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PUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 95-1166
PAUL A. BLACKBURN,
Petitioner,
v.
ROBERT B. REICH, SECRETARY OF
LABOR; METRIC CONSTRUCTORS,
INCORPORATED,
Respondents.
On Petition for Review of an Order
of the United States Department of Labor.
(86-
ERA-
4)
Argued: October 31, 1995
Decided: March 26, 1996
Before HALL and WILLIAMS, Circuit Judges, and BUTZNER,
Senior Circuit Judge.
_________________________________________________________________
Vacated and remanded by published opinion. Judge Hall wrote
the
majority opinion, in which Senior Judge Butzner joined. Judge
Wil-
liams wrote a dissenting opinion.
_________________________________________________________________
COUNSEL
ARGUED: William Reynolds Williams, WILLCOX, MCLEOD,
BUYCK & WILLIAMS, P.A., Florence, South Carolina, for Peti-
tioner. Paul Frieden, UNITED STATES DEPARTMENT OF
LABOR, Washington, D.C., for Respondents. ON BRIEF: Thom-
as S. Williamson, Jr., Solicitor of Labor, Gail V. Coleman,
Deputy
Associate Solicitor, William J. Stone, Counsel for Appellate
Litiga-
tion, UNITED STATES DEPARTMENT OF LABOR, Washington,
D.C., for Respondent Secretary.
_________________________________________________________________
OPINION
HALL, Circuit Judge:
Paul A. Blackburn seeks review of the Secretary of Labor's
final
decision that denied attorney's fees for the prosecution of a
prior
appeal to this court. We vacate the Secretary's decision and
remand
for reconsideration of Blackburn's fee petition.
I
Metric Constructors, Inc., was an independent contractor that
per-
formed construction work at a nuclear power plant in South
Carolina.
Blackburn, an electrician with Metric, was fired on September
5,
1984, for his refusal to work at the plant unless protective lead
shield-
ing was put in place at the worksite. He filed a complaint
against Met-
ric with the Secretary of Labor under the employee protection
provisions of the Energy Reorganization Act (ERA), 42 U.S.C.
§ 5851 (1988)1. After finding a violation and ordering
Metric to rein-
state Blackburn, the Secretary remanded the case to an
administrative
law judge (ALJ) for a determination of back pay, compensatory
dam-
ages, and attorney's fees.
The ALJ recommended an award of back pay covering the period
of September 5, 1984, through December 31, 1987, compensatory
damages of $10,000 for emotional distress and mental anguish,
and
attorney's fees and costs. Both parties filed exceptions to the
recom-
_________________________________________________________________
1 The statute was amended extensively in 1992, although
the portions
of the statute that are relevant to this appeal, subsections
(b)(2)(B)
through (g), remained unchanged. See Pub. L. 102-
486,
Title XXIX,
§ 2902(a)-
(g),
(h)(2), (3). We are dealing with the pre-
amendment
ver-
sion here.
2
mendations. In a decision issued October 30, 1991, the
Secretary
determined that back pay could not be awarded for the period
after
December 31, 1984, when Metric lost the contract for work at
the
nuclear plant. With regard to compensatory damages, the
Secretary
viewed Blackburn's claim as being based on the stress resulting
from
"diminished financial situation brought about because of his
inability
to find a job following his termination from Metric." Finding
that
Blackburn had not suffered any financial loss as a result of his
termi-
nation, the Secretary ruled that an award for emotional distress
was
inappropriate. Blackburn sought review in this court.2 42
U.S.C.
§ 5851(c)(1).
We affirmed the decision with regard to the back pay award. We
held, however, that injuries, such as loss of self esteem arising
from
the termination itself, could justify an award of compensatory
dam-
ages despite the absence of adverse financial consequences.
Accord-
ingly, we remanded to the Secretary for a redetermination of
compensatory damages. Blackburn v. Martin, 982 F.2d 125
(4th Cir.
1992) (Blackburn I).
On August 16, 1993, the Secretary ordered Metric to pay $5,000
in compensatory damages. Two weeks later, Blackburn filed a peti-
tion for costs and attorney's fees covering the period from
November
15, 1991, through August 27, 1993. On December 27, 1994, the Sec-
retary awarded attorney's fees and costs for Blackburn's
lawyers'
efforts after the remand in Blackburn I, but he denied all
fees and
costs incurred in relation "to preparing and conducting the
appeal" to
this court. The denial was expressly based on the Secretary's
view
that he does not have the statutory authority to award fees for
work
performed before an appellate court. Blackburn now appeals this
fee
ruling.
II
42 U.S.C. § 5851(b)(2)(B) provides that, if an order is
entered
granting relief to a person who has suffered discrimination in
viola-
tion of the ERA, the Secretary
_________________________________________________________________
2 Blackburn did not seek review of the Secretary's
decision with
regard
to attorney's fees and costs.
3
shall assess against the person against whom the order is
issued a sum equal to the aggregate of all costs and expenses
(including attorneys' and expert witness fees) reasonably
incurred, as determined by the Secretary, by the complainant
for, or in connection with, the bringing of the complaint
upon which the order was issued.
The Secretary's ruling was expressly based on the majority
opinion
in DeFord v. Secretary of Labor, 715 F.2d 231 (6th Cir.
1983), which,
the Secretary reasoned, "squarely held that neither the court nor
the
Secretary is authorized under the ERA to award costs, including
attor-
ney's fees, for proceedings on appeal to the court of appeals."
