“SECRETARY OF LABOR,Complainant,v.ASBESTOS ABATEMENT CONSULTATIONAND ENGINEERING,Respondent.OSHRC Docket No. 87-1522_DECISION _BEFORE: FOULKE, Chairman; WISEMAN and MONTOYA, Commissioners.BY THE COMMISSION:This case is before us pursuant to an order by former Administrative LawJudge Dee C. Blythe denying as untimely an application for attorneys’fees and expenses that was filed by Asbestos Abatement Consultation andEngineering (AACE) under the Equal Access to Justice Act (EAJA), 5U.S.C. ? 504. Having reviewed the record and applicable law, wereinstate the application and remand the matter for a determination ofan appropriate fee award.I. _AACE’s Fee Application_AACE was engaged to monitor the removal of asbestos from the HighlandMall in Austin, Texas. Following an inspection of the site by theOccupational Safety and Health Administration (OSHA), AACE was cited forallegedly willfully violating three provisions of 29 C.F.R. ?1926.58.[[1\/]] OSHA proposed a total penalty in the amount of $1000.Judge Blythe vacated one item and affirmed the remaining two otheritems, but found them to be not willful. He assessed a $500 penalty forthe two violations. AACE petitioned the Commission for review of the twoitems the judge affirmed, and former Chairman Buckley directed review onthe issues raised in the petition. After AACE filed its review brief,the Secretary notified the Commission that she wished to withdraw thetwo remaining citation items being contested. The Commission issued anorder, dated February 2, 1989, permitting the withdrawal and declaringthe remainder of the judge’s decision to be a final order.In a motion dated March 6, 1989, and received by the Commission’s Dallasoffice on March 13, AACE moved, pursuant to the EAJA, for an award of$4207.34 in attorneys’ fees and costs.Under the EAJA, a private party that prevails against the FederalGovernment in an administrative adjudication (including a contest of anOSHA citation) and that meets certain limits on net worth and number ofemployees, is entitled to an award of attorneys’ fees and otherexpenses, unless the position of the government as a party to theproceeding was \”substantially justified,\” or special circumstances makean award unjust. 5 U.S.C. ?? 504(a)(1) & 504(b)(1)(B); _K.D.K. UpsetForging, Inc.,_ 12 BNA OSHC 1856, 1857, 1986 CCH OSHD ? 27,612, p.35,879 (No. 81-1932, 1986).The procedural elements necessary for a claim under the EAJA are setforth in 5 U.S.C. ? 504(a)(2), which states:A party seeking an award of fees and other expenses shall, within thirtydays of a final disposition in the adversary adjudication, submit to theagency an application which shows that the party is a prevailing partyand is eligible to receive an award under this section, and the amountsought, including an itemized statement from any attorney, agent, orexpert witness . . . . The party shall also allege that the position ofthe agency was not substantially justified.The Secretary’s answer, filed on April 12, pointed out that AACE’sapplication failed to state any facts establishing that it met the sizecriteria for an award under EAJA, as required by 5 U.S.C. ? 504(a)(2).Furthermore, the Secretary noted that AACE’s application did not containa statement that the Secretary’s position in the litigation was notsubstantially justified. These deficiencies, the Secretary argued,deprived the Commission of jurisdiction to consider the applicationbecause ? 504(a)(2) explicitly requires that this information beincluded in an application filed within the statutory thirty day period.On May 2, AACE submitted an amended application that cured the defectsin its original application. The amended application asserted that theSecretary’s position in the underlying litigation had not beensubstantially justified, as evidenced by her ultimate withdrawal of thecharges. In addition, AACE asserted that its net worth did not exceed$7,000,000 and that it did not have more than 500 employees. AACEexplained that its original application was deficient because, when itwas due, its attorney \”had been severely injured in an armed assault to[his] person and was unable to properly review said document havingmerely dictated same.