Biddle Sawyer Corporation

Read the official release (epa.gov)

Plain-English summary

Biddle Sawyer Corporation prevailed in an EPA enforcement action involving alleged Toxic Substances Control Act violations and then sought attorney fees and expenses under the Equal Access to Justice Act. The Environmental Appeals Board held that the Agency had jurisdiction to award fees, that Biddle Sawyer met the eligibility requirements, and that the Region's enforcement position was not substantially justified. The Board reduced the prior award to $26,978.19 because some requested copying, paralegal, and meal expenses were not adequately supported or reasonable. It also allowed Biddle Sawyer to file a supplemental request for fees and expenses incurred in the appeal.

Decision snapshot

• Cited authorities: 5 U.S.C. § 504; 15 U.S.C. §§ 2603, 2614, and 2615; 40 C.F.R. parts 17 and 22
• Outcome: The EAJA award was affirmed in principle and modified to $26,978.19.
• Key point: A timely EAJA application established eligibility despite initial signature and verification defects, but unsupported expense requests could be reduced.

Full text (EPA EAB public release)

912 ENVIRONMENTAL ADMINISTRATIVE DECISIONS
IN THE MATTER OF BIDDLE SAWYER CORPORATION
TSCA Appeal No. 91-5
FINAL DECISION
Decided November 17, 1993
Syllabus

Region II of the U.S. Environmental Protection Agency (“the Agency”) appeals
from an award of attorneys’ fees and expenses to Biddle Sawyer Corporation made
pursuant to the Equal Access to Justice Act (“EAJA”), 5 U.S.C. § 504. Biddle Sawyer
was awarded fees and expenses after prevailing in an enforcement action based on
alleged violations of Sections 4 and 15 of the Toxic Substances Control Act (“TSCA”),
15 U.S.C. §§2603 and 2614, for failure to comply with the requirements of 40 C.F.R.
§ 766.35(a)(1)(i). Initially, the Region asserts that the Agency lacks jurisdiction to
award attorneys’ fees and expenses to Biddle Sawyer. To the extent that the Agency
has jurisdiction, the Region asserts that the award of fees and expenses should be
denied because the position of the Region was substantially justified or, alternatively,
because special circumstances exist that make the award unjust. Finally, to the extent
an award is appropriate, the Region asserts that the award of certain fees and ex-
penses is unreasonable.

Held: The Agency has jurisdiction to award attorneys’ fees and expenses under
the EAJA to Biddle Sawyer because Biddle Sawyer submitted a timely filed application
in which it provided the requisite information to show that it was eligible for an
award under the EAJA. Biddle Sawyer’s failure to comply in its original application
with the signature and verification requirements of 40 C.F.R. § 17.11(f) was not a
jurisdictional defect. Further, the ALJ did not abuse his discretion in allowing Biddle
Sawyer to file an amended application which complied with the signature and verifica-
tion requirements of § 17.11(f) after the statutory deadline for filing an application.
Finally, based on the filings made by Biddle Sawyer, the ALJ did not err by concluding
that Biddle Sawyer was eligible for an award.

Under the circumstances of this case, an award of fees and expenses is appro-
priate because the Region's position in the underlying enforcement action was not
substantially justified. Furthermore, there are no special circumstances in this case
which render an award of fees and expenses unjust. Finally, with respect to the
award itself, certain fees and expenses requested by Biddle Sawyer are unreasonable.
The amount of the award is modified accordingly, and Biddle Sawyer is granted
leave to file a supplemental request to cover fees and expenses associated with this
appeal.

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BIDDLE SAWYER CORPORATION 913

Before Environmental Appeals Judges Nancy B. Firestone,
Ronald L. McCallum, and Edward E. Reich.

Opinion of the Board by Judge Reich, in which Judge Fire-
stone joined. Judge McCallum filed a dissenting opinion, post
p.44&:

Region II of the United States Environmental Protection Agency !
appeals from the decision of Chief Administrative Law Judge Henry
B. Frazier III (“ALJ”), on August 21, 1991, awarding attorneys’ fees
and expenses to Biddle Sawyer Corporation pursuant to the Equal
Access to Justice Act (“EAJA”), 5 U.S.C. § 504. The amount of the
award is $30,627.71. The Environmental Appeals Board has jurisdic-
tion under 40 C.F.R. §§ 17.8, 17.27 and 22.30.2 See 57 Fed. Reg.
5820 et seq. (February 13, 1992). For the reasons stated below, we
affirm the ALJ’s decision to grant the award but modify the amount
awarded.

I. BACKGROUND

The EAJA, upon which the award to Biddle Sawyer is based,
provides that an agency must award reasonable fees and expenses
to an eligible prevailing party in an adversary adjudication conducted
by the agency unless the position of the agency was substantially
justified or special circumstances make an award unjust.? 5 U.S.C.

1Throughout this Decision, Region II is referred to as “the Region” while the
United States Environmental Protection Agency is referred to as “EPA or the Agency.”

2.An appeal from the ALJ’s decision to award attorney's fees and expenses pursu-
ant to the EAJA is governed by the procedures set forth in 40 C.F.R. Part 22. See
40 C.F.R. § 17.27 (review of the Presiding Officer's decision regarding an EAJA award
occurs “in accordance with Agency procedures for the type of substantive proceeding
involved”); 40 C.F.R. § 22.01(5) (Part 22 governs adjudicatory proceedings for TSCA).
Part 22 provides that a party may appeal an adverse ruling or order to the Board
by properly filing the appeal within 20 days after the “initial decision” is served
upon the parties. 40 C.F.R. § 22.30. Here, the ALJ issued a “recommended decision”
as required by 40 C.F.R. § 17.26. A “recommended decision” on attorney's fees is
treated as an “initial decision” for purposes of appeals from EAJA decisions under
40 C.F.R. Part 22. In re Reabe Spraying Service, Inc., FIFRA Appeal No. 83-4, at
3 n.3 (CJO, May 28, 1985); see In re Robert Ross & Sons, Inc., TSCA Appeal No.
82-4, at 4, n.7 (CJO, Jan. 28, 1985).

3'The primary purpose of the EAJA is to ensure that certain individuals and
organizations will not be deterred from seeking review of, or defending against, unjusti-
fied governmental action because of the expense involved in securing the vindication
of their rights. H.R. Rep. No. 99-120, Part I, 99th Cong., 1st Sess. 4 (1985), reprinted
in 1985 U.S.C.C.A.N. 132, 132-133 (“1985 House Report”). The EAJA serves to encour-
age private parties to vindicate their rights and to curb excessive regulation and
the unreasonable exercise of government authority. See Commissioner, Immigration

‘Continued
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914 ENVIRONMENTAL ADMINISTRATIVE DECISIONS
§ 504(a)(1). Biddle Sawyer is the prevailing party in an administrative
enforcement action brought by Region II pursuant to Section 16 of
the Toxic Substances Control Act (“TSCA”), 15 U.S.C. §2615.4 The
ALJ dismissed that action in an Accelerated Decision on the grounds
that Biddle Sawyer was entitled to judgment as a matter of law.5
Upon considering Biddle Sawyer’s request for attorneys’ fees and
expenses and the Region’s opposition to such request, the ALJ con-
cluded that an award of fees and expenses was appropriate in that
Biddle Sawyer had met the EAJA’s eligibility prerequisites and the
Region had not shown that its position in the underlying proceeding
was “substantially justified” or that “special circumstances” would
make the award unjust.
A. The Underlying Enforcement Action
The adversary adjudication giving rise to Biddle Sawyer’s EAJA
claim may be summarized as follows. In a Complaint dated Septem-
ber 27, 1988, the Region charged Biddle Sawyer with a single viola-
tion of 40 C.F.R. § 766.35(a)(1). Subparagraph (i) of 40 C.F.R.
§ 766.35(a)(1) provides that:
Persons who have manufactured or imported chemi-
cal substances listed under § 766.25 between January
1, 1984, and the effective date of this part [July
6, 1987] are required to submit under §790.45 of
this chapter a letter of intent to test or an exemption
application. These letters must be submitted no later
than September 3, 1987.
Although Biddle Sawyer had stopped importing any substances listed
under § 766.25 prior to Part 766’s effective date, Biddle Sawyer had
imported such substances during the period identified in
§ 766.35(a)(1) and still retained a portion of such substances in its
inventory, after the rule’s effective date. Region II charged that Bid-
dle Sawyer had violated § 766.35(a)(1) when it failed to file a letter
of intent to test or an exemption application on September 3, 1987.
Region II sought a $5,000 penalty. In an Answer dated January
30, 1989, Biddle Sawyer alleged, as an affirmative defense, that it
and Naturalization Service v. Jean, 496 U.S. 154, 110 S. Ct. 2316, 2322, 110 L.
Ed. 2d 134 (1990).
4Section 16(a) of TSCA authorizes EPA to impose a civil penalty not to exceed
$25,000 for each violation of a provision of Section 15 of TSCA, 15 U.S.C. §2614.
5 Accelerated Decision, at 29-30; see 40 C.F.R. § 22.20.
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BIDDLE SAWYER CORPORATION 915
was not liable because it had not imported or manufactured the
listed chemical substance on or after the effective date of Part 766.

On January 31, 1990, following the breakdown of settlement
negotiations, Biddle Sawyer moved for an accelerated decision. In
this motion, Biddle Sawyer argued that it was not required to comply
with § 766.35(a)(1)(i) because it had ceased to import the chemical
substance at issue several months prior to the effective date of Part

766. Biddle Sawyer asserted that the Part 766 regulations do not
     apply to persons that had ceased importing the listed chemical sub-
     stances prior to the rule’s effective date. Because Biddle Sawyer had
     indisputably stopped importing such substances prior to the effective
     date of Part 766, Biddle Sawyer argued, § 766.35(a)(1)(i) does not
     apply. In support of this contention, Biddle Sawyer identified § 766.2
     of the rule. Section 766.2 provides in relevant part:

§ 766.2 Applicability and duration of this part.

(a) * * * (1) This part is applicable to each person

who, at any time during the duration of this part,

manufactures (and/or imports), or processes, a chem-

ical substance identified under § 766.25.

(2) The duration of this part for any testing require-

ment for any chemical substance is the period com-

mencing with the effective date of this part to the

end of the reimbursement period, as defined in

§ 766.3, for each chemical substance. * * *
(Emphasis added.) Biddle Sawyer argued that Part 766 by its terms
applies only to persons who are importing substances identified under
§ 766.25 on or after the rule’s effective date. Biddle Sawyer argued,
in the alternative, that to the extent § 766.35(a)(1) could be construed
to apply to persons who were not importers on the rule’s effective
date, the rule is impermissibly retroactive under the standards articu-
lated by the Supreme Court in Bowen v. Georgetown University Hos-
pital, 488 U.S. 204, 109 S. Ct. 468, 102 L. Ed. 2d 493 (1988). Bowen
provides, essentially, that absent express congressional authorization,
an agency may not promulgate rules which affect past conduct.® Bid-

More particularly, the Court stated that:

[A] statutory grant of legislative rulemaking authority will not,
as a general matter, be understood to encompass the power to
promulgate retroactive rules unless the power is conveyed by Con-
gress in express terms. [citation omitted] Even where some sub-
Continued
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916 ENVIRONMENTAL ADMINISTRATIVE DECISIONS
dle Sawyer argued that the testing provision at Section 4 of TSCA
does not authorize retroactive regulations.

In its response to Biddle Sawyer’s motion and in a cross-motion
for an accelerated decision, the Region argued that Biddle Sawyer
is liable under § 766.35(a)(1) and that the rule is not impermissibly
retroactive. The Region stated, in response to Biddle Sawyer’s argu-
ment that § 766.2 defines the rule’s applicability, that § 766.35(a)(1)(i)
identifies the person who is required to report while § 766.2(a)(2)
simply defines “the duration of the Part.”? In response to Biddle
Sawyer’s retroactivity argument, the Region asserted that
§ 766.35(a)(1) implements Section 8 of TSCA rather than Section 4,
and that Section 8 allows EPA to require reporting on chemicals
that were imported or manufactured in the past.®

On September 27, 1990, the ALJ dismissed the Complaint
against Biddle Sawyer in an Accelerated Decision. The ALJ concluded
that Part 766 did not apply to Biddle Sawyer because it had ceased
to import the listed chemical substances before the effective date
of Part 766. Accelerated Decision, at 17. The ALJ reasoned that
under § 766.2(a), Biddle Sawyer was not a person subject to the
requirements in § 766.35(a)(1)(i). Id. at 18. In the alternative, the
ALJ concluded that even if Biddle Sawyer were arguably subject
to § 766.35(a)(1)(i), applying that regulation in the circumstances of
this case would be impermissible under the test articulated by the
Supreme Court in Bowen v. Georgetown University Hospital. See id.
at 23-28.
substantial justification for retroactive rulemaking is presented,
courts should be reluctant to find such authority absent an express
statutory grant.
Bowen v. Georgetown University Hospital, 109 S. Ct. at 471.
7Region’s Response to Biddle Sawyer’s Motion for an Accelerated Decision, at
16; Region's Motion for an Accelerated Decision, at 7-8.