As a
matter of statutory interpretation, our review is de
novo.3
_________________________________________________________________
3 Although the Secretary now contends that we should give
deference
to his interpretation of the statute under the rule announced in
Chevron,
U.S.A., Inc. v. Natural Resources Defense Council, Inc.,
467 U.S. 837
(1984), the decision to deny appellate fees was apparently based
not on
his interpretation of the statute but, rather, on his belief that
he was
required to follow the holding in DeFord. The order on
appeal reads in
relevant part:
Based on Deford, I disallow the entries[in the fee
petition] that
relate to preparing for and conducting the appeal. Contrary to
Complainant's arguments, the court in DeFord squarely
held that
neither the court nor the Secretary is authorized under the
ERA
to award costs, including attorney's fees, for proceedings on
appeal to the court of appeals.[ ] The Secretary has applied
this
holding in other cases arising under analogous statutes.
See
Spinner v. Yellow Freight Sys., Inc. . . . On the other
hand, con-
trary to Respondent's position, DeFord does not foreclose
an
award of fees incurred by a complainant in proceedings before
the Secretary on remand.
(Spinner, which does contain a cf. citation to
DeFord, did
not involve
attorney's fees for appellate work, and the holding in
DeFord was in
no
way "applied".) Deford, which predated Chevron,
does not
mention,
much less give deference to, whatever the Secretary's view of the
statute
was in 1984. Because the Secretary based his decision in the
instant case
on judicial precedent rather than his own interpretation of the
statute, we
owe "no more deference than we would any lower court's analysis
of the
law." Thomas Hodgson & Sons, Inc. v. F.E.R.C. , 49
F.3d 822, 826
(1st
Cir. 1995).
4
A
Although the DeFord majority's analysis is not entirely
clear, we
understand it to proceed as follows: Section 5851(b)(2)(B) allows
the
Secretary to award attorney's fees as part of "costs and
expenses", and
the court of appeals clearly should award "costs" to the party
prevail-
ing on appeal (presumably under Fed. R. App. p. 39); therefore,
the
Secretary and the court have mutually exclusive authority to
award
"costs" for the portions of the case at the different levels, and
the Sec-
retary's cost-
awarding
authority (which includes his fee-
awarding
authority) is limited to the administrative sphere"as a
jurisdictional
or quasi-
jurisdictional
matter." Id. at 232. The DeFord majority also
noted that, while the "costs and expenses" under § 5851 had
to be
"for, or in connection with, the bringing of the complaint"
against the
employer, the appeal in that case involved a "distinguishable
cause-
-
complaints against the Secretary arising out of dissatisfaction
with his
order." Id. at 233. Neither prong of this rationale
withstands
scrutiny.
In this circuit, "[t]he only costs generally taxable in the court
of
appeals are: (1) the docketing fee if the case is reversed; and
(2) the
cost of printing or reproducing briefs and appendices,
including
exhibits." Internal Operating Procedures (IOP) 39.1. Other costs
asso-
ciated with an appeal, such as the fee for preparing the record,
are tax-
able in the district court. Fed. R. App. P. 39(e); IOP 39.1.
Thus, in
the usual case, two levels-
-
the
district court and the court of appeals
-
-
are
satisfying the entitlement to "costs" incident to the appeal.
There is, in short, no impenetrable barrier between the various
levels
of the court system as far as costs are concerned, and, as a
general
matter, we see no problem whatsoever with permitting the
Secretary
to award appeal-
related
"costs" when the appeal is from an agency to
the court of appeals.4
The other basis for the holding in DeFord is that the
appeal
involved a dispute with the Secretary rather than the respondent-
employer and, therefore, on appeal the complainant"did not incur
any
attorneys' fees or other costs for litigation of claims arising
from the
complaint . . . ." Id. at 233. Every appeal arises from
dissatisfaction
_________________________________________________________________
4 In Blackburn I, neither party filed a bill of
costs with the
clerk of the
court of appeals.
5
with the order appealed from, and, in that sense, every appeal
involves a dispute with the decisionmaker. But it was Metric's
suc-
cessful litigation position at the administrative level that
necessitated
Blackburn's first appeal, and, as we explain below, the legal
fees
incurred in pursuing that appeal were every bit as"in
connection
with" his claim as were the fees for the administrative
efforts.5
B
The Secretary raises some additional arguments not addressed
in
DeFord, one of which looks to the arrangement of the
subsections in
§ 5851 for support. Section 5851(b) authorizes the Secretary
to enter
remedial orders that may include reinstatement, back pay, and
com-
pensatory damages. The next three subsections relate directly to
any
such orders: Subsection (c) provides for review of the
Secretary's
order in the court of appeals, subsection (d) gives the Secretary
the
right to file a separate action in district court to enforce its
order, and
subsection (e) gives the individual complainant the right to file
a sep-
arate enforcement action in district court. Only subsections (b)
and
(e), however, contain specific provisions for attorney's fees,
and the
Secretary argues that the absence of a similarly specific
provision in
(c) evinces Congressional intent to limit his authority to award
fees
to the administrative proceedings alone. To whatever degree
this
arrangement tilts in favor of the Secretary's position, it is far
from
enough to overcome other, brighter indicators of Congressional
intent.6
__________________________________________________________
_______
5 As far as attorney's fees are concerned, the situation
would be pre-
cisely the same had Blackburn I involved an appeal by
Metric from,
say,
the Secretary's decision awarding four months' back pay.