\” AACE also alleged that its preparation offinancial statements at the time was further complicated by the heartattack and subsequent death of its accountant. Finally, AACE argued thatit would be fraudulent for a non-eligible party to file such a documentand therefore an eligibility statement is implicit in the applicationabsent evidence of fraudulent intent.Judge Blythe held that he had no jurisdiction to rule on the applicationbecause \”32 days elapsed between final action by the Commission and thefiling of the application for an award, whereas the EAJ Act allows only30 days.\” The thirty-two days to which the judge referred was the timeperiod between the date of the Commission’s order and the date ofmailing of AACE’s EAJA application. Because he found the application tobe untimely, Judge Blythe did not consider whether the application wasdeficient for not containing the eligibility statements.AACE filed a Petition for Discretionary Review of the judge’s order,which was granted by former Commissioner Arey. The legal issues to beaddressed on review in this action are as follows:(1)Was the application timely filed; and(2) If the application was timely, did AACE’s amended application curethe failure of the original application to contain the statutorilyrequired eligibility requirements?II. _Timeliness of the Application _A.Although it does not dispute that its application was filed thirty-twocalendar days after the date of the Commission’s order, AACE advancestwo reasons in support of its contention that its application wastimely. First, it argues that because the order was sent by mail, underRule 4(b) of the Commission’s Rules of Procedure, [[2\/]] 29 C.F.R. ?2200. 4(b), and Federal Rule of Civil Procedure 6(e),[[3\/]] three daysshould be added to the thirty day period.AACE next argues that its application was timely even if the thirty daysis measured from the date of the Commission’s order. According to AACE,under both Commission Rule 4(a)[[4\/]]. 29 C.F.R. ? 2200.4(a), andFederal Rule of Civil Procedure 6(a) [[5\/]], when a filing deadlinefalls on a Saturday, Sunday or Federal holiday, the deadline is extendedto the next Monday or Federal workday. The company points out that thethirtieth day after February 2 was March 4, a Saturday, and that itsapplication was mailed on the following Monday. Therefore, it contendsthat March 4 and March 5 should be excluded from the count.B.The thirty day period for filing an EAJA application is jurisdictionaland cannot be extended or waived by a court or agency rule. _Long IslandRadio Co. v. NLRB,_ 841 F.2d 474 (2d Cir, 1988); _J.M.T. Machine Co. v.United States_, 826 F.2d 1042 (Fed. Cir. 1987); _Columbia ManufacturingCorp. v. NLRB,_ 715 F.2d 1409 (9th Cir. 1983). _See also Action onSmoking & Health v. CAB_, 724 F.2d. 211 (D.C. Cir. 1984) (thirty dayperiod for filing EAJA application under 28 U.S.C. ? 2412 (d)(1)(B) , aprovision similar to 5 U.S.C. ? 504 (a)(2), is jurisdictional);_Sonicraft, Inc. v. NLRB,_ 814 F.2d 385 (7th Cir. 1987) (thirty dayperiod for appealing denial of EAJA award is jurisdictional).The courts have also held that the thirty day filing period begins torun from the time a final decision is issued by the court or agency,rather than when it is received by the parties, and that the filingoccurs, not when the petition for fees is mailed, but only when it isreceived by the court or agency. _Adam Sommerrock Holzbau, GMBH v.United States_, 866 F.2d 427 (Fed. Cir. 1989) _Sonicraft, Inc. v. NLRB,_814 F.2d at 386-7; _Monark Boat Co. v. NLRB, _708 F.2d 1322, 1328-9 (8thCir. 1983). Similarly, those courts that have considered the issue haveheld that the thirty day filing deadline cannot be extended by agencyrules allowing time for mailing. _Sonicraft, Inc. v. NLRB_, _id_.;_Monark Boat Co. v. NLRB, id.; Sargent v. Secretary of Health and HumanServices_, 739 F. Supp. 1067 (D.S.C. 1990). Therefore, contrary to theapplicant’s contention, it cannot rely on either Commission Rule 4(b) orFederal Rule of Civil Procedure 6(e), which add three days to filingdeadlines to allow for mailing, to extend the jurisdictional time limitsimposed by the EAJA.The Commission’s order was issued February 2. The judge, assuming thatthe jurisdictional time limit for filing an EAJA application iscalculated from the time the Commission issues its decision, properlycalculated the thirtieth day after February 2 to be Saturday, March 4.When, however, the thirtieth day falls on a weekend, the jurisdictionallimit will not be held to have expired until the following Monday.