79 F.

3d 1375
Nuclear Reg. Rep. P 20,576, 11 IER Cases 914

Paul A. BLACKBURN, Petitioner,

v.
Robert B. REICH, Secretary of Labor; Metric Constructors,
Incorporated, Respondents.
No. 95-1166.

United States Court of Appeals,

Fourth Circuit.
Argued Oct. 31, 1995.
Decided March 26, 1996.

On Petition for Review of an Order of the United States Department of

Labor. (86-ERA-4)
ARGUED: William Reynolds Williams, Willcox, McLeod, Buyck &
Williams, P.A., Florence, South Carolina, for Petitioner. Paul Frieden,
United States Department Of Labor, Washington, D.C., for Respondents.
ON BRIEF: Thomas S. Williamson, Jr., Solicitor of Labor, Gail V.
Coleman, Deputy Associate Solicitor, William J. Stone, Counsel for
Appellate Litigation, United States Department Of Labor, Washington,
D.C., for Respondent Secretary.
Before HALL and WILLIAMS, Circuit Judges, and BUTZNER, Senior
Circuit Judge.
Vacated and remanded by published opinion. Judge K.K. HALL wrote the
majority opinion, in which Senior Judge BUTZNER joined. Judge
WILLIAMS wrote a dissenting opinion.
OPINION
K.K. 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.
2

* Metric Constructors, Inc., was an independent contractor that performed

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 shielding was put in place at the worksite. He
filed a complaint against Metric 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
reinstate Blackburn, the Secretary remanded the case to an administrative law
judge (ALJ) for a determination of back pay, compensatory damages, 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 recommendations. 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 termination, 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 damages despite the absence of adverse
financial consequences. Accordingly, 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 petition for costs
and attorney's fees covering the period from November 15, 1991, through
August 27, 1993. On December 27, 1994, the Secretary 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
6

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 violation of the ERA, the Secretary

7
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.
8

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 attorney's fees, for proceedings on
appeal to the court of appeals." As a matter of statutory interpretation, our
review is de novo.3

* 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 prevailing 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 Secretary's cost-awarding authority (which includes his fee-awarding
authority) is limited to the administrative sphere "as a jurisdictional or quasijurisdictional 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.

10

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 associated with an appeal, such as the fee
for preparing the record, are taxable 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
11

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 with the order appealed from, and, in that sense,
every appeal involves a dispute with the decisionmaker. But it was Metric's
successful 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
12

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 compensatory 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 separate
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

13

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 precluded 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
14

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 870 (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:

15

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 members' ability to afford challenging the union leadership. Situations
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 frustrated.

16

Id. at 873. The same rationale should apply with equal or greater vigor in the
realm of nuclear safety.7

D
17

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 single action. Quite the opposite appears to be the
general rule; if fees are authorized at all, they are recoverable for all phases of
the litigation, 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 assessment of additional attorneys' fees ...
to compensate the plaintiffs for the expense of their successful defense of

[defendant's] appeal").
18

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, --- U.S. ----, 114 S.Ct. 1960,
128 L.Ed.2d 797 (1994), the issue was whether attorney's fees could be
awarded at all for a distinct type of action.8 Neither 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.

III
19

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 Secretary's final decision and remand with
instructions to reconsider Blackburn's third fee petition in light of the foregoing
opinion.

20

VACATED AND REMANDED.

WILLIAMS, Circuit Judge, dissenting:

21

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 reaching 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, 104 S.Ct. 2778, 2781-82, 81 L.Ed.2d 694 (1984).
Under Chevron, I conclude that the Secretary's interpretation is a permissible
construction of a statutory provision whose meaning is clarified by neither the
statutory language nor the legislative history. Additionally, disregarding the
majority's incorrect standard of review, I believe that the majority's conclusion
is supported by flawed reasoning.