Blackburn
would have had to defend the award, yet, under the Secretary's
reason-
ing, he would have been unable to recoup attorney's fees expended
to
uphold the award.
6 It should be obvious that it is necessary to have at
least the two
fee
provisions that are in the statute. Because the enforcement
action is a
separate action that is initiated in the district court and which
never
comes before the Secretary, a separate authorization to award
fees,
directed to the district court rather than the Secretary, was
necessary in
(e).
6
At the core of much of the Secretary's argument is the premise
that
"[t]he bringing of a complaint under the whistleblower provision
of
the ERA is a completely separate action from filing a petition
for
review under that provision." Respondent's brief at 12. Were
this
actually the case, we might be persuaded that the Secretary is
pre-
cluded from awarding appellate fees. But an appeal is simply one
step
in the overall adjudicatory scheme, not a "separate action."
See
DeFord, 715 F.2d at 233 ("[R]eview in the Court of Appeals
is not
a new action . . . . [I]t is simply a continuation of the action
before
the Secretary.") (Merritt, J., dissenting). A semantically and
logically
more defensible interpretation of the phrase "in connection with
the
bringing of the complaint" is "in connection with the claim";
very
simply, all litigation-
related
efforts should be compensable.
C
The overarching purpose of the statute-
-
the
protection of
whistleblowers-
-
militates
against an interpretation that would make
anti-
retaliation
actions more difficult to maintain. In Local 17,
Internat'l Ass'n of Heat and Frost Insulators v. Young,
775 F.2d 871
(7th Cir. 1986), the court of appeals affirmed an award of
attorney's
fees to plaintiffs for successfully resisting the defendants'
petition for
certiorari to the Supreme Court, despite the absence of any
specific
statutory language giving the lower court the authority to award
fees
for appellate work. In finding that Congress intended that the
lower
court have such authority, the appeals court emphasized the
overall
purpose of the statutory scheme at issue:
If disgruntled union members, as prevailing plaintiffs,
were forced to incur costs for unsuccessful, fruitless Union
appeals, this would have a chilling effect on union mem-
bers' ability to afford challenging the union leadership. Situ-
ations would develop where union officials could willfully
violate the law, yet recognize an inability on the part of
their
membership to challenge the Local hierarchy in court due to
a lack of funds. . . . [D]ue to the uneven bargaining
positions
of the parties, the purpose of the LMRDA would be frus-
trated.
7
Id. at 873. The same rationale should apply with equal or
greater
vigor in the realm of nuclear safety.7
D
The Secretary's final argument is a variation on the others:
"When
Congress wants to award attorney's fees and costs for judicial
review,
it knows how to do so." Respondent's brief at 16. The Secretary
has
not pointed us to any statutory scheme wherein attorney's fees
are
recoverable for some, but less than all, the litigation expenses
in a sin-
gle action. Quite the opposite appears to be the general rule; if
fees
are authorized at all, they are recoverable for all phases of the
litiga-
tion, and, moreover, appellate fees can be awarded by a lower
court.
See, e.g., Goodwin v. Metts, 973 F.2d 378,
384-
85
(4th Cir. 1992) (per
curiam) (reviewing appellate fees awarded under 42 U.S.C. §
1988 by
the district court); McManama v. Lukhard, 616 F.2d 727,
730 (4th
Cir. 1980) (per curiam) (remanding to the district court "for
assess-
ment of additional attorneys' fees . . . to compensate the
plaintiffs for
the expense of their successful defense of [defendant's]
appeal").
The authorities cited by the Secretary do not hold otherwise.
In
both Roosevelt Campobello International Park Commission
v.
U.S.E.P.A., 711 F.2d 431 (1st Cir. 1983), and Key
Tronic Corp.
v.
United States, 114 S. Ct. 1960 (1994), the issue was
whether attor-
ney's fees could be awarded at all for a distinct type of
action.8 Nei-
ther of these cases holds that attorney's fees may be recoverable
for
work related to only one of the various levels of a given
contested
case.
_________________________________________________________________
7 Blackburn's lawyers claimed some $10,000 in fees for the
appeal in
Blackburn I. The prospect of an unrecoverable expenditure
of this mag-
nitude, particularly when balanced against the level of recovery
involved
in this case, illustrates how the threat of an appeal could well
diminish
a complainant's chances of achieving full relief under the
statute.
8 In Roosevelt Campobello, the issue was whether
fees could be
awarded to persons who initiated a petition for review in the
court of
appeals under 42 U.S.C. § 1369(b). In Key Tronic, the
issue was
whether
litigation-
related
attorney's fees expended in a contribution action could
be deemed a recoverable "necessary cost of response" under
§ 107(a)(4)(B) of CERCLA.
8
III
We hold that attorney's fees related to prosecuting an appeal
before
the court of appeals are "costs . . . incurred . . . in
connection with
[ ] the bringing of [a] complaint" under § 5851(b), and,
therefore, the
Secretary has the authority to award such fees. We vacate the
Secre-
tary's final decision and remand with instructions to
reconsider
Blackburn's third fee petition in light of the foregoing
opinion.