[[6\/]]Therefore, Commission Rule 4(a) would apply (although, even without theCommission rule, the deadline would probably not fall until Monday).Accordingly, if we accept the judge’s premise that the date of theCommission’s final order is to be determined from the date of its order,the thirtieth and last day for the fee application to be filed wouldhave been Monday, March 6. AACE’s application is dated March 6, and thecertificate of service gives March 6 as the date it was mailed. Asnoted, however, filing for purposes of the EAJA is the date received.The application was received by the OSHRC Dallas office on March 13.Following this approach, therefore, we would have to hold that theapplication was not timely.Contrary to the judge’s assumption, however, we conclude that the timefor filing an EAJA application begins to run, not from the date adecision is issued, but rather from the date the agency makes its \”finaldisposition in the adversary adjudication.\” 5 U.S.C. ? 504(a)(2).For purposes, of the EAJA, a case is usually deemed to be final when ithas met its final demise: when there is nothing further the party can doto give it life. _See James v. United States Department of Housing andUrban Development,_ 783 F.2d 997, 999 (11th Cir. 1986). Under section10(c) of the Occupational Safety and Health Act, Commission orders donot become final until thirty days after issuance. [[7\/]] _SeeInternational Union, United Automobile, Aerospace & AgriculturalImplement Workers of America (UAW) v. OSHRC,_ 557 F.2d 607, 611 n.10(7th (Cir. 1977). This thirty day review period has been interpreted asa period in which the Commission may reconsider its order. _Brennan v.OSHRC & S.J. Otinger, Jr., Construction Co_., 502 F.2d 30 (5th Cir. 1974).Moreover, in its rules implementing the EAJA, the Commission hasrecognized that the jurisdictional period for filing an EAJA applicationdoes not begin to run until its orders are final, within the meaning ofsection 10(c) of the Act. Commission EAJA Rule 302, 29 C.F.R. ? 2204.302provides:_When an application may be filed._(a) An application may be filed whenever an applicant has prevailed in aproceeding or in a discrete substantive portion of the proceeding, butin no case later than thirty days after the commission’s finaldisposition of the proceeding.* * *(d) For purposes of this section, the date of final disposition is:* * *(2) The date on which the order of the Commission affirming, modifying,or vacating the Secretary’s citation or proposed penalty or directingother appropriate relief becomes final under section 10(c) of the OSHAct, 29 U.S.C. 659(c).That the proceedings in this case terminated as a result of theSecretary’s withdrawal of the citation does not mandate a differentresult. While, generally, the Secretary has discretion to withdraw orsettle citations, the Commission retains the authority to ensure thatvarious legal and procedural requirements are met. _See General ElectricCo_., 14 BNA OSHC 1763, 1990 CCH OSHD ? 29,072 (No. 88-2265, 1990).Until the entry of a Commission order approving the settlement orwithdrawal and terminating the proceedings before the Commission, anemployer cannot know with certainty that the Secretary’s action willconstitute the final Commission determination. Similarly, until theCommission order becomes final under section 10(c) of the Act, thepossibility remains that the Secretary may determine that the settlementor withdrawal was improvident and should be withdrawn. As long as thereis a technical possibility that further Commission action may occur, theemployer cannot be certain that the Commission has entered a \”finaldetermination\” of the matter. _Cf_. _City of Brunswick, Georgia v.United States_, 661 F. Supp. 1431 (S.D. Georgia, 1987), _rev’d on othergrounds_, 849 F.2d 501 (11th Cir. 1988), _cert. denied_, 109 S. Ct. 1313(1989). (For purpose of that portion of the EAJA applicable to thejudiciary, even where the Government withdraws its action, as long as anappeal is a technical possibility, the thirty day period for filing anEAJA application does not begin until expiration of the appeal period.)Moreover, to use different criteria for determining the start of thethirty day period for filing EAJA applications, depending on the type ofCommission final order that is involved, would only serve to confusepotential applicants. The thirty day filing period for EAJAapplications was not intended to become a trap for the unwary. _Meyersv. Sullivan, _916 F.2d 659, 668 (11th Cir. 1990); _James v. UnitedStates Department of Housing and Urban Development,_ _id._Therefore, we hold that, given the language of section 10(c) of the Act,Commission orders do not become \”final agency dispositions,\” and thatthe time period, under 5 U.S.C. ? 