February 11, 1998 оrder 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 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. In so doing, we readily acknowledge that the question is one of first impression, that the statutory language and the legislative history are unhelpful on the precise quеstion, and that EAJA precedent addresses only EAJA applications under § 2412 in connection with judicial proceedings. Nevertheless, we conclude that this guidance is relevant for two reasons: first, the underlying concerns that led the circuit courts of appeals (and *187 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 consequеntly 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, § 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. § 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,
Unlike § 2412, however, the EAJA provision on agency proceedings is unhelpful even after Congress’s 1985 reenactment of EAJA, with amendments, in answering the question whether the 30-day deadline for filing commences with a final and appeal-able agency order or not until the appeal time has expired or any appeal is completed. The only possibly relevant amendment to § 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 underly-' ing merits of the case have been finally determined pursuant to the appeal.
5 U.S.C. § 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 with
*188
in 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 оnly 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. 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, аt 18 (1980), 1980 U.S. Code Cong. & Admin. News at 4984, 4997; H.R.Rep. No. 99-120, at 18 n.26, 1985 U.S. Code Cong.
&
Admin. News at 146 n.26.
Compare Mass. Union of Pub. Hous. Tenants,
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 § 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,
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. § 504(c)(1), interpreted “final disposition” to mean “final and unappealable.” Model Rules for Implementation of the Equal Access to Justice Act, 51 Fed.Reg. 16,659, 16,662 (May 6, 1986). The Administrative Conference specifically 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 administrative 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 еven 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 ap-pealable” in 28 U.S.C. § 2412(d)(2)(G), the Administrative Conference clearly meant it to have the same meaning and incorporate the same concepts. Because Congress gave the Chairman of the Administrative Conference the task of overseeing the adoption by each agency of “uniform procedures,” 5 U.S.C. § 504(c)(1);
see
H.R.Rep. No. 96-1418, at 16, 1980 U.S. Code Cong. & Admin. News at 4995, as EAJA is a law of general аpplicability, the Conference’s views warrant at the very least possible
Skidmore
deference.
See United States v. Mead Corp.,
In our view, much as we concluded in
Massachusetts Union,
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.,
Congress originally enacted EAJA with the purpose of “expanding] 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, 1985 U.S. Code Cong. & Admin. News at 132. Realization of this purpose necessarily requires an interpretation of the procedural requirements of EAJA in a manner that is not unduly
*191
confusing or misleading so that they are not a “trap for the unwary.”
Myers v. Sullivan,
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, 1985 U.S. Code Cong. & Admin. News at 146. As the instant case illustrates, the case-specific approach adopted by the Commission constitutes such a trap. The lack of clarity as to the “appealability” of the Commission’s order dismissing the administrative 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 § 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 — аn 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 Congress sought to avoid. See id. at 7. A bright-line rule eliminates the high potential for confusion resulting from determining “ap-pealability” on a case-by-case basis and appropriately avoids the practical problems that the Seventh Circuit described. Under such a rule, applicants will have fair noticе 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 proceeding 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 alternаtive, to require a case-by-case determination of “appealability” based on a party’s ag-grievement, would pointlessly leave considerable uncertainty about when EAJA’s 30day deadline would expire and result in an unworkable rule that requires the filing of multiple applications and unnecessary involvement of the courts on appeal.
For these reasons, we hold 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 appliсable 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,
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,