VACATED AND REMANDED
WILLIAMS, Circuit Judge, dissenting:
I respectfully dissent. The majority concludes that the Secretary
has
the authority to award attorneys' fees and expenses incurred in
an
appeal because the costs of the appeal were incurred"in
connection
with" the bringing of a complaint under the Energy
Reorganization
Act (ERA). See 42 U.S.C.A. § 5851(b)(2)(B) (West
1995). In reach-
ing its conclusion, the majority improperly applies a de novo
standard
of review to the Secretary's interpretation of §
5851(b)(2)(B), when
in fact we should apply the test enunciated by the Supreme Court
in
Chevron, U.S.A., Inc. v. Natural Resources Defense Council,
Inc., 467
U.S. 837, 842-
43
(1984). Under Chevron, I conclude that the Secre-
tary's interpretation is a permissible construction of a
statutory provi-
sion whose meaning is clarified by neither the statutory language
nor
the legislative history. Additionally, disregarding the
majority's incor-
rect standard of review, I believe that the majority's conclusion
is
supported by flawed reasoning.
I.
The majority departs from controlling Supreme Court and Fourth
Circuit precedent, and incorrectly conducts a plenary review of
the
Secretary's interpretation of the statute. See majority
op. at 4 ("As
a
matter of statutory interpretation, our review is de
novo."). Although
de novo review is appropriate when reviewing the construction of
a
statute by an Article I or III court, see, e.g. ,
United States v.
Hall, 972
F.2d 67, 69 (4th Cir. 1992), the Supreme Court in Chevron
has
directed a different standard for review of an administrative
agency's
9
interpretation of a statute or regulation, see Bechtel Constr.
Co. v.
Secretary of Labor, 50 F.3d 926, 932-
33
(11th Cir. 1995) (applying
the Chevron analysis to the Secretary's interpretation of
a provision
under the ERA because of the Supreme Court's recognition of
the
Secretary's expertise in employee protection).1 Under
Chevron,
we
_________________________________________________________________
1 The majority contends that deference under
Chevron is
inappropriate
under the reasoning of Thomas Hodgson & Sons, Inc. v.
FERC, 49
F.3d
822 (1st Cir. 1995), "[b]ecause the Secretary based his decision
. . . on
judicial precedent rather than his own interpretation of the
statute."
Majority op. at 4 n.3. Basically, the majority asserts that the
Secretary
reached his decision based "on his belief that he was required to
follow
the holding in Deford," majority op. at 4 n.3, rather than
by applying
his
expertise in employee protection and choosing to adopt the
construction
of the Sixth Circuit. I cannot agree with the majority's
assertion that the
Secretary believed he was bound by DeFord; therefore, I
conclude that
deference to the Secretary is required under Chevron.
The reasoning behind the majority's justification for not
applying
Chevron contains a number of fatal flaws. First, the
language the major-
ity employs in defending its application of a de novo standard is
quite
equivocal: The majority asserts that the Secretary's"decision to
deny
appellate fees was apparently based . . . on his
belief that he
was required
to follow the holding in DeFord." Majority op. at 4 n.3
(emphasis
added). By using such ambivalent terms, the majority implicitly
con-
cedes that its conclusions are weakly supported. Second, the
majority
bases its conclusion that the Secretary believed he was bound by
DeFord
on what it labels as the "relevant" portion of the Secretary's
order, major-
ity op. at 4 n.3; however, in focusing on a four-
sentence
excerpt from the
order, the majority contravenes the rule of construction that
documents
should be construed in their entirety, see Fort Sumter Tours,
Inc. v.
Babbitt, 66 F.3d 1324, 1332-
33
(4th Cir. 1995) (construing a contract),
petition for cert. filed, 64 U.S.L.W. 3593 (U.S. Feb. 23,
1996) (No. 95-
1353); Wood v. Santa Barbara Chamber of Commerce, Inc.,
705 F.2d
1515, 1523 (9th Cir. 1983) (interpreting a district court's
injunction in
the context of its entire order), cert. denied , 465 U.S.
1081 (1984),
and
ignores other clear indications in the order that the Secretary
knew he
was not compelled to follow DeFord, see discussion
infra.
Third, it is
beyond dispute that an agency is not bound by circuit precedent
except
in controversies that arise within the jurisdiction of that
circuit. See,
e.g.,
Akindemowo v. INS, 61 F.3d 282, 286 (4th Cir. 1995);
see also
Hodgson,
49 F.3d at 830 (Cyr, J., concurring) (pointing out that decisions
from the
Fourth and Ninth Circuits do not bind an agency adjudicating a
10
first determine if Congress has "provide[d] guidance to the court
for
resolution of the issue" through the statutory language or the
_________________________________________________________________
controversy that arose in the First Circuit). I find it simply
absurd to
posit, as the majority does, that the Secretary was unaware of
this ele-
mentary principle and believed he was bound by Sixth Circuit
precedent
when deciding a controversy that arose in the Fourth Circuit.
See
Bechtel, 50 F.3d at 931-
32
(illustrating that the Secretary continued to
apply his own statutory interpretation of provisions of the ERA
in cir-
cuits that have no binding precedent despite the fact that
another circuit
disagreed with the Secretary's construction); see also
Akindemowo, 61
F.3d at 286 (observing that the Board of Immigration Appeals
continued
to apply its interpretation of a deportation statute in all
circuits except
those that had rejected the Board's interpretation). Finally, the
majority
seeks to minimize the importance of DeFord by noting that
it was
decided before Chevron. This argument ignores the fact
that
Chevron did
not announce a "new rule"; indeed, prior to Chevron, the
Supreme Court
had consistently adhered to the principle that courts should
defer to the
reasonable interpretations of administrative agencies rather than
substi-
tuting their own judgment. See, e.g., Train v. Natural
Resources
Defense
Council, 421 U.S. 60, 87 (1975); Udall v. Tallman,
380 U.S. 1, 16-
18
(1965). Thus, I find the majority's assertion that the Secretary
believed
he was bound by DeFord to be unsupported and the reasoning
behind the
majority's decision to apply a de novo standard of review to be
unsound.