504(a)(2), for filing EAJAapplications, does not begin to run, until thirty days after theCommission issues its order disposing of the case. The Commissionorder here was issued on February 2, 1989, and was not a final orderuntil March 4. The time for filing an EAJA application therefore expiredon April 3, 1989. Accordingly, the application, received by theCommission on March 13, 1989, was timely.III. _Amendment of the Application_As noted earlier, Judge Blythe found that AACE’s application failed tomeet the criteria set forth in 5 U.S.C. ? 504(a)(2), because it failedto allege that the Secretary’s position in the litigation was notsubstantially justifies and also failed to set forth facts to establishits financial eligibility for a fee award under the EAJA. AACE submittedan amended application that cured the defects in its originalapplication on May 2, after the expiration of the thirty day period forfiling applications.The Secretary contends that, as a statute that surrenders part of theUnited States’ sovereign immunity, the EAJA must be strictly construedto permit recovery only under the limits it sets forth. _E.g._ , _In rePerry_, 882 F.2d 534 (1st Cir. 1989). The Secretary argues that becauseeach of the requirements of 5 U.S.C. ? 504(a)(2) are jurisdictional,they must all be fulfilled for the Commission to have jurisdiction overthe application. AACE failed to file a timely application that fulfilledall of the requirements of ? 504(a)(2). Consequently, the Secretarycontends, the Commission lacks jurisdiction to consider the application.In order to determine whether the Commission has jurisdiction over thisapplication, we must first examine the intent of Congress. _Dunn v.United States_, 775 F.2d 99, 103 (3d Cir. 1985). In _Dunn_, the ThirdCircuit concluded that, except for the time limit for filing EAJAapplications, Congress did not intend the requirements set forth in 28U.S.C. ? 2412.(d)(1)(B)[[8\/]] to be jurisdictional. In that case, thedistrict court had found the EAJA application to be insufficient becauseit did not specify the amount of fees sought and did not contain anitemized statement of hours and expenses. Although these deficiencieswere cured by filings after the expiration of the thirty day period, thedistrict court dismissed the application, holding that the failure tofile an adequate application within thirty days deprived it ofjurisdiction to award fees.In reversing the district court’s decision, the Third Circuit noted thatthe statutory requirements of ? 2412 (d)(1)(B) contain both a time limitand standards for pleading, and that these two types of requirementsserve different purposes.[A timely application] is required in most situations in the interest offinality and reliance. But once the claim is filed, whether or not it isas complete as it should be, the interests of proof of timeliness and offinality and reliance have been satisfied. What remains is the fleshingout of the details, and the government has pointed out no governmentalinterest which is in any way affected by the fact that the details ofthe fee claim came shortly after the claim was filed.775 F.2d at 103-04. The court found that Congress was aware of thedifferent purposes served by a timely filing requirement and arequirement setting forth standards for pleading, and did not intend forthe latter to be \”jurisdictional.\” Id. at 104. Therefore, the courtconcluded, a deficient application could be amended to fulfill therequirements of 28 U.S.C. ? 2412(d)(1)(B) after the time for filing anEAJA application had passed.In _Lee v. Johnson_, 799 F.2d 31, 35-6 n.4 (3d Cir. 1986), the ThirdCircuit decided the precise issue presented here, although again in thecontext of interpreting 28 U.S.C. ? 2412(d), rather than 5 U.S.C. ? 