®K We note that this appears to be a change in the position taken by the Region
up to this point. The Region did not assert in the Complaint or in the Prehearing
Exchange that the failure to comply with § 766.35(a)(1) was a violation of Section
8 of TSCA. Rather, in the Complaint and Prehearing Exchange, the Region took
the position that Biddle Sawyer’s failure to comply with 40 C.F.R. § 766.35(a)(1) was

a violation of Section 4 of TSCA. Complaint, at 2 18; Prehearing Exchange, at 1
&3.
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BIDDLE SAWYER CORPORATION 917
B. The EAJA proceeding before the ALJ

The ALJ’s decision to dismiss the Complaint was not appealed
and became final on November 16, 1990.9 Four days later, on Novem-
ber 20, 1990, Biddle Sawyer filed an Application for Attorneys’ Fees
and Costs (hereafter “Original Application”), under the EAJA. The
EAJA provides, at 5 U.S.C. § 504(a)(2), in pertinent part that:

A party seeking an award of fees and other expenses

shall, within thirty days of a final disposition in the

adversary adjudication, submit to the agency an ap-

plication which shows that the party is a prevailing

party and is eligible to receive an award under this

section, and the amount sought, including an item-

ized statement from any attorney, agent, or expert

witness representing or appearing in behalf of the

party stating the actual time expended and the rate

at which fees and other expenses were computed.

The party shall also allege that the position of the

agency was not substantially justified.
(Emphasis added). The EAJA further provides, at 5 U.S.C.
§ 504(b)(1)(B), that a “party” which is a corporation is eligible to
receive an award if, at the time the adversary adjudication was
initiated, it had a net worth not exceeding $7,000,000 and not more
than 500 employees.

In its Original Application, Biddle Sawyer asserted that it was
the “prevailing party” and that it met “the eligibility criteria for
an award.” !° More specifically, the Original Application stated that
on September 28, 1988,1! Biddle Sawyer “had a net worth of less
than $7 million and employed fewer than 100 employees.” !? In ac-
cordance with EPA’s requirements, the Original Application contained
a “net worth exhibit” which included an audited financial statement

°The ALJ’s Accelerated Decision was issued on September 27, 1990. Neither of
the parties appealed the decision and the Administrator elected not to review the
decision sua sponte. Under 40 C.F.R. § 22.27, a decision becomes final 45 days after
service on the parties. Because service was made by mail, five additional days must
be added in accordance with § 22.07(c). Consequently, the Accelerated Decision became
final on November 16, 1990.

10 Original Application, at 1.

11Both the Region and Biddle Sawyer have assumed that the underlying proceed-
ing was initiated on September 28, 1988, the date the Complaint was mailed. Since
service of a complaint is complete when the return receipt is signed, it could be
argued that that is the proper date to use. In this case, the difference is immaterial.

12 Original Application, at 3.

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918 ENVIRONMENTAL ADMINISTRATIVE DECISIONS

by Touche Ross reflecting that Biddle Sawyer’s “Stockholders’ Equity”
was $4,612,158 on December 31, 1988, and $8,667,482 on December
31, 1987.13 The “net worth exhibit” also included an unsigned state-
ment that “[bletween September 28, 1988 and December 31, 1988
there were no transfers of assets by Biddle Sawyer and Biddle Sawyer
incurred no new obligations.” 14 The Original Application stated that
Biddle Sawyer sought $30,652.71 in fees and expenses.’® In support
of its fees and expenses, the Original Application contained an affida-
vit signed by Christopher H. Marraro, Biddle Sawyer’s counsel, which
set forth the time expended by each attorney who had billed time
to defending the underlying enforcement action and the rate at which
the fees had been computed.16 Finally, the Original Application was
signed by Christopher H. Marraro.

On December 21, 1990, the Region filed an answer to the Origi-
nal Application asserting that, although the Original Application was
timely filed, it was jurisdictionally defective because: (1) it did not
state the exact number of the employees and describe the type and
purpose of the applicant’s business as required by 40 C.F.R.
§ 17.11(c);17 (2) it did not include “documentation specifically verify-
ing the applicant’s net worth on September 28, 1988, the time the
proceeding was initiated” as required under 40 C.F.R. § 17.12(a); 18
and (3) it did not contain the applicant’s signature or verification
under oath or affirmation as to its eligibility and net worth as re-
quired by 40 C.F.R. § 17.11().2

13 Id. at Exh. A.

141d.

18 Id. at 7.

46 ]d. at Exh. B. Attached to the affidavit are the billing records from two law
firms which describe services and expenses charged to Biddle Sawyer.

1740 C.F.R. § 17.11(c) provides:

If the applicant is a * * * corporation, * * * the application
shall state that the applicant did not have more than 500 employ-
ees at the time the proceeding was initiated, giving the number
of its employees and describing briefly the type and purpose of
its * * * business.

1840 C.F.R. § 17.12(a) provides:

Each applicant * * * must submit with its application a detailed
exhibit showing its net worth at the time the proceeding was
initiated * * . The exhibit may be in any form * * . The Presiding
Officer may require an applicant to file additional information
to determine the applicant's eligibility * * *.

1940 C.F.R. § 17.11(f) provides:

‘The application shall be signed by the applicant with respect

to eligibility * * * and by the attorney of the applicant with

respect to fees and expenses sought. The application shall contain
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BIDDLE SAWYER CORPORATION 919
The Region further argued that, in addition to the Original Appli-
cation’s jurisdictional defects, an award was not appropriate because
the Region’s position in the underlying proceeding was substantially
justified. The Region argued that “the regulation one [sic] its face
provided one reading of the rule while a review of the rule within
the over-all statutory frame work would render a different reading.” 2°
It also argued that special circumstances exist which would make
an award of fees and expenses unjust because Biddle Sawyer main-
tained control over the chemical substance subsequent to the effective
date of Part 766.2! Although the Region had not presented this latter
argument in the underlying enforcement action, in response to Biddle
Sawyer’s EAJA claim it subsequently suggested that:
[The ALJ] could have determined that “importation”
does not cease with the specific act of entering the
territorial United States; but could have interpreted
“importation” under 40 C.F.R. Part 766 to mean en-
tering the territory of the United States and posses-
sion of the imported chemical substance until it had
been sold or that the importer no longer maintained
control/possession.22
Finally, the Region argued that certain fees were “excessive, redun-
dant or otherwise unnecessary” and certain expenses were unreason-
able.23
On January 10, 1991, Biddle Sawyer filed a Motion for Leave
to File the Amended Application, in an apparent effort to address
the Region’s jurisdictional arguments. The Amended Application was
identical to the Original Application except it stated that on Septem-
ber 28, 1988, it had employed “64,” rather than “less than 100 em-
ployees.”24 Furthermore, it was signed and verified, under penalty
of perjury, by Wallace Chavkin, the Chairman and Chief Operating
Officer of Biddle Sawyer Corporation.?5

• • • @ written verification under oath or affirmation * * * that
      the information provided * * * is true and complete * * *.
      20Region’s Answer to Biddle Sawyer’s Application for Attorneys’ Fees and Costs,
      at 11.
      21Jd, at 12-13.
      221d. at 13.
      237d. at 14-20.
      24 Amended Application, at 3.
      251d. at 8.
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920 ENVIRONMENTAL ADMINISTRATIVE DECISIONS

The Region opposed the Motion for Leave to File an Amended
Application on the grounds that it was jurisdictionally barred. More
specifically, the Region argued that Biddle Sawyer, having failed to
file a proper and complete application within the statutory filing
deadline, could not now cure the Original Application’s jurisdictional
defects with an Amended Application.?6

On August 21, 1991, the ALJ granted Biddle Sawyer’s motion
to file the Amended Application and issued his Recommended Deci-
sion awarding Biddle Sawyer $30,627.71. The Recommended Decision
awarded Biddle Sawyer all of its requested attorneys’ fees (at the
statutory maximum fee rate of $75) and all of its expenses with
the exception of those associated with one meal.

The ALJ rejected virtually all of the Region’s objections to Biddle
Sawyer’s EAJA claim. The ALJ concluded that the applicant’s signa-
ture was not a jurisdictional requirement.27 He also concluded that
because Biddle Sawyer “filed the original application in a timely
manner and has met all of the jurisdictional requirements, [he would]
consider [Biddle Sawyer’s] supplement to the original submission.” 28

Having concluded that Biddle Sawyer satisfied the EAJA’s eligi-
bility criteria, the ALJ went on to examine whether an award was
precluded because the Region’s position was substantially justified
or because special circumstances would make an award unjust. The
ALJ rejected the Region’s position that it was substantially justified
in bringing the action, because “[t]here was no reasonable basis in
law and fact for EPA’s position that Biddle Sawyer had violated
TSCA and the implementing regulations thereunder.” ?° The ALJ also
rejected the Region’s “special circumstances” argument. The ALJ held

26 See Region’s Reply to Applicant’s Motion for Leave to File Amended Application
for Attorney's Fees and Costs.

27 Recommended Decision, at 4. The ALJ also concluded that “[e]lven if the signa-
ture requirement were jurisdictional, some courts have allowed supplementation of
an application to meet eligibility requirements,” citing to Dunn v. United States,
715 F.2d 99, 104 (3d Cir. 1985). Id. at 5.

281d. at 5.

291d. at 7. He further noted that:

EPA * * * sought to impose retroactively the regulatory require-
ment on Biddle Sawyer, who did not import or manufacture
chloranil subsequent to July 6, 1987, the effective date of Part

766. Under those circumstances, I concluded that to attempt to
     hold Biddle Sawyer liable would be not only unreasonable and
     ‘unjust, but also an impermissible retroactive application of the
     regulation.

Id.

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BIDDLE SAWYER CORPORATION 921
that the Region’s contention that Biddle Sawyer could still be consid-
ered an “importer” because it retained control over the chemical sub-
stance past the effective date of Part 766 did not amount to “special
circumstances” that would preclude an award of fees and expenses.
Id. at 8. The ALJ concluded that the Region’s argument did not
have any support in case law or legislative history and thus it was
“weak at best.” Id.

The Region appeals from the ALJ’s award of $30,627.71 in fees
and expenses. In brief, the Region asserts on appeal that Biddle
Sawyer did not file a proper application and the Agency, therefore,
does not have jurisdiction to award attorneys’ fees and expenses
to Biddle Sawyer. To the extent EPA has jurisdiction, the Region
asserts that the award of fees and expenses should be denied because
the Region’s position was substantially justified or, alternatively, be-
cause special circumstances exist which make the award unjust. Fi-
nally, to the extent an award is determined to be appropriate, the
Region challenges the reasonableness of certain fees and expenses
in the award.

II. DISCUSSION
A. Biddle Sawyer’s Original Application For Costs And Fees Was
Sufficient To Satisfy EAJA’s Jurisdictional Prerequisites

Initially, we must determine whether the ALJ, acting on behalf
of the Agency, had jurisdiction under the EAJA to make an award
of attorneys’ fees and expenses to Biddle Sawyer. The Region argues
that the ALJ lacked jurisdiction to make an award because Biddle
Sawyer failed to provide sufficient evidence to “show” that it was
eligible for an award as required by the EAJA at 5 U.S.C. § 504(a)(2)
in either its Original Application or in its Amended Application. The
Region further argues that even if the Original Application met the
EAJA’s “showing” requirement, the Original Application was jurisdic-
tionally defective because Biddle Sawyer failed to comply with the
signature and verification requirements of EPA’s implementing regu-
lations at 40 C.F.R. § 17.11(f). The Region contends that because
of the above-noted deficiencies, Biddle Sawyer failed to satisfy the
EAJA’s jurisdictional requirements within the 30-day filing period.
As a consequence, the Region concludes that the ALJ erred in allow-
ing Biddle Sawyer to “cure” the above-noted deficiencies through the
filing of an out-of-time amended application. Under the Region’s anal-
ysis, the ALJ did not have jurisdiction once the original 30 days
allowed for filing a proper application had passed.

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922 ENVIRONMENTAL ADMINISTRATIVE DECISIONS

It is well settled, and the Region and Biddle Sawyer do not
dispute,°° that the EAJA is a waiver of sovereign immunity and
therefore the terms of the government’s consent to be sued should
be strictly construed.31 It is also well settled, and the parties both
acknowledge, ®? that the 30-day time limitation contained in the
EAJA is jurisdictional and restricts an Agency’s ability to award
fees and expenses against the government. Finally, the parties do
not dispute‘ that with respect to corporations, fees and expenses
may be awarded under the EAJA only to those corporations that
do not have a net worth of over $7 million or more than 500 employ-
ees on the date of initiation of the underlying adversary action.®>
The parties disagree, however, over the nature of the showing of
eligibility necessary to perfect a claim under EAJA, and on whether
compliance with EPA’s signature and verification requirements is
jurisdictional.