To the contrary, because the Secretary exercised his discretion
in
choosing to adopt the reasoning of the Sixth Circuit in
DeFord, we
must
apply the deference mandated by Chevron. The language of
the Secre-
tary's order persuades me that the Secretary did not believe that
DeFord
controlled his decision. In his order, the Secretary not only
clearly
embraced the interpretation of § 5851(b)(2)(B) adopted by the
Sixth Cir-
cuit, but also implicitly acknowledged his authority to reject
that inter-
pretation. The order begins by casting the dispute in adversarial
terms:
He notes that Metric relies on DeFord in requesting the
Secretary to
deny
Blackburn's petition for fees incurred on appeal and observes
that Black-
burn "urges the Secretary not to follow DeFord." (J.A. at
39.) The Secre-
tary then holds that he is denying the petition"[b]ased on
DeFord,"
(J.A.
at 40,) and "reject[s Blackburn]'s argument that the court's
reasoning in
DeFord is flawed" based on the Secretary's own
interpretation of
§ 5851(b)(2)(B) (J.A. at 40 n.1.). The Secretary concludes by
expressing
approval of the holding in DeFord by remarking that he
"has applied
[it]
in other cases arising under analogous statutes." (J.A. at
40.)
11
appropriate legislative history. Akindemowo v. INS, 61
F.3d 282, 284
(4th Cir. 1995). If so, our inquiry is complete and we proceed no
fur-
ther. Chevron, 467 U.S. at 842-
43.
If, however, we are unable to dis-
cern "the unambiguously expressed intent of Congress," id.
at 843,
then Chevron "directs us not to impose automatically our
own inter-
pretation of the statute, but rather to apply the interpretation
of the
administrative agency charged with implementing the statute, pro-
vided the agency's interpretation `is based on a permissible
construc-
tion of the statute.'" Akindemowo, 61 F.3d at 284 (quoting
Chevron,
467 U.S. at 843). Employing the Chevron analysis, I
conclude that the
intent of Congress is unclear regarding the award of attorneys'
fees
for the prosecution of an appeal under the ERA and that the
Secre-
tary's interpretation of § 5851(b)(2)(B) is permissible.
A.
Under the first prong of Chevron, I conclude that neither
the statu-
tory language nor the legislative history provides adequate
guidance
to determine the intent of Congress with respect to whether the
Secre-
tary has the authority to award attorneys' fees and expenses
incurred
in a successful appeal under the ERA. Section 5851(b)(2)(B)
provides
that a plaintiff entitled to relief under the ERA may recover
"all costs
and expenses (including attorneys' and expert witness fees)
reason-
ably incurred . . . for, or in connection with , the
bringing of the com-
plaint." 42 U.S.C.A. § 5851(b)(2)(B) (emphasis added). I find
the
statutory language to be ambiguous because the statute does
not
plainly state whether attorneys' fees incurred in an appeal are
incurred
"in connection with" the bringing of the complaint. See DeFord
v.
__________________________________________________________
_______
I cannot divine from the order that the Secretary believed he was
com-
pelled to follow DeFord. The Secretary never stated that
he was bound
by DeFord, nor does he hold that the controversy was
controlled by
DeFord. Indeed, the Secretary's rejection of Blackburn's
arguments for
reasons other than stare decisis and the Secretary's expression
of
approval of the holding in DeFord suggest the opposite:
The Secretary
chose to follow DeFord because of its persuasive
reasoning. Therefore,
because the Secretary, applying his expertise, exercised his
discretion in
adopting the Sixth Circuit's interpretation of §
5851(b)(2)(B), deference
under Chevron is required.
12
Secretary of Labor, 715 F.2d 231, 232 (6th Cir. 1983)
("[The statute]
does not by clear language confer authority upon the Secretary
to
award fees for appellate proceedings.").
Because the meaning of the phrase "in connection with" is not
clear
from the statutory language, we are required to look beyond the
plain
language of the statute to the appropriate legislative history
for guid-
ance. Robinson v. Shell Oil Co., 70 F.3d 325, 329 (4th
Cir. 1995) (en
banc). In searching the legislative history, we must confine
ourselves
to a review of the official Committee Reports on the bill, the
"authori-
tative source for finding the Legislature's intent." Garcia v.
United
States, 469 U.S. 70, 76 (1984). I agree with the
DeFord court
that the
legislative history is silent on whether attorneys' fees and
expenses
incurred for an appeal are recoverable. See DeFord, 715
F.2d at 233.
Thus, I am unable to discern the "unambiguously expressed intent
of
Congress" through either the statutory language or the
legislative
history.2 Chevron, 467 U.S. at 843.
B.
Having found the search for clear congressional intent to be
unavailing, I proceed to the second prong of Chevron:
Whether the
Secretary's interpretation of the provision is permissible.