504.Citing _Dunn_, the court said that an EAJA application could be amendedto cure a missing net worth statement. Similarly, in _City of Brunswick,Georgia v. United States_, 661 F. Supp. at 1439, the court held thatonce an EAJA application is timely filed, a supplemental filing ispermitted to itemize attorney expenses and to allege that the positionof the United States was not substantially justified.Other courts, however, have gone the other way. In _Olson v. Norman_,830 F.2d 811 (8th Cir. 1987), the court, relying on the principle thatwaivers of sovereign immunity are strictly construed, held that an EAJAapplication that failed to allege that the position of the United Stateswas not substantially justified, failed to meet jurisdictionalrequirements and could not be supplemented. Furthermore, in _U.S. v.Hopkins Dodge Sales, Inc._, 707 F. Supp. 1078 (D.Minn. 1989), the courtrejected the holding of Dunn and held that it lacked jurisdiction overan application which omitted statutorily required information.We conclude that the Third Circuit’s decision in _Dunn_ is the betterapproach. We adopt this approach because, in our view, it is moreconsistent with the intent of Congress in passing the EAJA, tocompensate small employers for the legal costs incurred in defendingthemselves against unwarranted Government action. We find it unlikelythat Congress would put up jurisdictional barriers in the form of rigidprocedural requirements that would most often hamper the ability ofsmall employers to avail themselves of the remedy. Congress neverintended the EAJA’s jurisdictional requirements to be \”a trap for theunwary.\” _Myers v. Sullivan_, 916 F.2d at 668; _James v. HUD,_ 783 F.2dat 999. Therefore, we agree with the rationale set forth in _Dunn_, andconclude that, except for the time limit for filing the application,Congress did not intend to make ? 504(a)(2) an inflexible jurisdictionalprerequisite, but intended instead to set forth a standard of pleadingthat could be met by amendment after the filing of a timely application.Moreover, although statutory time limits are often held to bejurisdictional, the liberal approach taken to amendment of pleadings,which is based on the objective that cases should be decided on theirmerits rather than on technicalities, generally permits pleadings thatare timely filed to be amended after the time for filing has passed.Thus, in _Oil, Chemical & Atomic Workers International Union v. OSHRC(American Cyanamid Co.)_, 671 F.2d 643 (D.C. Cir. 1982), _cert_._denied_, 103 S. Ct. 206 (1982), the court held that the sixty dayperiod for filing an appeal of an Occupational Safety and Health ReviewCommission decision was jurisdictional, but that the petition could beamended outside the sixty day period to name the proper respondent tothe appeal.Finally, a timely application adequately puts the Government on noticethat fees are being sought. Once such notification has been made,allowing an amendment does not prejudice the Government in any manner.Congress enacted the EAJA in order to allow small businesses anopportunity to recover the costs of defending themselves againstunwarranted Government action. In our view, allowing a defective buttimely EAJA application to be amended best serves the intent of Congress.IV. _Conclusion and Order_For the reasons stated above, we find that the judge erred in denying asuntimely AACE’s application for recovery of its fees and expenses underthe EAJA. We also find that the May 2, 1989 supplemental filing couldand did amend the initial application and that, as amended, theapplication fulfilled the requirements of 5 U.S.C. ? 504(a)(2).Because the judge vacated the application as untimely, he did notconsider the Secretary’s objections to certain fees and expenses claimedby AACE. Accordingly, we remand the matter to the Chief Judge forreassignment to another administrative law judge [[9\/]] to determine theproper amount of the award.Accordingly, it is ORDERED that the judge’s decision is reversed andthat the Respondent’s application for fees and expenses under the EAJAis both timely and valid. The matter is remanded to the Chief Judge forfurther proceedings consistent with this opinion.Edwin G. Foulke, Jr.ChairmanDonald G.WisemanCommissionerVelma MontoyaCommissionerDated: SEP 11,1991————————————————————————ASBESTOS ABATEMENTCONSULTATION &ENGINEERING ASSOCIATES,Petitioner,vSECRETARY OF LABOR,Respondent.OSHRC DOCKET NO. 