1. Biddle Sawyer’s Original Application Was Sufficient To
   “Show” Eligibility

We turn first to the Region’s assertion that Biddle Sawyer’s
Original and Amended Applications were jurisdictionally defective
because neither properly “showed” Biddle Sawyer’s eligibility as re-
quired by the EAJA. The Region argues that under the EAJA, in
order for an applicant to “show” that it is eligible, an applicant
must “prove,” that it is eligible within the 30-day time period. The
Region argues that this result is mandated by EPA’s EAJA imple-
menting regulations, federal case law, and the EAJA’s legislative
history. The Region argues that Biddle Sawyer failed to make the
requisite “showing” of eligibility under the EAJA in this case, because

30See Region's Appellate Brief, at 4 & 9; see also Biddle Sawyer’s Appellate
Brief (no argument advanced on this issue).

31 Ardestani v. Immigration and Naturalization Service, —- U.S. —, 112 S.
Ct. 515, 520, 116 L.Ed.2d 496 (1991).

32See Region's Appellate Brief, at 10 n.34; Biddle Sawyer’s Appellate Reply Brief,
at 5.

83See Howitt v. United States Dep't of Commerce, 897 F.2d 583 (Ist Cir. 1990),
cert. denied, 498 U.S. 895 (1990); Long Island Radio Co. v. NLRB, 841 F.2d 474,
477 (2d Cir. 1988) (time limit for filing EAJA fee application could not be waived
by the agency); Action on Smoking and Health v. Civil Aeronautics Board, 724 F.2d
211, 225, (D.C. Cir. 1984); Monark Boat Co. v. Nat'l Labor Relations Board, 708
F.2d 1322, 1327 (8th Cir. 1983).

84See Region's Appellate Brief, at 10; Biddle Sawyer’s Amended Application, at
2.

35 See Commissioner, Immigration and Naturalization Service v. Jean, 496 U.S.
154, 110 S. Ct. at 2319, 110 L. Ed.2d 134 (1990).
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BIDDLE SAWYER CORPORATION 923
it failed to submit the documentation necessary to prove its eligibility
in either the Original or Amended Application.

First, the Region argues that Biddle Sawyer failed to “show”
its eligibility because it failed to submit any documentation to support
its assertion that it had less than 500 employees on September 28,
1988, (the day the parties assume that the underlying enforcement
proceeding was initiated). The Region argues that Biddle Sawyer
should have submitted a copy of the payroll listing for that date
to “show” this fact. Region’s Appellate Brief, at 14. Instead, Biddle
Sawyer stated, generally, in its Original Application, that it was
eligible and that it employed less than 100 employees on September
28, 1988. Original Application, at 1 & 3. The Region does not contest
the accuracy of the number of Biddle Sawyer’s employees. Rather,
the Region argues that statements without more were “not sufficient
to establish eligibility.” Region’s Appellate Brief, at 14.

Second, the Region argues that Biddle Sawyer failed to “show”
eligibility because Biddle Sawyer’s documentation did not adequately
specify the net worth of the company on September 28, 1988. Region’s
Appellate Brief, at 14-15. Biddle Sawyer’s Original Application stat-
ed, generally, that Biddle Sawyer was eligible and, more specifically,
that it had a net worth of less than $7 million on September 28,
1988. Original Application, at 1 & 3. That Original Application also
contained a “net worth exhibit” as required under 40 C.F.R. Part
17, which included an audited financial statement reflecting Biddle
Sawyer’s net worth at $4.615 million on December 31, 1988, and
an attached statement representing that there had been no transfers
of assets or incurrence of new obligations between September 28,
1988, and December 31, 1988. Id. at Exh. A. The Amended Applica-
tion repeats these statements and, again, contains the “net worth
exhibit” along with a declaration under penalty of perjury that the
information contained in these documents is true. Amended Applica-
tion, at 1, 3, 8, & Exh. A.

The Region points out that the documentation submitted by Bid-
dle Sawyer also reflects that on December 31, 1987, the net worth
of Biddle Sawyer was $8.667 million. Region’s Appellate Brief, at

14. In light of this fact, the Region argues that Biddle Sawyer’s
    documentation of net worth on December 31, 1988, and the “unsup-
    ported claims as to its financial status around the time that the
    action was initiated by the Agency” are insufficient to show eligibility
    regarding net worth. See id. at 14-15. The Region argues that Biddle
    Sawyer should have provided documentation rather than a represen-
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924 ENVIRONMENTAL ADMINISTRATIVE DECISIONS
tation to show that its net worth on September 28, 1988, was less
than $7 million. Id. at 15.

Biddle Sawyer argues, in response, that allegations or statements
alone in an application are sufficient to “show” eligibility for an
EAJA award and that an application is jurisdictionally defective only
if it contains “no explicit allegation” that the applicants are eligible.9¢
It maintains that the information contained in the Original Applica-
tion was sufficient to establish eligibility.37 Finally, it asserts that
the EAJA allows an applicant to submit supplemental proof of eligi-
bility after the thirty-day filing period.2* For the reasons set forth
below, we agree that Biddle Sawyer provided sufficient information
in its Original Application to “show” that it met the EAJA’s eligibility
requirements.

EPA’s procedures for implementing the EAJA at 40 C.F.R. Part
17 provide that an EAJA application must “include a statement that
the applicant’s net worth as of the time the proceeding was initiated
did not exceed [the statutory amount]”%° and must “state that the
applicant did not have more than 500 employees at the time the
proceeding was initiated, giving the number of its employees.” 40
C.F.R. § 17.11(b) & (c) (emphasis added). The regulations further pro-
vide that each corporate applicant “must submit with its application
a detailed exhibit showing its net worth at the time the proceeding
was initiated.” 40 C.F.R. § 17.12(a). This net worth exhibit “may
be in any form that provides full disclosure of assets and liabilities
of the applicant and is sufficient to determine whether the applicant
qualifies under the standards of 5 U.S.C. § 504(b)(1)(B)(i).” Id. The
record shows that Biddle Sawyer fulfilled these obligations.

36 Biddle Sawyer’s Appellate Reply Brief, at 8.

371d.

381d.

3°The EAJA was amended in 1985 to increase the statutory limit on net worth
from $5 million to $7 million for corporations such as Biddle Sawyer. Pub. L. No.
99-80, § 1(c)(1), 99 Stat. 183 (1985). While the Agency has failed to update the regu-
latory provision at 40 C.F.R. § 17.11(a) to reflect the increase in the statutory limit
on net worth, this failure appears to be inadvertent and does not affect the applicability
of this regulatory provision. Cf. In re Proceedings to Determine Whether to Withdraw
Approval of North Carolina’s Hazardous Waste Management Program, Dkt. No, RCRA—
SHWPAW-IV-01-87 (Adm’r, August 27, 1990) (EPA's failure to update 40 C.F.R.
§ 17.4 regarding the period of time that the EAJA is applicable, as enacted in 1980,
does not affect the applicability of part 17 to EAJA claims asserted under the 1985
reauthorization of the EAJA); In re Corson Services, Inc. d/b/a Corson Swimming
Pools, FIFRA Dkt. No. 09-0433-C-85-12 (CJO, Dec. 23, 1987) (same). Clearly, the
current statutory limit on net worth controls and the Region has not argued otherwise.
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BIDDLE SAWYER CORPORATION 925

The Region’s contention that more was required in the applica-
tion itself to show eligibility is unsupported. First, the regulation
requiring a net worth exhibit provides that “[t]he Presiding Officer
may require an applicant to file additional information to determine
the applicant’s eligibility for an award.” 40 C.F.R. § 17.12(a). Second,
the regulations provide that:

Ordinarily, the determination of an award will be
made on the basis of the written record of the under-
lying proceeding and the filings required or per-
mitted by the foregoing sections of these rules. How-
ever, the adjudicative officer may sua sponte or on
motion of any party to the proceedings require or
permit further filings or other action, such as an in-
formal conference, oral argument, additional written
submissions, or an evidentiary hearing. Such further
action shall be allowed only when necessary for full
and fair resolution of the issues arising from the
application and shall take place as promptly as pos-
sible. * * *
40 C.F.R. § 17.25(b). (Emphasis added.)

Thus, contrary to the Region’s contentions, the Agency's regula-
tions do not require that an applicant fully “prove” rather than mere-
ly assert eligibility within the thirty-day filing deadline. Indeed, if
the EAJA required an applicant to prove eligibility within the thirty-
day filing period as a jurisdictional requirement, there would be no
need for regulatory provisions allowing the submission of supple-
mental information since any application that did not prove eligibility
within the original thirty-day period would be dismissed for lack
of jurisdiction. There would be no basis for a regulation that allows
for further evidence to be submitted and the matter resolved by
a hearing if necessary.*°

40The regulations contemplate that the determination of eligibility can be made
on the basis of “the filings required or permitted” by the regulations. 40 C.F.R.
§ 17.25(b). Accordingly, the number of an applicant's employees on the relevant date
may be shown by a “statement” of that fact in the application supported by a written
verification as to the truth of the statement. See 40 C.F.R. §§ 17.11 (b) & (f). Similarly,
the net worth of an applicant on the relevant date may be shown by a written
verification under penalty of perjury that the statements in the application and the
“net worth exhibit” are true. See 40 C.F.R. §§ 17.11 (a) & (f) and 17.12(a). We note
that the net worth exhibit “may be in any form” that is sufficient to show eligibility.
See 40 C.F.R. § 17.12(a). Consequently, the Agency has not construed the EAJA to
require “detailed documentation” rather than mere “statements” in an affidavit to

Continued
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926 ENVIRONMENTAL ADMINISTRATIVE DECISIONS

Here, Biddle Sawyer provided a statement in its Original Appli-
cation to the effect that it employed less than 100 employees and
submitted a new worth exhibit to “show” that it had a net worth
of less than $7 million. In these circumstances, we find that Biddle
Sawyer satisfied in its Original Application the requirement of the
EAJA to “show” eligibility.

Next, we reject the Region’s contention that this result is incon-
sistent with federal case law interpreting the EAJA. The federal
courts‘! have consistently held that allegations of eligibility in an
EAJA application are sufficient to comply with the application re-
quirements of the EAJA.

One example of federal case law is D’Amico v. Industrial Union
of Marine and Shipbuilding Workers of America, 630 F. Supp. 919
(D. Md. 1986). In that case, the NLRB challenged an EAJA petition
in part arguing that the petition merely “alleged” that the applicant
met the net worth and employee limits for eligibility, and that this
allegation was insufficient. The NLRB argued that the applicant must
submit a balance sheet showing its net worth, and that its failure
to do so constituted a jurisdictional bar to eligibility. Id. at 922.

The court rejected this argument, stating:

While it is clear that the statute places the burden

of establishing eligibility on the applicant, it would

impose unnecessarily burdensome restrictions on re-

covery to require an applicant to prove, to the gov-

ernment’s satisfaction and in its initial application

for fees and costs under the EAJA, that the applicant

met all of the eligibility requirements.
Id. The court further stated:

Dismissing an application because the applicant, al-

though possibly eligible, did not submit an affidavit
show eligibility. Furthermore, even when the regulations have required “full docu-
mentation” to show fees and expenses, that requirement may be fulfilled in whole
or in part by mere statements in an affidavit. See 40 C.F.R. § 17.13.

41The EAJA is set forth at both 5 U.S.C. § 504 and 28 U.S.C. §2412. Under
Title 28, the EAJA authorizes a court in civil actions to award fees and costs against
the United States while, under Title 5, the EAJA authorizes a federal agency that
conducts an adversary adjudication to award fees and costs against that agency. The
provision setting forth the pleading and proof requirements of the EAJA at 5 U.S.C.
§ 504(a)(2) is virtually identical with the provision of the EAJA at 28 U.S.C.
§ 2412(d)(1)(B).