See
Akindemowo, 61 F.3d at 284 (proceeding to a determination
of
whether an agency's construction of a statute was permissible
after
_________________________________________________________________
2 Although the majority bases its decision on its belief
that the
award
of attorneys' fees incurred in successful appeals under the ERA
is conso-
nant with the intent of Congress, see majority op. at 7-
8;
see also discus-
sion infra part II, I submit that the majority's analogy
to Local
17,
International Association of Heat & Frost Insulators &
Asbestos Work-
ers v. Young, 775 F.2d 870 (7th Cir. 1985), is
insufficient to prove con-
gressional intent. Under Chevron, we may avoid the second
prong of the
analysis only if we are able to divine the "unambiguously
expressed
intent of Congress." Chevron, 467 U.S. at 843. By citing a
case
applying
a different standard of review to a statute dealing with
different subject
matter, the majority has failed to demonstrate the statutory
clarity
required under Chevron. See Russello v. United
States, 464 U.S.
16, 25
(1983) ("Language in one statute usually sheds little light upon
the mean-
ing of different language in another statute . . . ."); see
also United
States
v. Mitchell, 39 F.3d 465, 470 n.7 (4th Cir. 1994)
(same).
13
finding that neither the statutory language nor the legislative
history
indicated the intent of Congress). Under the second prong of
the
Chevron analysis, we may not "simply impose[our] own
construction
on the statute, as would be necessary in the absence of an
administra-
tive interpretation." Chevron, 467 U.S. at 843 (footnote
omitted);
accord Akindemowo, 61 F.3d at 284. Rather, we must apply
the agen-
cy's interpretation of the statute if it "give[s] reasonable
content to the
statute's textual ambiguities." See Department of Treasury,
IRS v.
FLRA, 494 U.S. 922, 933 (1990).
In determining whether the agency's interpretation is
reasonable,
we need not "conclude that the agency construction was the only
one
it permissibly could have adopted to uphold the construction, or
even
the reading the court would have reached if the question
initially had
arisen in a judicial proceeding." Chevron, 467 U.S. at 843
n.11.
Instead, we should "accord considerable deference to the
agency's
interpretation of the statute, and `we should not disturb [that
interpre-
tation] unless it appears from the statute or its legislative
history that
the accommodation is not one that Congress would have
sanctioned.'"
Akindemowo, 61 F.3d at 284 (quoting Chevron , 467
U.S. at 845);
see
also Good Samaritan Hosp. v. Shalala, 113 S. Ct. 2151,
2159 (1993)
("Confronted with an ambiguous statutory provision, we
generally
will defer to a permissible interpretation espoused by the
agency
entrusted with its implementation."). This deference is
appropriate
because "agencies not only possess the expertise to implement
stat-
utes and implement them at Congressional directive, but also
[they]
formulate their interpretations of statutory language based on
policy
considerations, which are manifested by the elected branches of
our
federal system." Akindemowo, 61 F.3d at 284. In effect,
"federal
judges-
-
who
have no constituency-
-
have
a duty to respect legitimate
policy choices made by those who do." Chevron , 467 U.S.
at 866.
Under the second prong of the Chevron analysis, I conclude
that
the interpretation advanced by the Secretary is a permissible
construc-
tion of the statute, even if it is one with which reasonable
jurists might
disagree. Various reasons compel this conclusion: the
Secretary's
construction accords with the "American Rule" regarding
allocation
of costs; the structure of the statute suggests that attorneys'
fees
incurred in an appeal are not recoverable; and an appeal from an
unfa-
14
vorable ruling by the Secretary is an action separate from the
initial
complaint lodged against the employer.
Under the American Rule, a cornerstone of our jurisprudence
for
two hundred years, each party is required to bear the cost of his
own
attorneys' fees absent explicit congressional authorization to
the con-
trary. See Key Tronic Corp. v. United States, 114 S. Ct.
1960, 1965
(1994); Alyeska Pipeline Serv. Co. v. The Wilderness
Soc'y, 421 U.S.
240, 249-
50
(1975). The Alyeska court recognized only two excep-
tions to the American Rule: a court may award attorneys' fees if
(1)
the opposing party brings, defends, or continues the litigation
in bad
faith, or (2) an attorney acts to preserve or obtain a benefit
for a plain-
tiff under the "common fund doctrine." See Kollsman, a Div. of
Sequa
Corp. v. Cohen, 996 F.2d 702, 707 n.4 (4th Cir. 1993).
The interpretation advanced by the Secretary is in accord with
the
American Rule. As discussed above, I am unable to discern the
intent
of Congress regarding the award of attorneys' fees incurred in
suc-
cessful appeals by plaintiffs under the ERA; thus, I cannot find
the
"explicit congressional authorization" required for the award of
attor-
neys' fees under the American Rule. See Key Tronic Corp.,
114 S. Ct.
at 1965. In addition, neither exception to the American Rule
applies:
Blackburn has not alleged that the litigation was brought,
continued,
or defended in bad faith; and the common fund doctrine is
clearly
inapplicable under these circumstances.
The structure of the statute also demonstrates that the
Secretary's
interpretation is not unreasonable. Although Congress explicitly
pro-
vided for the recovery of attorneys' fees in the subsections
discussing
administrative proceedings before the Secretary, see 42
U.S.C.A.