87-1522_DECISION AND ORDER_Appearances:Jack Powasnik, Esq., Office of the Solicitor, Department of Labor,Washington, D. C., for Respondent.B. Harrison Moore, Legal Affairs Coordinator, Hainesport, New Jersey,for Petitioner.STATEMENT OF THE CASEBLYTHE, Judge:This case is before the Occupational Safety and Health Review Commission(\”the Commission\”) under the Equal Access to Justice Act (\”EAJ Act\”), 5U.S.C. 504, and was brought against the Secretary of Labor (\”theSecretary\”) by Asbestos Abatement, Consultation & Engineering Associates(\”petitioner\” or \”applicant\”) for fees and expenses incurred in aproceeding under the Occupational Safety and Health Act of 1970, 29U.S.C. ?? 651-678 (\”OSH Act\”) The Occupational Safety and HealthAdministration (\”OSHA\”) issued one citation to petitioner alleging threewillful violations of ? 5(a)(2) of the OSH Act and proposing penaltiestotaling $8,000. Petitioner filed notice of contest, after which theSecretary filed a complaint and Petitioner filed an answer. After ahearing, the undersigned found two violations (amending thecharacterization to \”other than serious\” and reducing the proposedpenalties to $500.Petitioner petitioned the Commission for discretionary review, as tosubitems (b) and (c) of the citation, which had been affirmed. TheSecretary simultaneously filed objections to the petition for review anda motion to retract the order directing review. The motion was denied.The Secretary then filed a notice to withdraw subitems (b) and (c). TheCommission construed this notice as a motion and granted it February 2,1989, while affirming the judge’s order insofar as it vacated subitem (a).Petitioner on March 6, 1989, filed an application for an award of feesand expenses under the EAJ Act. The Secretary filed an answer and briefin opposition to the application on April 12, 1989, and Petitioner filedan undated amended application (certified to have been mailed \”May _,1989\”). The Secretary elected to stand on her original brief,supplemented in part by a letter dated May 18, 1989. The case wasassigned to the undersigned for decision on March 10, 1989.JURISDICTIONThe first, and decisive, issue in this case is whether the Commissionhas jurisdiction, and this depends on whether the application was timelyfiled. Unfortunately, it was not; 32 days elapsed between final actionby the Commission and the filing of the application for an award,whereas the EAJ Act allows only 30 days.The EAJ Act provides, in 5 U.S.C. 504(a)(2):\”A party seeking an award of fees and other expenses shall, _withinthirty days_ of a final disposition in the adversary adjudication,submit to the agency an application…\” (Emphasis supplied.) The courtsof appeals have uniformly held this provision of the EAJ Act and similarprovisions in other statutes to be jurisdictional and must be construedstrictly. _E.g_., _Long Island Radio Co. v. NLRB_, 841 F.2d 474 (2ndCir. 1988); _Clifton v, Heckler_, 755 F.2d 1138 (5th Cir. 1985);_Columbia Mfg. Co. v. NLRB,_ 715 F.2d 1409 (9th Cir. 1983).The rationale for strict construction is well stated in _Long IslandRadio_ as follows:It is well established that \”[t]he United States, as sovereign, isimmune from suit save as it consents to be sued….\” _United States v.Sherwood_, 312 U.S. 584, 586, 61 S.Ct. 767, 769, 85 L.Ed. 1058 (1941).\”[T]he terms of its consent to be sued in any court define that court’sjurisdiction to entertain the suit.\” _Id_. Any waiver of thegovernment’s sovereign immunity is to be strictly construed in favor ofthe government. _See Library of Congress v. Shaw_, 478 U.S. 310, 106S.Ct. 2957, 2963-65, 92 L.Ed.2d 250 (1986); _Ruckelshaus v. SierraClub_, 463 U.S. 680, 685, 103 S.Ct. 3274, 3277, 77 L.Ed.2d 938 (1983);_McMahon v. United States_, 342 U.S. 25, 27, 72 S.Ct. 17, 19, 96 L.Ed.26 (1951).Since jurisdiction to entertain a claim against the United States existsonly as Congress has granted it, neither an agency nor a court has thepower to entertain claims that do not meet the conditions limiting thewaiver of immunity. Where a statute authorizing a claim against theUnited States contains time limits for filing the claim, those limitsset the temporal boundaries of the consent to be sued; they grant thetribunal in which the claim is to be filed jurisdiction to entertainonly those claims that are filed within the time allowed by the statute._See,_ _e.g._, _Diliberti v. United States, _817 F.2d 1259, 1261-62 (7thCir. 