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BIDDLE SAWYER CORPORATION 927
of net worth or number of employees until such eligi-
bility was challenged would constitute a miserly in-
terpretation of the language of the statute and would
violate the announced legislative intent of the Act.
It appears more consistent with the purposes of the
Act to find that, while it is advisable that applicants
for EAJA fees indicate in their application, by affida-
vit or allegation, that they are eligible to receive
such fees, the applicant need not prove such eligi-
bility until some objection to their eligibility is raised
by the government.
Id. at 922-923. Other courts have held similarly.42
We disagree with the Region’s argument that the decision in
U.S. v. Hopkins Dodge Sales, Inc., 707 F. Supp. 1078 (D. Minn.
1989), mandates a different result. In Hopkins Dodge, the district
court dismissed an EAJA application on the grounds that the appli-
cant failed to “allege eligibility’ or to “provide factual information
that would show * * * eligibility.” Hopkins Dodge, 707 F. Supp. at
1080. While an affidavit filed the day after the EAJA’s 30-day dead-
line had passed did allege sufficient facts to show that the applicant
was an eligible party, the court refused to consider the affidavit
on the grounds that it was not timely filed. Id. The court determined
that the original application was “defective” and had the same effect
as an untimely filed application. Id. Since waivers of sovereign immu-
nity must be strictly construed, the court held that “the showing
of eligibility [in the application] is not merely a notice requirement
{but rlather, it is jurisdictional and a prerequisite to government
liability.” Id. at 1081.
The Region argues that Hopkins Dodge mandates our rejection
of Biddle Sawyer’s Original Application because Biddle Sawyer did
2See Lee, 799 F.2d at 35 (uncontested allegation in an application that the
applicant had less than 500 employees was sufficient to sustain the applicant's burden
of proof to show eligibility); Dunn v. United States, 775 F.2d 99, 103 (3d Cir. 1985)
(allegation in a petition that an individual’s net worth did not exceed the statutory
amount established eligibility); see also Carlisi v. Secretary of Health and Human
Services, 583 F. Supp. 135, 139 n.7 (E.D. Mich, 1984) (court stated, in dicta, that
the failure to provide information in an application regarding a plaintiffs net worth
would not be a fatal error when the court can take judicial notice of a party's eligi-
bility); cf J.M.T. Machine Co., Inc. v. United States, 826 F.2d 1042, 1047 (Fed. Cir.
1987) (request for attorney’s fees in the trial brief was not a proper application for
fees because it did not “allege” that a final judgment had been entered, that the
applicant was a prevailing party or was eligible to receive an award, or that the
position of the agency was not substantially justified).
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928 ENVIRONMENTAL ADMINISTRATIVE DECISIONS

not submit documentation to “prove” its assertions of eligibility. We
do not agree. In Hopkins Dodge, the petition was held insufficient
because there was neither an allegation of eligibility nor factual infor-
mation that would support a “showing” of eligibility. There is no
dispute, however, that there must be some showing of eligibility with-
in the EAJA’s 30-day filing period to satisfy the EAJA’s jurisdictional
prerequisites. We do not, however, read Hopkins Dodge as requiring
an applicant to “prove”, as opposed to “show”, its eligibility during
that period.4? With this distinction in mind, we find the facts of
Hopkins Dodge wholly distinguishable from the facts in the present
case. In contrast to the facts in Hopkins Dodge, here it is clear
that Biddle Sawyer stated that it met the EAJA eligibility criteria
in its Original Application. In particular, Biddle Sawyer stated that
it had less than 100 employees and a net worth of less than $7
million. In addition, Biddle Sawyer submitted a net worth exhibit
to support its eligibility claim. For these reasons, we conclude that
Hopkins Dodge does not mandate rejection of Biddle Sawyer’s Origi-
nal Application.

Further, we also reject the Region’s contention that “proof” of
eligibility in an original EAJA application is required based on an
examination of the EAJA’s legislative history.44 The Region bases
its argument on the distinction drawn in the 1980 House Report 45
between the words “show” and “allege” in connection with the section
of the EAJA which requires the federal government to “show” that
its position is substantially justified. The Report states:

[T]he effect [of Section 504(a)] is to place the burden
on the government to make a positive showing that
the position and actions during the course of the
43Further, we note that other federal courts have not interpreted the EAJA as
strictly as the Hopkins Dodge Court. See D'Amico, supra; see also Carlisi, supra;
cf. J.M.T. Machine Co., supra. For example, in Dunn the Third Circuit has held
that:
Congress did not intend that defects in the pleading requirements
of [the EAJA] be treated as jurisdictional. So long as a fee petition
is filed within the 30-day period which puts the court, and eventu-
ally the government, on notice that the petitioner seeks fees under
the [EAJA], the court may consider the petition, and may, absent
prejudice to the government or noncompliance with court orders
for timely completion of the fee determination, permit
supplementation.
Dunn, 775 F.2d at 104.
44Region’s Appellate Brief, at 12 n.39.
45H.R. Rep. No. 1418, 96th Cong., 2d Sess. 13 (1980) reprinted in 1980
U.S.C.C.A.N. 4984, 4992 (“1980 House Report”).
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BIDDLE SAWYER CORPORATION 929
proceedings were substantially justified or that some
other circumstance makes an award unjust. * * *
In order to defeat an award, the government must
show that its case had a reasonable basis in law
and fact. Absent such a showing, fees should be
awarded unless some other circumstances make an
award unjust. * * *

The bill also sets out procedures in adversary adju-
dications (and later court actions) by which the pre-
vailing party may apply for fees. The party must
make a simple allegation that the United States
acted without substantial justification.

1980 House Report, at 13 (emphasis added).

The Region argues that this discussion demonstrates that Con-
gress intended a difference between a “showing” and an “allegation.”
Therefore, the Region concludes, because Congress used the word
“show” in connection with an applicant establishing eligibility, it must
have intended something more than an “allegation” of eligibility; it
must have intended that eligibility be proven.

Again, we disagree. We read the discussion in the House Report
to mean that once the applicant alleges a lack of substantial justifica-
tion, the federal government bears the ultimate burden of proving
that its position is substantially justified. The question of whether
something is “substantially justified” is a subjective one, not purely
a matter of objective fact. The Region has failed to show why the
distinction in this context suggests anything regarding the nature
of the purely factual information that must be submitted in an appli-
cation to support a showing of eligibility. In any event, the Part
17 regulations do require more than an “allegation” of eligibility
to satisfy the showing requirement (e.g., submission of a net worth
statement) and those requirements were complied with here.

Finally, we do not share the Region’s concern that EPA will
be prejudiced if the EAJA is not construed strictly in its favor to
require documentary proof rather than “conclusory statements” in
a timely filed application. Prejudice, the Region argues, would occur
because EPA would be exposed “to potential liability for a much
longer period than intended by Congress.” 46 The Region reasons that
to allow mere statements of eligibility to establish an agency’s juris-

46 Region’s Appellate Brief, at 20.
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930 ENVIRONMENTAL ADMINISTRATIVE DECISIONS

diction to entertain an EAJA claim “permits the applicant the oppor-
tunity [after] the thirty (30) day filing deadline, to show its eligibility”
which, in turn, “permit[s] a court to exercise jurisdiction over a party
after the time for filing a complete application has passed and is
equivalent to the Court waiving the jurisdiction requirements man-
dated by Congress.” 47

We find this argument to be circular and unpersuasive. To con-
clude that there would be a waiver of jurisdictional requirements,
one must first conclude that those requirements were not initially
satisfied, but that is the very issue in dispute. Under EPA’s rules,
an applicant must submit certain information under Part 17 to
“show” eligibility. We do not accept, however, that an applicant must
submit all of the documentation necessary to “prove” it is eligible
in its application in order to satisfy the jurisdictional requirements
of the EAJA. Thus, we do not agree that allowing an EAJA applicant,
who has submitted the information required in a timely filed applica-
tion, an opportunity to prove its eligibility with additional evidence
after the date for filing an application has passed, will result in
prejudice to EPA. To the contrary, EPA’s rules contemplate that
in certain cases more evidence may be required.

Accordingly, we find that the ALJ was correct in concluding
that Biddle Sawyer’s Original Application satisfied the jurisdictional
requirement of the EAJA to “show” eligibility within the initial 30-
day period.

2. Biddle Sawyer’s Original Application Was Not Jurisdic-
   tionally Defective for Failing to Include the “Applicant’s”
   Signature and Verification Under Oath

We now turn to the Region’s contention that the Original Applica-
tion was jurisdictionally defective because it failed to comply with
the signature and verification requirements of 40 C.F.R. § 17.11(f).
As noted above, Section 17.11(f) provides, in pertinent part, that:

The application shall be signed by the applicant with

respect to the eligibility of the applicant and by the

attorney of the applicant with respect to fees and

expenses sought. The application shall contain or be
accompanied by a written verification under oath or
affirmation or under penalty of perjury that the in-
formation provided in the application and all accom-
411d. at 21-22.
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BIDDLE SAWYER CORPORATION 931
panying material is true and complete to the best
of the signer’s information and belief.

Here, Biddle Sawyer’s Original Application contains the signature
and verification under oath of Biddle Sawyer’s attorney but not the
signature or verification under oath of any officer of Biddle Sawyer.4®
Biddle Sawyer’s Amended Application, in contrast, was signed by
Biddle Sawyer’s Chairman and Chief Operating Officer, as well as
by its attorney. The ALJ determined that EPA’s requirement that
a corporate representative of Biddle Sawyer sign the original applica-
tion is “a procedural requirement and not a jurisdictional one.” 49
Accordingly, the ALJ concluded that any defect in Biddle Sawyer’s
Original Application was not jurisdictional.

The Region argues that the signature and verification require-
ments implement jurisdictional requirements of the EAJA, and, there-
fore, the ALJ erred in concluding that the Original Application was
jurisdictionally sufficient. Specifically, the Region argues that the
signature requirement of § 17.11(f) implements the jurisdictional re-
quirement of 5 U.S.C. § 504(a)(2) that the application show that the
party is a “prevailing party.” The Region reasons that: 5°

It is the prevailing party rather than the lawyer
who is entitled to the attorney’s fees [citing to cases
holding that the prevailing party rather than that
party’s attorney has standing to apply for EAJA fees
and expenses]. The law is intentionally structured
in this manner so as to prevent the creation of a
conflict of interest when an attorney and client have
independent entitlements.
The Region further argues that the verification requirement of
§ 17.11(f) fulfills two jurisdictional purposes: (1) “the Congressional
assumption that a truthful application would be submitted by the
prevailing party”, and (2) the jurisdictional requirement that the ap-
plicant “show” eligibility.51
48Where the applicant is a corporation, the regulations do not identify who should
sign on behalf of the corporation.
4° Recommended Decision, at 4, The ALJ did not address the verification require-
ment of § 17.11(f. We assume the ALJ concluded that the same reasoning applies.
50 Region’s Appellate Brief, at 28-29.
51 Region’s Appellate Brief, at 29.
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932 ENVIRONMENTAL ADMINISTRATIVE DECISIONS

Biddle Sawyer argues in response that the signature and verifica-
tion requirements are “purely procedural.” 5? It argues that “(defects
in pleadings that are timely filed do not present jurisdictional bar-
riers when there is no prejudice to the opposing party,” citing to
Dunn, 775 F.2d 99, 104 (3d Cir. 1985).53 It argues that the Region
was not prejudiced by Biddle Sawyer’s failure to fully comply with
EPA’s signature and verification requirements in Biddle Sawyer’s
Original Application.5+

As discussed above, we are mindful that the EAJA is a waiver
of sovereign immunity and therefore the conditions of the waiver
must be strictly construed. Ardestani, 112 S. Ct. at 520; cf. United
States v. Kubrick, 444 U.S. 111, 118-119, 100 S. Ct. 352, 357, 62
L. Ed. 2d 259 (1979) (Federal Tort Claims Act). We are also mindful,
however, that we are not to “assume the authority to narrow the
waiver that Congress intended.” See Ardestani, 112 S. Ct. at 520;
Indian Towing Company v. United States, 350 U.S. 61, 68-69, 76
S. Ct. 122, 126, 100 L.Ed.48 (1955) (the court should not, “as a
self-constituted guardian of the Treasury[,] import immunity back
into a statute designed to limit [immunity]”). In other words, the
Agency’s rules of procedure relating to its exercise of jurisdiction
under the EAJA should not enlarge or restrict the jurisdiction that
Congress intended the Agency to exercise. Cf. Ardestani, supra; Co-
lumbia Manufacturing Corp. v. National Labor Relations Board, 715
F.2d 1409, 1410 (9th Cir. 1983) (NLRB has no authority to enlarge
its jurisdiction under the EAJA). If a requirement is a rule of proce-
dure implementing a jurisdictional requirement, as argued by the
Region, it follows that this requirement may not be waived by the
ALJ. Cf. Torres v. Oakland Scavenger Co., 487 U.S. 312, 108 S.
Ct. 2405, 2409 n.3, 101 L. Ed. 2d 285 (1988) (federal rule of appellate
procedure requiring appellant to name parties to the appeal was
a jurisdictional requirement that could not be waived). If, however,
the Part 17 requirement that the applicant sign and verify the appli-
cation is not considered implementing a jurisdictional requirement,
than an application cannot be rejected on this basis. For the reasons

52 Biddle Sawyer’s Appellate Reply Brief, at 10.

53d, See note 43 supra.

54Biddle Sawyer asserts that the Region has not represented, much less offered
evidence to show, that the contents of the Original Application or Amended Application
are untruthful. Biddle Sawyer’s Appellate Reply Brief, at 11. It further asserts that
the Region has not represented that an actual conflict of interest exists between
Biddle Sawyer and its attorneys. Id. at 12. Biddle Sawyer also argues that it complied
with the signature requirement regarding net worth because its accountant signed
the net worth exhibit. Id. at 11.
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BIDDLE SAWYER CORPORATION 933
set forth below, we conclude that the Part 17 signature and verifica-
tion requirements are not jurisdictional.

First, the statute does not require the applicant’s signature or
verification under oath. The EAJA at 5 U.S.C. § 504(a)(2) requires
that to recover fees and expenses, an application must “show” that
the applicant is the “prevailing party” and is “eligible” for an award
in accordance with 5 U.S.C. § 504(b)(1)(B).55 On its face, § 504(a)(2)
does not require that a “party” sign or verify under oath the state-
ments in the application.