§ 5851(b)(2)(B), and actions before the district court to
enforce an
order of the Secretary, see 42 U.S.C.A.§ 5851(e) (West
1995), Con-
gress conspicuously failed to provide for the award of attorneys'
fees
in the subsection discussing review before the courts of appeals,
see
42 U.S.C.A. § 5851(c) (West 1995).3 This is a
persuasive
indication
_________________________________________________________________
3 Although this argument also supports a determination
that the
statute
is not ambiguous in the first instance, I believe it is
insufficient alone to
demonstrate the clear intent of Congress required under
Chevron in
light
of the ambiguity inherent in the phrase "in connection with."
15
that Congress did not intend to award attorneys' fees incurred
in
appeals under the ERA, because "`where Congress includes
particular
language in one section of a statute but omits it in another
section of
the same Act, it is generally presumed that Congress acts
intentionally
in the disparate inclusion or exclusion.'" Russello v. United
States,
464 U.S. 16, 23 (1983) (quoting United States v. Wong Kim
Bo, 472
F.2d 720, 722 (5th Cir. 1972)); see also, e.g. , Key
Tronic, 114
S. Ct.
at 1967 (stating that where Congress included attorneys' fee
awards
in two sections but omitted them in two others, the"omissions
strongly suggest a deliberate decision not to authorize such
awards");
2A Norman J. Singer, Statutes and Statutory Construction
§ 47.23,
at
217 (5th ed. 1992) ("The force of the maxim [that all
omissions
should be understood as exclusions] is strengthened where a thing
is
provided in one part of the statute and omitted in another."
(footnote
omitted)).
Finally, I disagree with the majority and believe the
Secretary's
interpretation that attorneys' fees incurred during an appeal are
not
incurred "in connection with" the complaint is not
unreasonable,
because an appeal to this court from an unfavorable ruling of the
Sec-
retary is an action separate from the complaint itself. As the
DeFord
court noted,
the award of costs (including attorneys' fees) allowable
under section 5851 is specifically limited to encompass
those incurred "for, or in connection with, the bringing of
the complaint upon which the [Secretary's] order was
issued." Before this court [the employee] did not incur any
attorneys' fees or other costs for litigation of claims
arising
from the complaint upon which the Secretary's order was
issued. That complaint was lodged against [the employer].
Rather, [the employee] incurred attorneys' fees and other
costs before this court in pursuit of a distinguishable cause
-
-
complaints
against the Secretary arising out of dissatisfac-
tion with his order.
DeFord, 715 F.2d at 233 (first alteration in original). In
support of
its
position, the majority asserts that under the Secretary's
construction
of the statute, had Blackburn prevailed before the Secretary, he
would
have been unable to recoup attorneys' fees and expenses incurred
in
16
defending his award on appeal. See majority op. at 5 n.4.
This is inac-
curate; had Blackburn prevailed below, he would not be a
proper
party to an appeal by the employer. See Ellis Fischel State
Cancer
Hosp. v. Marshall, 629 F.2d 563, 566 & n.3 (8th Cir.
1980) (dismiss-
ing employee as a party to the appeal and refusing to award
attorneys'
fees under § 5851 because the employee was not"adversely
affected
or aggrieved by the Secretary's order"). Rather, the Secretary
would
have been the party responsible for defending the validity of
the
award on appeal. Obviously, Blackburn would be unlikely to
incur
attorneys' fees and expenses in an action to which he is not a
party.
For these reasons, I find the interpretation advanced by the
Secre-
tary to be permissible and, therefore, Chevron compels me
to defer to
it. Accordingly I would hold that Blackburn is not entitled to
an
award of attorneys' fees pursuant to § 5851(b)(2)(B) because
Black-
burn's fees were not incurred "in connection with" the bringing
of his
complaint under the ERA.
II.
In addition to believing that the majority incorrectly employed
a
plenary standard of review, I find the majority's conclusion that
attor-
neys' fees incurred in an appeal are incurred "in connection
with" the
bringing of the complaint to be supported by flawed reasoning.
The
majority's decision rests on its belief that Congress would
have
wanted plaintiffs under the ERA to be awarded attorneys' fees
and
expenses incurred in appeals from unfavorable rulings of the
Secre-
tary because such awards would advance the "overarching
purpose"
of the statute, see majority op. at 7-
8;
the majority holds this belief
despite the absence of any direct or indirect evidence of
Congress's
intent.
In discussing the intent of Congress,4 the majority is
unable to
_________________________________________________________________
4 Nowhere in its opinion does the majority assert that
congressional
intent is unambiguously manifested by the statutory language.
Indeed,
even though the majority fails to state explicitly that it found
the statu-
tory language to be ambiguous, we must assume that it did
because oth-
erwise the majority would be unable to reach its analysis of
legislative
intent. See United States v. Southern Management Corp.,
955 F.2d 914,
920 (4th Cir. 1992) ("If the words [of a statute] convey a clear
meaning,
courts may not sift through secondary indices of intent to
discover alter-
native meanings.").
17
direct our attention to salient portions of the official
Committee
Reports evidencing an intent to authorize the Secretary to award
attor-
neys' fees incurred by plaintiffs under the ERA in the successful
pros-
ecution of appeals. See Garcia, 469 U.S. at 76. Instead,
to determine
congressional intent, the majority relies on Local 17,
International
Association of Heat & Frost Insulators & Asbestos
Workers v.
Young,
775 F.2d 870 (7th Cir. 1985), in which the Seventh Circuit
exercised
de novo review of a district court's interpretation of an
unrelated stat-
ute. See majority op. at 7-
8.
