“Docket No. 87-1522 SECRETARY OF LABOR,Complainant,v.ASBESTOS ABATEMENT CONSULTATIONAND ENGINEERING,Respondent.OSHRC Docket No. 87-1522DECISION BEFORE: FOULKE, Chairman; WISEMAN and MONTOYA,Commissioners.BY THE COMMISSION:This case is before us pursuant to an order by formerAdministrative Law Judge Dee C. Blythe denying as untimely an application for attorneys’fees and expenses that was filed by Asbestos Abatement Consultation and Engineering (AACE)under the Equal Access to Justice Act (EAJA), 5 U.S.C. ? 504. Having reviewed the recordand applicable law, we reinstate the application and remand the matter for a determinationof an appropriate fee award.I. AACE’s Fee ApplicationAACE was engaged to monitor the removal of asbestosfrom the Highland Mall in Austin, Texas. Following an inspection of the site by theOccupational Safety and Health Administration (OSHA), AACE was cited for allegedlywillfully violating three provisions of 29 C.F.R. ? 1926.58.[[1\/]] OSHA proposed a totalpenalty in the amount of $1000. Judge Blythe vacated one item and affirmed the remainingtwo other items, but found them to be not willful. He assessed a $500 penalty for the twoviolations. AACE petitioned the Commission for review of the two items the judge affirmed,and former Chairman Buckley directed review on the issues raised in the petition. AfterAACE filed its review brief, the Secretary notified the Commission that she wished towithdraw the two remaining citation items being contested. The Commission issued an order,dated February 2, 1989, permitting the withdrawal and declaring the remainder of thejudge’s decision to be a final order.In a motion dated March 6, 1989, and received by theCommission’s Dallas office 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 againstthe Federal Government in an administrative adjudication (including a contest of an OSHAcitation) and that meets certain limits on net worth and number of employees, is entitledto an award of attorneys’ fees and other expenses, unless the position of the governmentas a party to the proceeding was \”substantially justified,\” or specialcircumstances make an award unjust. 5 U.S.C. ?? 504(a)(1) & 504(b)(1)(B); K.D.K.Upset Forging, 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 underthe EAJA are set forth in 5 U.S.C. ? 504(a)(2), which states:A party seeking an award of fees and other expensesshall, within thirty days of a final disposition in the adversary adjudication, submit tothe agency an application which shows that the party is a prevailing party and is eligibleto receive an award under this section, and the amount sought, including an itemizedstatement from any attorney, agent, or expert witness . . . . The party shall also allegethat the position of the agency was not substantially justified.The Secretary’s answer, filed on April 12, pointedout that AACE’s application 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, theSecretary noted that AACE’s application did not contain a statement that the Secretary’sposition in the litigation was not substantially justified. These deficiencies, theSecretary argued, deprived the Commission of jurisdiction to consider the applicationbecause ? 504(a)(2) explicitly requires that this information be included in anapplication filed within the statutory thirty day period.On May 2, AACE submitted an amended application thatcured the defects in its original application. The amended application asserted that theSecretary’s position in the underlying litigation had not been substantially justified, asevidenced by her ultimate withdrawal of the charges. In addition, AACE asserted that itsnet 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 it was due, itsattorney \”had been severely injured in an armed assault to [his] person and wasunable to properly review said document having merely dictated same.\” AACE alsoalleged that its preparation of financial statements at the time was further complicatedby the heart attack and subsequent death of its accountant. Finally, AACE argued that itwould be fraudulent for a non-eligible party to file such a document and therefore aneligibility statement is implicit in the application absent evidence of fraudulent intent.Judge Blythe held that he had no jurisdiction to ruleon the application because \”32 days elapsed between final action by the Commissionand the filing of the application for an award, whereas the EAJ Act allows only 30days.\” The thirty-two days to which the judge referred was the time period betweenthe date of the Commission’s order and the date of mailing of AACE’s EAJA application.Because he found the application to be untimely, Judge Blythe did not consider whether theapplication was deficient for not containing the eligibility statements.AACE filed a Petition for Discretionary Review of thejudge’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 cure the failure of theoriginal application to contain the statutorily required eligibility requirements?II. Timeliness of the Application A. Although it does not dispute that its application wasfiled thirty-two calendar days after the date of the Commission’s order, AACE advances tworeasons in support of its contention that its application was timely. First, it arguesthat because the order was sent by mail, under Rule 4(b) of the Commission’s Rules ofProcedure, [[2\/]] 29 C.F.R. ? 2200. 4(b), and Federal Rule of Civil Procedure 6(e),[[3\/]]three days should be added to the thirty day period.AACE next argues that its application was timely evenif the thirty days is 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), and Federal Rule of CivilProcedure 6(a) [[5\/]], when a filing deadline falls on a Saturday, Sunday or Federalholiday, the deadline is extended to the next Monday or Federal workday. The companypoints out that the thirtieth day after February 2 was March 4, a Saturday, and that itsapplication was mailed on the following Monday. Therefore, it contends that March 4 andMarch 5 should be excluded from the count.B.The thirty day period for filing an EAJA applicationis jurisdictional and cannot be extended or waived by a court or agency rule. LongIsland Radio Co. v. NLRB, 841 F.2d 474 (2d Cir, 1988); J.M.T. Machine Co. v. UnitedStates, 826 F.2d 1042 (Fed. Cir. 1987); Columbia Manufacturing Corp. v. NLRB,715 F.2d 1409 (9th Cir. 1983). See also Action on Smoking & Health v. CAB, 724F.2d. 211 (D.C. Cir. 1984) (thirty day period for filing EAJA application under 28 U.S.C.? 2412 (d)(1)(B) , a provision similar to 5 U.S.C. ? 