A review of the legislative history for the EAJA reveals that
Congress expressed no view on whether the application must be
signed and verified under oath by the applicant.5° Rather, the legisla-
tive history tends to suggest that Congress wanted to create “an
effective legal or administrative remedy”®” and did not want to place
unreasonable barriers before parties who are eligible for fees and
expenses. As such, we find nothing in the EAJA’s legislative history
to suggest that EPA’s signature and verification requirements are
jurisdictional.

This view is confirmed by our review of the signature require-
ment set forth in the Model Rules for Implementation of the Equal
Access to Justice Act in Agency Proceedings (“Model Rules”) promul-
gated by the Administrative Conference of the United States
(“ACUS”) at 1 C.F.R. Part 315.58 The Model Rules provide that the
application must be signed “by the applicant or an authorized officer
or attorney of the applicant.” See 1 C.F.R. §315.201(e) (emphasis
added).5° Since the signature provision of the Model Rules does not

5 Section 504(a)(2) was intended by Congress to establish “procedures in adversary
adjudications (and later court actions) by which the prevailing party may apply for
fees.” 1980 House Report, at 13.

56 1980 House Report; 1985 House Report.

7 1980 House Report, at 12.

58The EAJA provides that the agencies must consult with the Chairman of the
ACUS before establishing “uniform procedures for the submission and consideration
of applications for an award of fees and other expenses.” 5 U.S.C. § 504(c)(1). The
Model Rules were “designed to assist agencies in adopting or amending their own
regulation’s for implementation of the [EAJA].” 51 Fed. Reg. 16,659 (May 6, 1986).

59We note that several agencies have adopted the model rule. Those agencies
include the following: Federal Deposit Insurance Corporation (12 C.F.R. §§308.7(a),
10, and 169); National Aeronautics and Space Administration (14 C.F.R. § 1262.201(e));
Office of the Secretary of Commerce (15 C.F.R. §18.11(e)); Securities and Exchange
Commission (17 C.F.R. §201.41(e)); International Trade Commission (19 C.F.R.
§212.10(e)); Commodity Futures Trading Commission (17 C.F.R. § 148.11); Department
of State (22 C.F.R. §134.11(e)); National Labor Relations Board (29 C.F.R. § 147(e));

Continued
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934 ENVIRONMENTAL ADMINISTRATIVE DECISIONS

require the applicant’s signature on the application, the Model Rules
discredit the Region’s position that the Agency’s requirement that
the “party” sign the application is jurisdictional under the statute.

For all of these reasons, we conclude that the signature require-
ment is not jurisdictional. We similarly conclude that the verification
under oath requirement is not jurisdictional. The verification require-
ment serves an important purpose of assuring the validity of the
information relied upon in making an EAJA determination. We are
not, however, persuaded that Congress intended to bar an EAJA
award to a person who makes truthful allegations as to its eligibility
in the application but who fails to verify the allegations under oath
within the thirty-day filing period. As discussed above, the EAJA
has not been interpreted by the federal courts or by EPA regulations
in Part 17 to require more than allegations to meet the applicant’s
burden of going forward to show eligibility.©°

Accordingly, Biddle Sawyer’s Original Application was not juris-
dictionally defective even though it was not signed or verified in
conformance with Section 17.11(f). We, therefore, conclude that the
ALJ had the authority to allow Biddle Sawyer to file the Amended
Application which conformed to the signature and verification re-
quirements set forth under § 17.11(f). We further conclude that the
ALJ did not abuse his discretion in granting leave to Biddle Sawyer
to file the Amended Application.

On the basis of the allegations of eligibility made in the Amended.
Application and information contained in the net worth exhibit sub-
mitted with that application, and Biddle Sawyer’s declaration under
penalty of perjury that all the information in those documents is
true, we conclude that Biddle Sawyer has met its burden of proof
to show it is a person eligible for an EAJA award. As a result,
the ALJ had jurisdiction to determine whether Biddle Sawyer should
Department of Health and Human Services (45 C.F.R. §13.10(b)); Small Business
Administration (29 C.F.R. § 132.301(d)); Occupational Safety and Health Review Com-
mission (29 C.F.R. §2204.201(e)); Postal Service (39 C.F.R. §960.9(e)); National Trans-
portation Safety Board (49 C.F.R. §826.21(e)). EPA’s signature requirement does not
follow the model rule. It is identical to, and likely modeled after, the signature provi-
sion established by the Department of Justice (“DOJ”) to implement the EAJA. See
28 C.F.R. §24.201(f). The preamble to the DOJ rules implementing the EAJA, like
the preamble to Part 17 of EPA’s regulations, provides no discussion of this signature
requirement. 46 Fed. Reg. 63,021 (Dec. 29, 1981); 47 Fed. Reg. 15,774 (April 13,
1982). However, the fact that so many agencies have adopted the model rule, permit.
ting signature by an attorney in lieu of the applicant, supports the conclusion that
signature of an attorney is jurisdictionally sufficient under the statute.

© See note 42, supra.
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BIDDLE SAWYER CORPORATION 935
be awarded attorneys’ fees and expenses pursuant to the EAJA.
Therefore, we will now turn to whether there is any bar to an award
of fees and expenses.

B. The Region Was Not Substantially Justified in Its Position in
the Underlying Proceeding

The Region argues that the ALJ erred in awarding attorneys’
fees and expenses to Biddle Sawyer under the EAJA because the
Region’s position in the underlying enforcement action was “substan-
tially justified.” As discussed above, an EAJA award shall not be
made if the “adjudicative officer of the agency finds that the position
of the agency was substantially justified.” 1 5 U.S.C. § 504(a)(1). The
agency has the burden of proving that its position was substantially
justified. Green v. Bowen, 877 F.2d 204, 207 (2d Cir. 1989). Whether
the agency’s position was substantially justified is “determined on
the basis of the administrative record, as a whole, which is made
in the adversary adjudication for which fees and other expenses are
sought.” 5 U.S.C. § 504(a)(1). The fact that the agency did not prevail
does not create a presumption that the agency’s position was not
substantially justified. 40 C.F.R. § 17.6(a); 1980 House Report, at

11. Rather, an agency’s position is “substantially justified” under
    the EAJA if it were “justified to a degree that could satisfy a reason-
    able person.” See Pierce v. Underwood, 487 U.S. 552, 108 S. Ct.
    2541, 2550, 101 L. Ed. 2d 490 (1988).

The Region argues that the Region’s “position” in the adversary
adjudication was substantially justified because “a reasonable person
reading the plain language of the regulation could have concluded,
as the Agency did, that Biddle Sawyer was subject to 40 C.F.R.
§ 766.35(a)(1),” and that 40 C.F.R. § 766.2 (the applicability provision)
defined only the rule’s “duration.” Region’s Appellate Brief, at 44.
The Region goes on to explain on appeal that the ALJ’s contention
that the plain language of § 766.2 acted to bar the underlying action
does not undercut the reasonableness of the Region’s position. As
noted above, Section 766.2 provides that “[t]his part is applicable
to each person who * * * manufactures (and/or imports)” the subject
chemicals. While the Region agrees that Biddle Sawyer stopped im-
porting the subject chemicals before the regulation’s effective date,
the Region argues that because Biddle Sawyer retained a portion
of the subject chemical, it was still engaged in the act of “importa-
tion,” and therefore should have tested the chemicals. The Region

1The “position of the agency” means the position taken by the agency in the
adversary adjudication. 5 U.S.C. § 504(b(1)(E).

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936 ENVIRONMENTAL ADMINISTRATIVE DECISIONS

contends that this reading of § 766.2 is not an “unreasonable reading
of the regulations * * * [and that] it was not unreasonable for the
Agency to seek the court’s guidance in resolving this issue * * *.”
Id, at 45.

Initially, we agree that, on its face, § 766.35(a)(1)(i) would appear
to require any person who imported a listed chemical substance be-
tween January 1, 1984, and the effective date of Part 766 (July
6, 1987) to submit either a letter of intent to test or an exemption
application. A reasonable person, however, would look to the totality
of Part 766 to make a determination as to the applicability of that
subparagraph.

A review of the regulatory scheme of Part 766 reveals that the
applicability of Part 766 is established at § 766.2(a). By its express
terms, paragraph (1) of that subsection concerns the class of persons
to whom Part 766 is applicable and paragraph (2) concerns the dura-
tion of that Part. A reasonable person could not read § 766.2(a)(1),
which speaks explicitly in terms of applicability to certain persons,
without concluding that it established criteria for determining the
category of persons to whom Part 766 applied.

The Region did not provide in the underlying proceeding any
discussion regarding the effect of § 766.2(a)(1) on the applicability
of § 766.35(a)(1)(i). To meet its burden to show that its position in
the underlying proceeding was substantially justified, the Region
must show that a reasonable person could believe that § 766.2(a)(1)
was either harmonious with the Region’s interpretation of the appli-
cability of § 766.35(a)(1)(i) or that § 766.2(a)(1) was for some reason
inapplicable under the circumstances of this case. By failing to pro-
vide any argument whatsoever that a reasonable person could believe
that § 766.35(a)(1)(i) should be applied to a person who is not other-
wise subject to Part 766, the Region has failed to make a prima
facie case that its position in the underlying proceeding was reason-
able in law and thus substantially justified.

The Region’s contention now on appeal that its position was
substantially justified because Biddle Sawyer could have been found
liable based on a more expansive definition of importation must also
fail. We agree that the position articulated by the Region on appeal
is not necessarily “unreasonable.” The test is not, however, whether
the Region’s position on appeal is substantially justified. Rather, the
test under the EAJA is whether the “position of the agency,” “in
the adversary adjudication,” was substantially justified “on the basis
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BIDDLE SAWYER CORPORATION 937
of the administrative record * * * made in the adversary adjudica-
tion.” 5 U.S.C. § 504(a)(1) and (b)(1(E).

Our review of the administrative record made in the adversary
adjudication reveals that the Region never advanced this interpreta-
tion of the regulations in the underlying enforcement action. Rather,
this argument appears for the first time in the Region’s Answer
to Biddle Sawyer’s Application for Fees and Other Costs. In these
circumstances, the ALJ properly ignored the Region’s new theory
as to why § 766.35(a)(1)(i) applied to Biddle Sawyer.62

Accordingly, we conclude that the ALJ properly determined that
the Region’s position in the adversary adjudication was not “substan-
tially justified.”

C. The Region Has Not Established “Special Circumstances” Which
Would Make An Award Unjust

Next, the Region argues that the ALJ erred in awarding attor-
neys’ fees and expenses to Biddle Sawyer because “special cir-
cumstances” exist which render an award under the EAJA unjust.
Specifically, the Region argues that “special circumstances” exist be-
cause the underlying enforcement action involved two issues of first
impression: (1) whether “an importer, who ceased importation but
still retained [ownership of] the chemical substance on the effective
date of the Rule, was subject to 40 C.F.R. Part 766” and (2) whether
40 C.F.R. § 766.35(a)(1)(i) may be applied retroactively to such a
person. (Region’s Appellate Brief, at 50-51.)

The EAJA provides that an award shall not be made if the
adjudicative officer of the agency finds that “special circumstances
make an award unjust.” 5 U.S.C. § 504(a)(1). The “special cir-
cumstances” exception is described in the legislative history as a:

‘safety valve’ . . . to insure that the Government

is not deterred from advancing in good faith the

novel but credible extensions and interpretations of

the law that often underlie vigorous enforcement ef-

forts. It also gives the court discretion to deny
©2Furthermore, the Region did not argue in the EAJA proceeding before the
ALJ that Biddle Sawyer should be liable under § 766.35(a)(1)(i) because, by retaining
possession of the subject substance, it could perform the tests required by Part 766.
Indeed, the Region argued that any testing requirement of Section 4 of TSCA was

irrelevant to its enforcement of § 766.35(a)( 1)(i).

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938 ENVIRONMENTAL ADMINISTRATIVE DECISIONS

awards where equitable considerations dictate an

award should not be made.
1980 House Report, at 11. Thus, this exception preserves government
efforts to present creative legal interpretations which, though not
yet commonly accepted, still merit the court’s careful examination.
As with the “substantial justification” provision, the government has
the burden of demonstrating the existence of special circumstances
that would render an award unjust. Russell v. Nat'l Mediation Bd.,
775 F.2d 1284, 1290 (5th Cir. 1985).

With respect to the Region’s interpretation of the term “importa-
tion,” the Region argued to the ALJ, in the proceeding for EAJA
fees and expenses,® that:

[The ALJ] could have determined that “importation”

does not cease with the specific act of entering the

territorial United States; but could have interpreted

“importation” under 40 C.F.R. Part 766 to mean en-

tering the territory of the United States and posses-

sion of the imported chemical substance until it had

been sold or that the importer no longer maintained

control/ possession.
The ALJ concluded that “special circumstances” did not exist because
the Region had offered no case law or legislative history to support
its interpretation of the term “importation” and therefore its position
was “weak at best.” We agree with the ALJ’s decision that there
are no special circumstances, although we do not think it is necessary
to reach the merits of the importation argument.