I.
22

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 1377 ("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 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 first determine if Congress has "provide[d]
guidance to the court for resolution of the issue" through the statutory language
or the appropriate legislative history. Akindemowo v. INS, 61 F.3d 282, 284
(4th Cir.1995). If so, our inquiry is complete and we proceed no further.
Chevron, 467 U.S. at 842-43, 104 S.Ct. at 2781-82. If, however, we are unable
to discern "the unambiguously expressed intent of Congress," id. at 843, 104
S.Ct. at 2781, then Chevron "directs us not to impose automatically our own
interpretation of the statute, but rather to apply the interpretation of the
administrative agency charged with implementing the statute, provided the
agency's interpretation 'is based on a permissible construction of the statute.' "
Akindemowo, 61 F.3d at 284 (quoting Chevron, 467 U.S. at 843, 104 S.Ct. at
2782). 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 Secretary's interpretation of 5851(b)(2)(B)
is permissible.
A.
23

Under the first prong of Chevron, I conclude that neither the statutory language
nor the legislative history provides adequate guidance to determine the intent of
Congress with respect to whether the Secretary 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) reasonably incurred ... for, or in connection with, the bringing of the
complaint." 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. 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.").

24

Because the meaning of the phrase "in connection with" is not clear from the

24

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 guidance. 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 "authoritative source for finding the Legislature's
intent." Garcia v. United States, 469 U.S. 70, 76, 105 S.Ct. 479, 483, 83
L.Ed.2d 472 (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, 104 S.Ct. at
2782.

B.
25

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 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 administrative
interpretation." Chevron, 467 U.S. at 843, 104 S.Ct. at 2782 (footnote omitted);
accord Akindemowo, 61 F.3d at 284. Rather, we must apply the agency'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, 110 S.Ct. 1623, 1629, 108 L.Ed.2d 914 (1990).

26

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, 104 S.Ct. at 2782 n. 11. Instead, we should
"accord considerable deference to the agency's interpretation of the statute, and
'we should not disturb [that interpretation] 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, 104 S.Ct. at 2783); see also Good Samaritan Hosp. v. Shalala, 508 U.S.
402, 413-14, 113 S.Ct. 2151, 2159, 124 L.Ed.2d 368 (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 statutes 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, 104 S.Ct. at 2793.
27

Under the second prong of the Chevron analysis, I conclude that the
interpretation advanced by the Secretary is a permissible construction 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 unfavorable ruling by the Secretary is an action separate from
the initial complaint lodged against the employer.

28

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 contrary. See Key Tronic Corp. v.
United States, --- U.S. ----, ----, 114 S.Ct. 1960, 1965, 128 L.Ed.2d 797 (1994);
Alyeska Pipeline Serv. Co. v. The Wilderness Soc'y, 421 U.S. 240, 249-50, 95
S.Ct. 1612, 1618, 44 L.Ed.2d 141 (1975). The Alyeska court recognized only
two exceptions 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 plaintiff under the
"common fund doctrine." See Kollsman, a Div. of Sequa Corp. v. Cohen, 996
F.2d 702, 707 n. 4 (4th Cir.1993).

29

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 successful appeals by
plaintiffs under the ERA; thus, I cannot find the "explicit congressional
authorization" required for the award of attorneys' fees under the American
Rule. See Key Tronic Corp., --- U.S. at ----, 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.

30

The structure of the statute also demonstrates that the Secretary's interpretation
is not unreasonable. Although Congress explicitly provided 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), Congress 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 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, 104 S.Ct. 296, 300, 78 L.Ed.2d 17
(1983) (quoting United States v. Wong Kim Bo, 472 F.2d 720, 722 (5th
Cir.1972)); see also, e.g., Key Tronic, --- U.S. at ----, 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)).
31

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 Secretary is an action separate from the complaint
itself. As the DeFord court noted,

32 award of costs (including attorneys' fees) allowable under section 5851 is

the
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 dissatisfaction with his order.
33

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 defending his award on appeal. See
majority op. at 1378 n. 4. This is inaccurate; 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)
(dismissing 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.
34

For these reasons, I find the interpretation advanced by the Secretary 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 Blackburn's fees were not incurred "in connection
with" the bringing of his complaint under the ERA.

II.
35

In addition to believing that the majority incorrectly employed a plenary

standard of review, I find the majority's conclusion that attorneys' 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
Secretary because such awards would advance the "overarching purpose" of the
statute, see majority op. at 1378-79; the majority holds this belief despite the
absence of any direct or indirect evidence of Congress's intent.

36

In discussing the intent of Congress,4 the majority is unable to direct our

attention to salient portions of the official Committee Reports evidencing an
intent to authorize the Secretary to award attorneys' fees incurred by plaintiffs
under the ERA in the successful prosecution of appeals. See Garcia, 469 U.S. at
76, 105 S.Ct. at 483. 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 statute. See majority op. at 1378-79.