1987) (action to enforce rights under Freedom of Information Act, 5U.S.C. ? 552a(g)(5) (1982); _Leonhard v. United States,_ 633 F.2d 599,624 (2d Cir. 1980) (suit under Federal Tort Claims Act, 28 U.S.C. ?2401(b) (1982)), _cert. denied_, 451 U.S. 908, 101 S.Ct. 1975, 68L.Ed.2d 295 (1981). As stated in _Simon v. United States_, 244 F.2d 703,705 (5th Cir. 1957), such a time limit is an \”enabling statute,evidencing a consent to be sued and fixing the time for suing [; it] isnot a statute of limitation but a statute granting for a limited timethe right of action afforded.\”The Commission has adopted Rules of Procedure to implement the EAJ Act,and Rule 302(a), 29 C.F.R. 2204.302(a), provides that the 30-day periodfor filing EAJ Act applications ends \”thirty days after the Commission’sfinal disposition of the proceeding.\” Here the granting of theSecretary’s motion to withdraw two subitems of the citation andaffirming the judge’s order vacating the third subitem was a \”finaldisposition.\” It was wholly favorable to the applicant, and it wasalready too late for the Secretary to seek review of the vacated item.It is, therefore, ORDERED that the petitioner’s application for fees andexpenses under the EAJ Act is DENIED.[[1]]DEE C. BLYTHEAdministrative Law JudgeDate: July 12, 1989FOOTNOTES:[[1\/]] The asbestos standard governing construction work, 29 C.F.R. ?1926.58, contains requirements for monitoring the airborne asbestos atworksites where asbestos is being removed.[[2\/]] Commission Rule 4(b) states in pertinent part:Where service of a document, other than a petition for discretionaryreview, is made by mail pursuant to ? 2200.7, three days shall be addedto the prescribed period for the filing of a response.[[3\/]] Rule 6(e) of the Federal Rules of Civil Procedure provides:Whenever a party has the right or is required to do some act or takesome proceedings within a prescribed period after the service of anotice or other paper upon the party and the notice or paper is servedupon the party by mail, 3 days shall be added to the prescribed period.[[4\/]] Commission Rule 4(a) provides in pertinent part:In computing any period of time prescribed or allowed in these rules,the day from which the designated period begins to run shall not beincluded. The last day of the period so computed shall be includedunless it is Saturday, Sunday or Federal holiday.[[5\/]] Federal Rule of Civil Procedure 6(a) provides:In computing any period of time prescribed by these rules, by the localrules of any district court, by order of court, or by any applicablestatute, the day of the act, event, or default from which the designatedperiod of time begins to run shall not be included. The last day of theperiod so computed shall be included, unless it is a Saturday,a Sundayor a legal holiday….in which event the period runs until the end ofthe next day which is not one of the aforementioned days.[[6\/]] One court has, in dictum, stated that Fed. R. App. P. 26(a) wouldapply to a filing under another provision of the EAJA. _Action onSmoking & Health v. CAB,_ 724 F.2d 211, 225 n. 72 (D.C. Cir. 1984). Fed.R. Civ. P. 6(a) and Fed. R. App. P. 26(a) both exclude Saturday, Sunday,and federal holidays if they would be the last day of the filing period.This allowance stems from common-law practice, and has become recognizedby long established legal and commercial tradition. _Sherwood Brothers,Inc. v. District of Columbia,_ 113 F.2d 162, 163-4 (D.C. Cir. 1940).[[7\/]] Section 10(c) states in relevant part:The Commission shall thereafter issue an order, based on findings offact, affirming, modifying, or vacating the Secretary’s citation orproposed penalty, or directing other appropriate relief, and such ordershall become final thirty days after its issuance.[[8\/]] 28 U.S.C. ? 2412(d)(1)(B) is applicable to EAJA applicationsfiled before the courts and is the substantive equivalent of 5 U.S.C. ?504(a)(2).[[9\/]] Unfortunately, Judge Blythe passed away while this matter waspending before the Commission.[[1]] It should be noted that the application has several otherdeficiencies which would greatly reduce the amount of any award if theCommission had jurisdiction. However, it would be fruitless to explorethese deficiencies.”