We recognize the legitimacy of the Agency’s advancing creative
(though credible) legal interpretations in its adjudications. Here, how-
ever, the Region never advanced the above-noted interpretation of
the term “importation” in the underlying adjudication. Rather, the
Region raised the argument for the first time in response to Biddle
Sawyer’s EAJA claim. We simply cannot find that special cir-
cumstances exist on the basis of the Region’s advancement of a cre-
ative theory when the Region did not in fact advance that theory
in the underlying proceeding.

63 Region’s Answer to Biddle Sawyer’s Application for Attorney's Fees and Costs,
at 13.
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BIDDLE SAWYER CORPORATION 939

Similarly, we need not decide the follow-up question of whether
“special circumstances” exist because the Region advanced an issue
of first impression regarding the Agency’s authority to apply
§ 766.35(a)(1)(i) retroactively to a person such as Biddle Sawyer. The
Region did not argue in the EAJA proceeding before the ALJ that
its retroactive application theory showed “special circumstances.” It
cannot make this argument for the first time on appeal. In these
circumstances, the Region has not established any special cir-
cumstances that would preclude an award of fees or expenses.®4
D. Whether the Fees and Expenses Awarded Are Reasonable

Finally, the Region challenges the reasonableness of certain fees
and expenses awarded by the ALJ. The Region also argues that
the ALJ failed to provide a sufficient explanation of his rationale
for awarding the fees. The ALJ awarded $26,823.75 for fees and
$3,828.96 for expenses to Biddle Sawyer.

The EAJA provides that “fees and expenses” must be reason-
able.®5 See 5 U.S.C. § 504(b)(1)(A). The fee applicant bears the burden
of establishing entitlement to an award and documenting the appro-
priate hours expended and hourly rates. Action on Smoking and
Health, 724 F.2d at 220.

1. Attorneys Fees

We turn first to the Region’s challenges to the ALJ’s award
of attorneys’ fees. Biddle Sawyer sought and was awarded attorneys’
fees for 357.65 hours of work, at the EAJA’s maximum fee rate
of $75, performed by five different attorneys: C.H. Marraro, J.G.
Eisen, L.B. Novey, M. Kornreich, and J.G. Bickerman. The Region
argues that the fees for some of the hours awarded to Biddle Sawyer
were inadequately documented, unrelated to the proceeding, and/or
duplicative.°* The Region also argues that the fee rate for one attor-
ney, Mr. Bickerman, should be reduced.

©4Because we have determined that § 766.2 barred this action, we do not reach
the merits of the Region’s retroactivity arguments. We leave that for a case where
the issue is squarely presented.

65 The Supreme Court has held that the amount of a reasonable fee is the number
of hours reasonably expended on litigation multiplied by a reasonable hourly rate.
Cf. Hensley v. Eckerhart, 461 U.S. 424, 433, 103 S. Ct. 1933, 76 L. Ed. 2d 40 (1983)
(award of fees and expenses under the Civil Rights Attorney’s Fees Awards Act of
1976, 42 U.S.C. § 1988).

In its Appellate Brief, the Region challenges specific hours submitted by Biddle
Sawyer’s attorneys and incorporates by reference its challenges to hours identified

Continued
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940 ENVIRONMENTAL ADMINISTRATIVE DECISIONS

The EAJA requires that the application must include “an item-
ized statement from any attorney, agent or expert witness represent-
ing or appearing in behalf of the applicant stating the actual time
expended and the rate at which fees and other expenses were com-
puted.” 5 U.S.C. § 504(a)(2). EPA regulations require the applicant
to submit an affidavit containing this information and “describing
the specific services performed.” 40 C.F.R. § 17.13(a) & (b). With re-
spect to fees, the applicant’s affidavit must “itemize in detail the
services performed by the date, number of hours per date, and the
services performed during those hours.” 40 C.F.R. § 17.13(b)(1).

The federal courts have also established principles for determin-
ing the reasonableness of an award of attorneys’ fees. With respect
to the hours expended, counsel for the prevailing party should not
be awarded fees for hours that are excessive, redundant, or otherwise
unnecessary. Hensley, 461 U.S. at 434; Action on Smoking and
Health, 724 F.2d at 220. Hours are not reasonably expended if an
attorney duplicates work done earlier by another attorney or if an
attorney performs tasks that are normally performed by paralegals,
clerical personnel, or other non-attorneys. Action on Smoking and
Health, 724 F.2d at 220-221. Generally, hours that are not properly
billed to one’s client are not properly billed to one’s adversary pursu-
ant to statutory authority. Hensley, 461 U.S. at 437; Action on Smok-
ing and Health, 724 F.2d at 220.

With respect to the documentation of the hours expended, an
applicant’s counsel is not required to record in great detail how each
minute of time was expended, but counsel should identify the general
subject matter of time expenditures. Hensley, 461 U.S. at 437. Docu-
mentation is sufficient if the submissions provide “fairly definite in-
formation as to the hours devoted to various general activities.” Citi-
zens Council of Delaware County v. Brinegar, 741 F.2d 584, 596
(3d Cir. 1984).

Initially, we note that the Region maintains that Biddle Sawyer
seeks to recover attorneys’ fees for work performed on matters that
are unrelated to the underlying proceeding.6’ Indeed, the billing
at pages 18 and 19 of its Answer to Biddle Sawyer’s Application for Attorney’s Fees
and Costs. See Region’s Appellate Brief, at 58.

67 The Region makes this assertion with respect to the hourly fees of Mr. Marraro,
Mr. Kornreich, and Mr. Novey. Region’s Appellate Brief, at 54-55, 57, and 61-62;
Region’s Answer to Biddle Sawyer’s Application for Attorneys’ Fees and Costs, at
18-19. Biddle Sawyer has provided no response to the Region’s assertion other than
to declare that “Biddle Sawyer provided ample documentation of the cost of defending
VOLUME 4

BIDDLE SAWYER CORPORATION 941
records submitted by Biddle Sawyer reflect that, during the course
of the underlying enforcement proceeding, Biddle Sawyer also in-
curred attorneys’ fees (and probably expenses) for matters that are
entirely unrelated to that proceeding. Under these circumstances,
when the documentation for fees and expenses reflects hours spent
on both related and unrelated matters, Biddle Sawyer must show
that each hour in its request for fees and all expenses sought are
indeed related to the underlying enforcement proceeding rather than
to an unrelated matter.®

We turn first to the hours of Mr. Marraro. The Region challenges
the description of certain hours submitted by Mr. Marraro as inad-
equately documented and/or unrelated to the underlying proceeding.©°
Many of these hours clearly concern matters which may involve Bid-
dle Sawyer but which are unrelated to the underlying enforcement
proceeding, i.e., references to “FDA-TSCA overlap,” “Letter of Com-
mencement of Mfg.,” “intermediates,” and “fee recovery from ECRA.”
The descriptions of work performed during other hours are too vague
to enable us to determine whether those hours concern a related
against EPA’s untenable application of its regulation.” Biddle Sawyer’s Appellate Reply
Brief, at 20.

68Cf, Hensley, 461 U.S. at 437 (when an applicant prevails on some claims but
not on others, the applicant should maintain billing time records in a manner that
will enable a reviewing court to identify distinct claims); Action on Smoking and
Health, 7124 F.2d at 220 (same).
The specific hours of Mr. Marraro that are challenged by the Region are summa-
rized as follows:
(1) 1.0 hours on December 26, 1989, for “Conference MRK re
Warfarin and TSCA issues re PMN and FDA overlap.”
(2) 1.5 hours on December 28, 1989, for “Conference call Chavkin
re FDA-TSCA overlap and review LT Chavkin, conference
MRK.”
(3) 0.25 on February 20, 1990, for “Tel. Conf. w/R. Chavkin re
Testing Chemical and Dye Rules.”
(4) 0.5 hours on May 16, 1990, for “Conf. w/Chavkin, conf. MRK
and tel. conf. EPA re PMN and Letter of Commencement
of Mfg.”
(5) 0.25 hours on July 3, 1990, for “Review of fax from W.
Chavkin.”
(6) 0.25 hours on July 10, 1990, for “Conf—W. Chavkin.”
(7) 0.25 hours on August 27, 1990, for “Conf. w/R. Chavkin re
intermediates.”
(8) 0.5 hours on October 30, 1990, for “Rev. billings and conf.
re Attorney fee recovery from ECRA.”
(9) 0.5 hours on November 7, 1990, for “Conf. w/Chavkin re Dec.
28 letter on intermediaries and rev. of law.”
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942 ENVIRONMENTAL ADMINISTRATIVE DECISIONS

or unrelated matter, i.e., “Review of fax” and “Conf—W. Chavkin.”7°
Despite the Region’s challenge to these hours, Biddle Sawyer has
not provided information to clarify that the challenged hours are
indeed related to the underlying proceeding. Consequently, we agree
with the Region that Biddle Sawyer has failed to show that these
hours relate to the underlying proceeding.

Next, the Region maintains that the hours of Mr. Marraro, the
attorney of record, are duplicative with the hours of Mr. Eisen, the
lead litigation attorney.7! The Region seeks a reduction in the hours
of Mr. Marraro after Mr. Eisen became involved in the case.72 As
a corollary, the Region argues that Mr. Bickerman had to report
to both Mr. Eisen and Mr. Marraro during the litigation phase, thus
duplicating hours worked.73 We agree with the ALJ that the “(ulse
of multiple counsel in complex cases is understandable and not
grounds for reducing hours because it is common in litigation to
use a team of attorneys’ to divide up the work.”74 Having reviewed
the documentation of Mr. Marraro’s hours after the point in time
that Mr. Eisen became involved in the underlying enforcement action
and having considered the complexity of the issues created by the
Region in the underlying proceeding, we conclude that Mr. Marraro’s
participation in the litigation team was not excessive or duplicative.

With respect to Ms. Eisen, the Region argues that 0.75 hours
on March 8, 1990, for “filing in NY” and 0.25 hours on April 24,
1990, for “Mary Rose re petition” are unrelated to the underlying
proceeding. Despite the Region’s challenges before the ALJ and in
this appeal to Mr. Eisen’s time, Biddle Sawyer has not offered any
further explanation of the relevance of this time to the underlying

70 As noted earlier, Wallace Chavkin is the Chief Executive Officer and Chairman
of the Board of Directors of Biddle Sawyer.

71 Among the hours challenged by the Region, the Region objects specifically to
0.5 hours recorded by Mr. Marraro and Mr. Eisen on August 8 and 9, 1990, as
unrelated to the underlying proceeding. See Answer to Biddle Sawyer’s Application,
at 19. Biddle Sawyer’s Application reflects, however, a request for only 0.25 hours
on August 8, 1990, recorded by Mr. Marraro regarding “Conf. w/ B.Eisen re call
to McCullough re Timing of Decision” and no request for hours on August 9, 1990,
recorded by Mr. Marraro. Since Ms. McCullough is the attorney for Region II respon-
sible for prosecuting the underlying proceeding, we conclude that the referenced discus-
sion between Mr. Marraro and Mr. Eisen is related to the underlying proceeding.

72The Region maintains that Mr. Marraro’s expenditure of time after Mr. Eisen
became involved in the proceeding is 27.25 hours. Region’s Appellate Brief, at 61.
It argues that a reasonable expenditure of time on the part of Mr. Marraro after
Mr. Eisen became involved should be 5.25 hours. Id.

78The Region does not specify which of Mr. Bickerman’s hours are duplicative.

74Recommended Decision, at 10.

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BIDDLE SAWYER CORPORATION 943,
proceeding. As a result, Biddle Sawyer has failed to show that this
time relates to the underlying proceeding.

With respect to Ms. Kornreich, the Region challenges the descrip-
tion of certain hours as inadequately documented and/or unrelated
to the underlying proceeding.7> The Region maintains that Ms.
Kornreich worked on TSCA and other federal laws in connection
with Biddle Sawyer’s import business and that this work was not
directly involved with the issues litigated in the underlying proceed-
ing. Clearly, the descriptions for some of the hours challenged by
the Region do not relate to the underlying proceeding.’ In light
of the fact that Ms. Kornreich performed work on unrelated matters
during this period, Biddle Sawyer had the burden of clearly establish-

7 The specific hours of Ms. Kornreich that are challenged by the Region are
summarized as follows:

(1) 15 hours spent on December 27, 1989, for “T Wallace Chavkin
about exemption from TSC inventory for chemicals used in
manufacture or pharmaceuticals. Discuss with Chris
Marraro.”

(2) 7.75 hours on December 28, 1989, for “TC W. Chavkin, H.
Zeller, C. Marraro. Research on TSCA. Prepare opinion letter
on whether pharmaceutical intermediate is subject to TSCA
requirements. Confer with C. Marraro.” (3) 4.0 hours on Janu-
ary 16, 1990, for “Telephone Chris Marraro; confer with John
Bickerman; legal research on meaning of ‘process’ for purposes
of TSCA regulations; telephone Christine McCulloch; prepare
letter to Coles Phinzy, Section Chief at Waste and Toxic Sub-
stances Section.”