In Young, the Seventh Circuit held that a district court
had the
power under § 102 of the Labor-
Management
Reporting & Disclosure
Act of 1959 (LMRDA), 29 U.S.C.A. § 412 (West 1985), to
award
attorneys' fees incurred by plaintiffs in opposing an
unsuccessful peti-
tion for certiorari to the Supreme Court. Young , 775 F.2d
at 873. In
reaching its decision, the court first noted that in the context
of award-
ing attorneys' fees, the Supreme Court had expansively
interpreted
the equitable provision in the LMRDA authorizing courts to
grant
"such relief (including injunctions) as may be appropriate."
See id.
at
872-
73
(internal quotation marks omitted). The court then reasoned
that if "prevailing plaintiffs [ ] were forced to incur
costs for unsuc-
cessful, fruitless Union appeals, this would have a chilling
effect on
union members' ability to afford challenging the union
leadership."
Id. at 873. In other words, the court felt that to rule
otherwise
would
frustrate the intent of Congress: Because union members
prevailing
in the district court would likely be unable to muster the
financial
resources to oppose the appeals of the union leadership,
members
would be effectively deprived of the protection Congress sought
to
provide under the statute. See id.
Young is distinguishable from this case and thus provides
no sup-
port for the proposition that under the ERA attorneys' fees
incurred
in a successful appeal are recoverable by the plaintiff. Most
impor-
tantly, Young involved a review by a court of appeals of a
district
court's interpretation of a statute; in those circumstances, a de
novo
review of the district court's construction is appropriate.
See, e.g.,
Hall, 972 F.2d at 69. Here, however, we are charged with
reviewing
an administrative agency's interpretation of a statute, and we
must
apply the more deferential Chevron analysis. See
Akindemowo, 61
F.3d at 284.
18
Furthermore, ignoring the different standard of review, the
ratio-
nale employed by the Young court does not apply to
Blackburn. The
Young court sought to protect plaintiffs who had prevailed
in the dis-
trict court from bearing the costs of opposing unsuccessful
appeals by
union leadership advanced for the purpose of diminishing the
finan-
cial resources of union members. See Young, 775 F.2d at
873. In con-
trast, under the ERA, employers who appeal unfavorable rulings
of
the Secretary are opposed at the appellate level by the
Secretary.
Thus, successful plaintiffs under the ERA do not face the same
bur-
den of defending awards on appeal that plaintiffs under the
LMRDA
face. Consequently, there is no corresponding danger under the
ERA
that employers will pursue appeals solely in an attempt to
outlast the
financial resources of employees.
In contrast to the assertions of the majority regarding
congressional
intent, I believe that "it frustrates rather than effectuates
legislative
intent simplistically to assume that whatever furthers
the statute's pri-
mary objective must be the law." Rodriguez v. United
States, 480 U.S.
522, 526 (1987). As the Deford majority noted, "[i]t is as
likely as
not
. . . that this situation represents a countervailing or co-
existing
policy
that one who obtains relief before the Secretary and yet chooses
to
seek more will be required at the least to bear his attorneys'
fees."
Deford, 715 F.2d at 233.
Additionally, the twelve years of congressional inaction
following
the DeFord decision evidence that Congress did not intend
for the
Secretary to have the authority under the ERA to award to
plaintiffs
attorneys' fees incurred in a successful appeal. Although
approval
may not always be inferred from congressional silence, "once
an
agency's statutory construction has been `fully brought to the
atten-
tion of the public and the Congress,' and the latter has not
sought to
alter that interpretation although it has amended the statute in
other
respects, then presumably the legislative intent has been
correctly dis-
cerned." United States v. Rutherford, 442 U.S. 544, 554
n.10 (1979)
(quoting Apex Hosiery Co. v. Leader, 310 U.S. 469, 487-
89
(1940)).
Here, Congress extensively amended the statute in 1992 with
knowl-
edge of the construction the Sixth Circuit had placed upon the
provi-
sion regarding the recovery of attorneys' fees for an appeal.
See
United States v. Langley, 62 F.3d 602, 605 (4th Cir. 1995)
(en banc)
(stating that Congress is presumed to act with knowledge of the
judi-
19
ciary's interpretation of an existing statute), cert.
denied, 116 S.
Ct.
797 (1996). Thus, Congress's failure to correct the Secretary's
inter-
pretation when it amended the statute supports the
construction
advanced by the Secretary and demonstrates that Congress did
not
intend to authorize the Secretary to award attorneys' fees
incurred in
a successful appeal under the ERA.
III.
Although the majority offers countervailing arguments to the Sec-
retary's arguments, the Supreme Court has counseled that the "ac-
commodation of conflicting policies that were committed to the
agency's care . . . is not a task we ought to undertake on the
agency's
behalf in reviewing its orders." Department of Treasury,
494 U.S. at
933 (internal quotation marks and citations omitted). Thus,
under
Chevron, the court should defer to the permissible
construction of the
statute urged by the Secretary and affirm his decision and order.
See
Good Samaritan Hosp., 113 S. Ct. at 2161 ("[W]here the
agency's
interpretation of a statute is at least as plausible as competing
ones,
there is little, if any, reason not to defer to its
construction."). In
departing from the analysis mandated by Chevron and
imposing its
own statutory interpretation, the majority creates a conflict
among the
circuits and fails to accord the deference due to the Secretary's
con-
struction under controlling precedent. Accordingly, I dissent.
20
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