37

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 petition 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 awarding 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 unsuccessful, 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.
38

Young is distinguishable from this case and thus provides no support for the
proposition that under the ERA attorneys' fees incurred in a successful appeal
are recoverable by the plaintiff. Most importantly, 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.

39

Furthermore, ignoring the different standard of review, the rationale employed

by the Young court does not apply to Blackburn. The Young court sought to
protect plaintiffs who had prevailed in the district court from bearing the costs
of opposing unsuccessful appeals by union leadership advanced for the purpose
of diminishing the financial resources of union members. See Young, 775 F.2d
at 873. In contrast, 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 burden 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.

40

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 primary objective must be the
law." Rodriguez v. United States, 480 U.S. 522, 526, 107 S.Ct. 1391, 1393, 94
L.Ed.2d 533 (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.

41

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 attention 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 discerned."
United States v. Rutherford, 442 U.S. 544, 554 n. 10, 99 S.Ct. 2470, 2476 n. 10,
61 L.Ed.2d 68 (1979) (quoting Apex Hosiery Co. v. Leader, 310 U.S. 469, 48789, 60 S.Ct. 982, 988-89, 84 L.Ed. 1311 (1940)). Here, Congress extensively
amended the statute in 1992 with knowledge of the construction the Sixth
Circuit had placed upon the provision 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
judiciary's interpretation of an existing statute), cert. denied, --- U.S. ----, 116
S.Ct. 797, 133 L.Ed.2d 745 (1996). Thus, Congress's failure to correct the
Secretary's interpretation 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.
42

Although the majority offers countervailing arguments to the Secretary's

arguments, the Supreme Court has counseled that the "accommodation 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, 110 S.Ct. at 1629 (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., 508 U.S. at 417-18, 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 construction
under controlling precedent. Accordingly, I dissent.

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 version here

Blackburn did not seek review of the Secretary's decision with regard to
attorney's fees and costs

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, 104 S.Ct. 2778, 81
L.Ed.2d 694 (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, contrary 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).

In Blackburn I, neither party filed a bill of costs with the clerk of the court of
appeals

As far as attorney's fees are concerned, the situation would be precisely 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 reasoning, he would have been unable to
recoup attorney's fees expended to uphold the award

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)

Blackburn's lawyers claimed some $10,000 in fees for the appeal in Blackburn
I. The prospect of an unrecoverable expenditure of this magnitude, 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

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 33
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

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 1377 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
1377 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 majority 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 1377 n. 3 (emphasis added). By using such ambivalent terms,
the majority implicitly concedes 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, majority op. at 1377 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, 104 S.Ct. 1446, 79 L.Ed.2d 765 (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 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 elementary 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 circuits 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
substituting their own judgment. See, e.g., Train v. Natural Resources Defense
Council, 421 U.S. 60, 87, 95 S.Ct. 1470, 1485, 43 L.Ed.2d 731 (1975); Udall v.
Tallman, 380 U.S. 1, 16-18, 85 S.Ct. 792, 801-02, 13 L.Ed.2d 616 (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 Secretary'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 Circuit, but also implicitly
acknowledged his authority to reject that interpretation. 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 Blackburn "urges the Secretary not to follow DeFord."
(J.A. at 39.) The Secretary then holds that he is denying the petition "[b]ased
on DeFord," (J.A. at 40,) and "reject[ 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.)
I cannot divine from the order that the Secretary believed he was compelled 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.
2

Although the majority bases its decision on its belief that the award of
attorneys' fees incurred in successful appeals under the ERA is consonant with
the intent of Congress, see majority op. at 1378-79; see also discussion infra
part II, I submit that the majority's analogy to Local 17, International
Association of Heat & Frost Insulators & Asbestos Workers v. Young, 775 F.2d
870 (7th Cir.1985), is insufficient to prove congressional 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, 104 S.Ct. at 2781. 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, 104 S.Ct. 296, 301, 78 L.Ed.2d 17 (1983)
("Language in one statute usually sheds little light upon the meaning of
different language in another statute ...."); see also United States v. Mitchell, 39
F.3d 465, 470 n. 7 (4th Cir.1994) (same)

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."

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 statutory language to be
ambiguous, we must assume that it did because otherwise 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 alternative meanings.")