(4) 15 hours on January 17, 1990, for “Confer with Bruce Eisen
and C, Marraro; research on TSCA regulations.”

(5) 3.0 hours on April 23, 1990 for “Research on significance
of concentrations of hexa- and hepta-dioxins above the LOQ.
Confer with Chris Marraro. Prepare memo.”

(6) 8.0 hours spent on April 24, 1990, to “Prepare and revise
letter to Robert Chavkin; confer with Chris Marraro. T/C to
Yves Tondeur to confirm interpretation of test data as posi-
tive; te to EPA to confirm that the molecular structure of
the heptadioxin defined as a 2,3,7,8,-HDD in TSCA section
766.3 includes a typographical error.”

(7) 0.5 hours on August 13, 1990, for “Research on TSCA regula-
tions.”

On page 19 of the Region’s Answer to Biddle Sawyer’s Application for Fees and
Costs, the Region challenges the hours of Ms. Kornreich on November 13, 1989.
The billing record at Exhibit B of the Amended Application reflects that the log
entry for November 13, 1989 was deleted and charged to another account.

76For example, the underlying proceeding did not concern activities relating to
test data or chemicals used in manufacture. Also, an opinion letter is usually written
in anticipation of action to be taken. The underlying proceeding did not require an
opinion letter.

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944 ENVIRONMENTAL ADMINISTRATIVE DECISIONS

ing which hours were related to the underlying proceeding. We con-
clude that the descriptions for the remaining hours (with the excep-
tion of the hours recorded on January 16 and 17, 1990, as discussed
below) are insufficient to show that such hours relate to the underly-
ing enforcement action and thus Biddle Sawyer has failed to meet
its burden in this regard.

On January 16, 1990, Ms. Kornreich spent 4.0 hours performing
work described as follows: “Telephone Chris Marraro; confer with
John Bickerman; legal research on meaning of ‘process’ for purposes
of TSCA regulations; telephone Christine McCulloch; prepare letter
to Coles Phinzy, Section Chief at Waste and Toxic Substances Sec-
tion.” On January 17, 1990, he spent 1.5 hours performing work
described as follows: “Confer with Bruce Eisen and C. Marraro; re-
search on TSCA regulations.” The only descriptions set forth on either
January 16 or 17 which clearly relate to the underlying proceeding
is the reference to a telephone call with the Regional Counsel pros-
ecuting the underlying enforcement action and the preparation of
a letter to Coles Phinzy. Nonetheless, we conclude that these hours
of work are related to the underlying proceeding because (1) the
records submitted by Biddle Sawyer reflect that Ms. Kornreich spent
time on the following two days, January 18 and 19, 1990, performing
work that is clearly related to the underlying proceeding77; (2) ap-
proximately two weeks after Ms. Kornreich performed this work in
mid-January 1990, the Motion for an Accelerated Decision was filed
on behalf of Biddle Sawyer; and (3) it does not appear from the
record that Ms. Kornreich performed any unrelated work for Biddle
Sawyer in January of 1990.78

With respect to Mr. Novey, the Region challenges 1.5 hours billed
on December 22 and 27, 1989, as unrelated to the underlying proceed-

77On January 18, 1990, Ms. Kornreich described a portion of his time as being
spent “prepar{ing a] memorandum on [the] conflict between [the] ‘applicability’ provi-
sion (section 766.2) and [the] ‘who must test’ provision (section 766.20).” Amended
Application, Exh. B. On January 19, 1990, Ms. Kornreich described his time as follows:

Telephone Tim Hardy (Kirkland & Ellis) concerning his cor-
respondence with EPA; review July 1987 correspondence between
Tim Hardy and Martin Halper (EPA Exposure Evaluation Divi-
sion).
Id. The referenced letter was cited in Biddle Sawyer’s Motion for an Accelerated
Decision. See Biddle Sawyer’s Motion for an Accelerated Decision, at 11-12.

78 While we have taken the liberty to draw reasonable inferences from the record,
we unequivocally reject any suggestion that the Agency has an obligation to reconstruct
the bills presented with an EAJA application. See Naporano Iron and Metal Co.
v. United States, 825 F.2d 403, 405 (Fed. Cir. 1987).

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BIDDLE SAWYER CORPORATION 945
ing.79 The documentation submitted by Biddle Sawyer for these dates
shows that Mr. Novey reviewed the file and conferred with Marraro
regarding “EPA strategy” and “the case.” While Biddle Sawyer’s ex-
planation of the time spent by Mr. Novey is abbreviated, we conclude
that the hours expended for this work relate to the underlying pro-
ceeding. In this regard, we note that the records submitted by Biddle
Sawyer do not reflect that Biddle Sawyer was defending any other
adversarial adjudication during the relevant time period. We also
note that in December 1989, the attorneys for Biddle Sawyer were
changing course from settlement negotiations to the preparation of
the Motion for an Accelerated Decision which was filed in January
1990. In these circumstances, the hours of Mr. Novey appear to
be related to the underlying proceeding.

With respect to Mr. Bickerman, the Region challenges some
hours as “inadequately documented” or as time expended on tasks

_that could have been performed by a paralegal. The Region also
challenges generally the rate at which Mr. Bickerman’s hours were
compensated. First, the Region challenges 0.5 hours recorded on Jan-
uary 16, 1990,8° for “Conversations with M.R. Kornreich and B.
Biles.” As discussed above, Ms. Kornreich’s hours relating to his
conversation with Mr. Bickerman on this date have been allowed.
Consequently, the charge for Mr. Bickerman’s end of the conversation
should also be allowed.

Next, the Region argues that the fee rate for Mr. Bickerman

should be adjusted downward because the research done by Mr.
Bickerman ® and other tasks described as “Organize pleadings” and

79The Region challenged the hours of Mr. Novey in its Answer to Biddle Sawyer’s
Application for Attorneys’ Fees and Costs and incorporated by reference that challenge
in its Appellate Brief.

0The Region referred to this entry as “January 1, 1990” but no hours were
logged by Mr. Bickerman on that date.” The hours logged on January 16, 1990 by
Mr. Bickerman appear to be the ones intended by the Region.

81Mr. Bickerman logged 58.5 hours for the following work:

1/9/90 TSCA administrative appeal—research.
V/10/90 TSCA administrative appeal—research.
21/90 Affidavit, research.
V/21/90 Affidavit, research.
1/23/90 Affidavit; research; draft motion for accelerated decision;
revise Wallace Chavkin affidavit.
2/8/90 Research and draft reply to prehearing [sic] exchange.
2/9/90 Research and draft reply to prehearing exchange.
3/27/90 Research reply to opposition for accelerated decision. O/
C with B. Eisen; P/C C. Marraro.
Continued
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946 ENVIRONMENTAL ADMINISTRATIVE DECISIONS

“Assemble and mail” 82 could have been performed by a paralegal.
The research that is challenged by the Region appears to be legal
research which clearly is a task that should be done by an attorney.
Furthermore, the tasks of organizing pleadings and assembling a
document, especially one that will be filed with an adjudicatory body,
may very well require attorney oversight. The Region’s challenges
to these hours are disallowed.

Finally, with respect to Mr. Bickerman, the Region argues that
the fee allowed by the EAJA for Mr. Bickerman’s services, which
is based on the statutory maximum of $75 per hour, should be less
than the fee allowed by the EAJA for the “more senior attorneys,”
Mr. Eisen and Mr. Marraro, which is also based on the statutory
maximum of $75 per hour. The Region reasons that since the services
of Mr. Eisen and Mr. Marraro were valued at $75 under the EAJA,
Mr. Bickerman’s services should be valued at some lesser amount.
We disagree.

The EAJA requires that the fees awarded must be based upon
prevailing market rates for the kind and quality of the services fur-
nished, except that attorney fees shall not be awarded in excess
of $75 per hour. 5 U.S.C. § 504(1)(A). Since the Region does not
argue that the rate charged by Mr. Bickerman is in excess of the
market rate, we find that the statutory rate of $75 per hour is
a reasonable rate for Mr. Bickerman’s services.8°

In accordance with our discussion above, we reduce the number
of hours for which Biddle Sawyer may recover attorneys’ fees by
a total of 26.75 hours. Since the ALJ awarded fees to Biddle Sawyer
for 375.65 hours, that amount should be reduced to 348.90.84

3/28/90 Research reply brief to opposition to accelerated decision.
3/29/90 Research and draft reply to EPA response to motion for
accelerated decision.
4/18/90 Research and draft opposition to motion to strike.
82 These entries are recorded as follows:
2/20/90 Organize pleading file.
4/16/90 Assemble and mail request for oral argument.
4/24/90 Organize files.

®3We note that the fee rates charged by Biddle Sawyer’s attorneys in this case
range between $145 per hour for Mr. Bickerman, $160 to $200 per hour for Ms.
Kornreich, $230 and $270 for Mr. Eisen, and $150 to $260 for Mr. Marraro. According
to the affidavit of Mr. Marraro, Biddle Sawyer actually paid these rates.

84The Region also argues that the ALJ did not provide a sufficient explanation
for his decision regarding the award of attorneys’ fees. We agree that the Rec-
ommended Decision could have provided more detailed explanation of the award and
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BIDDLE SAWYER CORPORATION 947

2. Expenses

Finally, the Region asserts that certain expenses awarded by
the ALJ are unreasonable. The Region argues that Biddle Sawyer
did not provide sufficiently detailed information to show that certain
expenses were necessary to the underlying proceeding and that cer-
tain expenses are excessive. The Region challenges the costs for pho-
tocopies, paralegal services, “federal express” and “messenger/courier
services,” and meals. The ALJ awarded $3,803.96 for expenses after
having deducted the expense of $25.00 for meals.85

The EAJA provides that the expenses that may be awarded in-
clude “the reasonable expenses of expert witnesses [and] the reason-
able cost of any study, analysis, engineering report, test, or project
which is found by the agency to be necessary for the preparation
of the party’s case.” See 5 U.S.C. § 504(b)(1)(A). EPA regulations re-
quire that expenses be documented in an affidavit which states “the
rate at which fees and expenses were computed” and includes “a
description of any expenses” sought. See 40 C.F.R. § 17.13(a), (b)
and (c). Costs for photocopies, express mail and paralegal services
are allowable expenses under the EAJA.®6 Generally, the documenta-
tion of expenses is sufficient if it enables the decisionmaker to deter-
mine that the expenses sought are reasonable and necessary. See
Hoopa Valley Tribe v. Watt, 569 F. Supp. 943, 948 (N.D. Cal. 1983)
(expenses were not allowed because it was impossible to determine
whether non-itemized expenses were reasonable expenses).

The Region argues that the copying costs requested by Biddle
Sawyer are excessive. The ALJ awarded costs for photocopies in the
amount of $1,102.59.87 Biddle Sawyer has not provided information
the reasons for rejecting the Region’s challenges. However, since we have undertaken
a comprehensive review as outlined in this opinion, any deficiency in the Recommended
Decision has been remedied. (We note that we have undertaken this comprehensive
analysis because this is the first EAJA case to be decided by the Board. In future
cases where the ALJ’s analysis was insufficient, we would anticipate remanding to
the ALJ for a more detailed explanation.)

5 The total expenses requested by Biddle Sawyer amount to $3,828.96.

86 See Levernier Construction, Inc. v. United States, 947 F.2d 497, 503 (Fed. Cir.
1991); Jean v. Nelson, 863 F.2d 759, 776-778 (11th Cir. 1988), affd, 496 U.S. 154
(1990); Aston v. Secretary of Health and Human Services, 808 F.2d 9, 12 (2d Cir.
1986); Int'l Woodmakers of America v. Donovan, 792 F.2d 762, 767 (9th Cir. 1985).

87 Biddle Sawyer requested total expenses in the amount of $3,828.96. To support
this request, it submitted documents representing the costs billed to Biddle Sawyer
by the law firm of Sive, Paget & Riesel and the costs billed by the law firm of
Kaye, Scholer, Fierman, Hays & Handler. The billing statement for Sive, Paget reflects

Continued
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948 ENVIRONMENTAL ADMINISTRATIVE DECISIONS

regarding the actual number of photocopies made in connection with
the underlying proceeding. Nor has it provided information bearing
on the reasonableness or necessity of the cost of photocopies. This
information is especially critical under the circumstances of this case
wherein Biddle Sawyer has submitted billing records that reflect
work was done by Biddle Sawyer’s attorneys for matters unrelated
to the underlying proceeding. As a result, it is impossible to deter-
mine whether the amount requested for photocopies is reasonable
or necessary or even related to the underlying proceeding rather
than other TSCA matters under advisement to Biddle Sawyer’s attor-
neys. Although Biddle Sawyer has failed to meet its burden to show
the amount it seeks for copying expenses is reasonable, the Region
has conceded that Biddle Sawyer should recover some amount for
copying.8° The amount conceded by the Region is $70.20. Con-
sequently, we conclude that the award for duplication expenses
should be $70.20 and therefore the award should be reduced by
$1,032.39.

Next, the Region maintains that the expense of paralegal services
should not be awarded because Biddle Sawyer has not provided infor-
mation showing the amount of paralegal time spent, the tasks as-
signed to the paralegals, or the rate charged for paralegal work.
EPA regulations require that for “services,” the applicant must sub-
mit an affidavit itemizing in detail the services performed by the
date, number of hours per date, a description of the service per-
formed, and the hourly rate charged for such services. 40 C.F.R.
§ 17.13(a) & (b)(1). While it appears that the billing record of the
law firm of Kaye, Scholer refers to the amount of paralegal time
spent and the tasks performed by such paralegals, there is no infor-
mation provided to reflect the rate charged for such paralegal work.
The bills from the law firm of Sive, Paget reflect a charge for para-
legal work but that charge did not disclose the time spent, tasks
performed, or rate charged. Despite the Region’s challenge, Biddle
Sawyer chose not to submit any information in its response to the
challenge. Since we cannot evaluate the reasonableness of this ex-
pense and the documentation does not comply with EPA regulations,
Biddle Sawyer has failed to show that the expense of paralegal serv-
ices is reasonable. Accordingly, the award of expenses should be re-
duced by $1,939.38.89
“photocopy” charges totalling $57.15. The records of Kaye, Scholer reflect “duplicating”
charges of $1,045.44. Together these copying charges equal $1,102.59.

88 Region’s Appellate Brief, at 66.

89 According to the Region, the ALJ awarded $1,939.38 to Biddle Sawyer for para-
legal services. Region’s Appellate Brief, at 67. Biddle Sawyer has not disputed this
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BIDDLE SAWYER CORPORATION 949

Next, the Region maintains federal express and “messenger/cou-
rier services” were not necessary to the underlying litigation. The
Region argues that since 40 C.F.R. § 22.05 permits service by mail,
all other delivery services are unnecessary. We conclude, however,
that use of such services is customary in today’s legal practice and
thus these expenses are reasonable and should be awarded. See Jean
v. Nelson, supra; Aston, supra.

Finally, the Region maintains that while the ALJ deleted the
cost of meals for $25.00, he should not have allowed the cost of
additional meals in the amount of $46.50. We agree.

In sum, we reduce the award of expenses to Biddle Sawyer by
$3,018.27. Since the ALJ awarded expenses in the amount of
$3,803.96, that amount should be reduced to $810.69.

III. AWARD OF FEES AND EXPENSES

Accordingly, Biddle Sawyer is entitled to attorneys’ fees and ex-
penses under the EAJA. However, the amount awarded by the ALJ
for attorneys’ fees and expenses associated with Biddle Sawyer’s de-
fense of the underlying enforcement proceeding and its preparation
of its application for fees and expenses under the EAJA is hereby
modified. Biddle Sawyer is hereby awarded fees in the amount of
$26,167.50 (for 348.90 hours at the rate of $75 per hour) and expenses
in the amount of $810.69, for a total award in the amount of
$26,978.19.

IV. FEES AND EXPENSES OF EAJA APPEAL

As noted, the amount awarded by this decision covers Biddle
Sawyer’s request for fees and expenses incurred prior to this appeal.
Biddle Sawyer has requested leave to submit a petition for attorneys’
fees incurred in connection with this appeal. The EAJA was intended
to cover the cost of all phases of agency adjudication, including the
fees and expenses incurred for successful fee adjudication. See Com-
missioner, Immigration and Naturalization Service, supra.
assertion. Biddle Sawyer’s Appellate Reply Brief, at 20-22. Nor has Biddle Sawyer
provided a figure that represents the total amount that it requests for paralegal
services. Amended Application, exh. B. Rather, Biddle Sawyer has submitted a total
request for expenses in the amount of $3,828.96 and then represented that this total
figure includes $59.50 for paralegal services at Sive, Paget and “36 hours” of paralegal
services at Kaye, Scholer. As noted, Biddle Sawyer has failed to disclose the rate
charged for paralegal services. Consequently, we accept the Region’s representation
that $1,939.38 was the amount awarded by Biddle Sawyer for paralegal services.

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950 ENVIRONMENTAL ADMINISTRATIVE DECISIONS

EPA regulations implementing the EAJA at Part 17 do not estab-
lish any specific procedures to govern the submission of a request
for fees and expenses associated with the appeal from an EAJA
award by the Presiding Officer. While the Board could remand this
issue to the ALJ,°° under the circumstances of this case, we conclude
that the determination of fees and expenses associated with this
appeal can be made most efficiently by the Board itself.

Accordingly, we conclude that since Biddle Sawyer successfully
defended the ALJ’s determination that an award was appropriate,
Biddle Sawyer is entitled to the reasonable fees and expenses associ-
ated with that defense. Biddle Sawyer is hereby granted leave to
file with this Board, within thirty days from the date of service
of this order, the supplemental documentation required to support
an increase in the award for fees and expenses. The supplemental
documentation of such fees and expenses must comply with 40 C.F.R.
§ 17.13(a)-(c). If Biddle Sawyer chooses to so file, the Region shall
have thirty days thereafter to respond to Biddle Sawyer’s request
for additional fees and expenses based upon the supplemental docu-
mentation.

So ordered.

Dissenting Opinion by Judge McCallum:

I respectfully disagree with the Board’s conclusion that a bare,
unsworn allegation in an EAJA fee application is jurisdictionally suf-
ficient to “show” the applicant’s eligibility as required by the terms
of the statute. I believe we are constrained by the statutory language,
and by the interpretive principles that are controlling in this context,
to hold that Biddle Sawyer’s original fee application was jurisdiction-
ally defective. Because it is agreed that the EAJA’s thirty-day filing
deadline represents a limitation upon this Agency’s power to award
fees to a prevailing litigant, maj. op. at 12, I would further hold
that Biddle Sawyer’s later submission of a complete, but untimely,
amended fee application was necessarily ineffective. Accordingly, for
the reasons discussed herein, I would vacate Judge Frazier’s order
awarding Biddle Sawyer its fees and expenses, and would direct
that Biddle Sawyer’s fee petition be dismissed for lack of jurisdiction.

90See 40 C.F.R. § 17.30(c), made relevant to this proceeding by 40 C.F.R. § 17.27,
which provides that the recommended decision in this proceeding will be reviewed
in accordance with the procedures set forth at Part 22.

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BIDDLE SAWYER CORPORATION 951

With respect to an adversary adjudication conducted by an agen-
cy of the Federal Government, the EAJA provides, in relevant part:

A party seeking an award of fees and other expenses

shall, within thirty days of a final disposition in the

adversary adjudication, submit to the agency an ap-

plication which shows that the party is a prevailing

party and is eligible to receive an award under this

section, and the amount sought, including an item-

ized statement from any attorney, agent, or expert

witness representing or appearing in behalf of the

party stating the actual time expended and the rate

at which fees and other expenses were computed.

The party shall also allege that the position of the

agency was not substantially justified. [5 U.S.C.

§ 504(a)(2)]
I agree with the Board that this provision affords no basis for con-
cluding that an applicant must “prove” its eligibility within thirty
days of a final disposition in its favor, if by “prove” we mean the
submission of evidence sufficient to outweigh whatever contrary evi-
dence the Government might offer when it files its answer to the
fee application. Indeed, it is difficult to imagine how an applicant
could sustain such a burden before it knows what evidence, if any,
will be offered in opposition to its claim of eligibility. For that reason,
EPA’s regulations sensibly allow for the introduction of additional
evidence and arguments if an “issue[] arising from the application,”
such as the issue of the applicant’s eligibility, remains genuinely
controverted after the principal pleadings (i.e, the application, the
answer, and any “comments” thereon) have been received. 40 C.F.R.
§ 17.25(b).

It hardly follows, however, that an EAJA fee applicant bears
no evidentiary burden at the time that it submits an application
to the adjudicative officer. I fear that today’s majority opinion, while
convincingly refuting any argument that conclusive proof of eligibility
within thirty days is a jurisdictional prerequisite for consideration
of an EAJA fee application, gives inadequate consideration to what
is truly in dispute here: the significance to be attributed to the
statutory insistence upon a timely “showing” of eligibility, as distinct
from an “allegation” of eligibility.91

°1 Thus, in my view, the majority creates an unrealistic dichotomy when it observes

that “the Agency’s regulations do not require that an applicant fully ‘prove’ rather

than merely assert eligibility within the thirty-day deadline.” Maj. op. at 15. “Fully
Continued

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952 ENVIRONMENTAL ADMINISTRATIVE DECISIONS

A requirement to “show” eligibility may not, standing alone, carry
an unmistakable implication that something more than a simple alle-
gation of eligibility is needed. But when the language “shall * * *
show[]” appears in a statutory text followed immediately by the lan-
guage “shall * * * allege,” in reference to two elements of a single
claim, it is unreasonable—and contrary to generally applicable norms
of statutory construction—to assume that the two different terms
were used inadvertently, and were not intended to impose distinct
obligations.92 That assumption is particularly unreasonable with re-
spect to terms such as “show” and “allege,” which are understood
in the context of civil and administrative procedure as being anything
but synonymous; indeed, Region II points out that Black’s Law Dic-
tionary (abridged 5th ed. 1983) defines “allegation” as an “assertion,
claim, declaration or statement of a party to an action * * * setting
out what he expects to prove” (at 38), whereas “show” is said to
mean “to make apparent or clear by evidence, to prove” (at 718
[emphasis added]).93 The distinct meaning of the two terms is further
confirmed by the passage from the EAJA’s legislative history quoted
by the Board, maj. op. at 19-20, in which the House Committee
responsible for the legislation explicitly contrasted a fee applicant’s
obligation to “make a simple allegation” (that the Government’s posi-
tion was not substantially justified) with the Government’s burden
to “make a positive showing” to the contrary. Finally, even if it
prove” and “merely assert” surely are not the only permissible interpretations of
the operative statutory term, which is to “show.”

92See United Technologies Corp. v. Occupational Safety & Health Admin., 836
F.2d 52, 53 (2d Cir. 1987) (“The use of different words in the same sentence of
the statute signals * * * that Congress intended to distinguish between [them]

• • *”).

93The Board’s opinion, in contrast, ultimately uses “show” and “allege” inter-
changeably. See maj. op. at 26 (concluding that EAJA does not “require more than
allegations to meet the applicant’s burden of going forward to show eligibility”).

94The Board’s contention that the issue of “substantial justification” is somehow
unique because it involves more than “objective facts”—and that distinct obligations
are therefore created by the terms “show” and “allege” only in connection with that
single issue—is unpersuasive. The House Report indicates that the drafters of the
EAJA legislation consciously employed two different terms and intended that they
create distinct obligations, with the “showing” requirement creating a more substantial
burden than the requirement to make a “simple allegation.” One cannot reasonably
assume that, although the two terms were meant to carry different meanings in
connection with one element of an EAJA claim, they were nonetheless meant to
be synonymous when used in connection with another element of the same claim.
The Board therefore errs when it faults Region II for purportedly failing to demonstrate
why the distinction between “show” and “allege,” concededly applicable to the second
sentence of Section 504(a)(2), should also apply to the first sentence of the statute.
Maj. op. at 20. That proposition is intuitively correct. Plainly Biddle Sawyer bears
the burden of explaining why the term “show” should be construed to mean signifi-
cantly less in sentence one than it means in sentence two.
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BIDDLE SAWYER CORPORATION 953
were genuinely uncertain whether or not a burden of “showing” re-
quires something more than a burden of “allegation,” the principle
of strict construction applicable to waivers of sovereign immunity
demands that any such uncertainty be resolved in the Government’s
favor, and that a distinction between showing and allegation be pre-
served in the implementation of the EAJA fee application process.

In my view, the Agency has correctly preserved the statutory
distinction between a “showing” and a mere “allegation” by its insist-
ence that a fee applicant’s representations as to net worth and num-
ber of employees be both “signed by the applicant” and verified “under
oath or affirmation or under penalty of perjury.” 40 C.F.R. § 17.11(f).
The Agency, in short, requires that a demonstration of the fee appli-
cant’s eligibility be offered in the form of an affidavit—a document
that constitutes evidence of eligibility, rather than a mere pleading
alleging eligibility. Absent any such evidence, it would make little
sense for the Agency to call upon the Presiding Officer to issue
“findings and conclusions” as to the applicant’s eligibility, 40 C.F.R.
§ 17.26(b), and ordinarily to do so based solely on the contents of
the fee application and the Agency’s answer, id. § 17.25(b). I am
therefore persuaded that the signature and verification requirements
of the Agency’s regulations are not waivable procedural hurdles, but
rather are essential to implement the jurisdictional provisions of the
statute that require, within thirty days of a final disposition, a “show-
ing” of the applicant’s eligibility for a fee award.

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