504 (a)(2), is jurisdictional); Sonicraft,Inc. v. NLRB, 814 F.2d 385 (7th Cir. 1987) (thirty day period for appealing denial ofEAJA award is jurisdictional).The courts have also held that the thirty day filingperiod begins to run 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 filing occurs, not when thepetition for fees is mailed, but only when it is received by the court or agency. AdamSommerrock 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(8th Cir. 1983). Similarly, those courts that have considered the issue have held that thethirty day filing deadline cannot be extended by agency rules allowing time for mailing. Sonicraft,Inc. v. NLRB, id.; Monark Boat Co. v. NLRB, id.; Sargent v. Secretary ofHealth and Human Services, 739 F. Supp. 1067 (D.S.C. 1990). Therefore, contrary to theapplicant’s contention, it cannot rely on either Commission Rule 4(b) or Federal Rule ofCivil Procedure 6(e), which add three days to filing deadlines to allow for mailing, toextend the jurisdictional time limits imposed by the EAJA.The Commission’s order was issued February 2. Thejudge, assuming that the jurisdictional time limit for filing an EAJA application iscalculated from the time the Commission issues its decision, properly calculated thethirtieth day after February 2 to be Saturday, March 4. When, however, the thirtieth dayfalls on a weekend, the jurisdictional limit will not be held to have expired until thefollowing Monday.[[6\/]] Therefore, Commission Rule 4(a) would apply (although, evenwithout the Commission rule, the deadline would probably not fall until Monday).Accordingly, if we accept the judge’s premise that the date of the Commission’s finalorder is to be determined from the date of its order, the thirtieth and last day for thefee application to be filed would have been Monday, March 6. AACE’s application is datedMarch 6, and the certificate of service gives March 6 as the date it was mailed. As noted,however, filing for purposes of the EAJA is the date received. The application wasreceived by the OSHRC Dallas office on March 13. Following this approach, therefore, wewould have to hold that the application was not timely.Contrary to the judge’s assumption, however, weconclude that the time for filing an EAJA application begins to run, not from the date adecision is issued, but rather from the date the agency makes its \”final dispositionin the adversary adjudication.\” 5 U.S.C. ? 504(a)(2).For purposes, of the EAJA, a case is usually deemedto be final when it has met its final demise: when there is nothing further the party cando to give it life. See James v. United States Department of Housing and UrbanDevelopment, 783 F.2d 997, 999 (11th Cir. 1986). Under section 10(c) of theOccupational Safety and Health Act, Commission orders do not become final until thirtydays after issuance. [[7\/]] See International Union, United Automobile, Aerospace &Agricultural Implement Workers of America (UAW) v. OSHRC, 557 F.2d 607, 611 n.10 (7th(Cir. 1977). This thirty day review period has been interpreted as a period in which theCommission 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, theCommission has recognized that the jurisdictional period for filing an EAJA applicationdoes not begin to run until its orders are final, within the meaning of section 10(c) ofthe Act. Commission EAJA Rule 302, 29 C.F.R. ? 2204.302 provides:When an application may be filed.(a) An application may be filed whenever an applicant has prevailed in a proceedingor in a discrete substantive portion of the proceeding, but in no case later than thirtydays after the commission’s final disposition 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 theSecretary’s citation or proposed penalty or directing other appropriate relief becomesfinal under section 10(c) of the OSH Act, 29 U.S.C. 659(c).That the proceedings in this case terminated as aresult of the Secretary’s withdrawal of the citation does not mandate a different result.While, generally, the Secretary has discretion to withdraw or settle citations, theCommission retains the authority to ensure that various legal and procedural requirementsare met. See General Electric Co., 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, an employer cannot knowwith certainty that the Secretary’s action will constitute the final Commissiondetermination. Similarly, until the Commission order becomes final under section 10(c) ofthe Act, the possibility remains that the Secretary may determine that the settlement orwithdrawal was improvident and should be withdrawn. As long as there is a technicalpossibility that further Commission action may occur, the employer cannot be certain thatthe Commission has entered a \”final determination\” of the matter. Cf. Cityof Brunswick, Georgia v. United States, 661 F. Supp. 1431 (S.D. Georgia, 1987), rev’don other grounds, 849 F.2d 501 (11th Cir. 1988), cert. denied, 109 S. Ct. 1313(1989). (For purpose of that portion of the EAJA applicable to the judiciary, even wherethe Government withdraws its action, as long as an appeal is a technical possibility, thethirty day period for filing an EAJA application does not begin until expiration of theappeal period.)Moreover, to use different criteria for determiningthe start of the thirty day period for filing EAJA applications, depending on the type ofCommission final order that is involved, would only serve to confuse potentialapplicants.\u00a0 The thirty day filing period for EAJA applications was not intended tobecome a trap for the unwary.\u00a0 Meyers v. Sullivan, 916 F.2d 659, 668 (11thCir. 1990); James v. United States Department of Housing and Urban Development, id.Therefore, we hold that, given the language ofsection 10(c) of the Act, Commission orders do not become \”final agencydispositions,\” and that the time period, under 5 U.S.C. ? 504(a)(2), for filing EAJAapplications, does not begin to run, until thirty days after the Commission issues itsorder disposing of the case. \u00a0 The Commission order here was issued on February 2,1989, and was not a final order until March 4. The time for filing an EAJA applicationtherefore expired on April 3, 1989. \u00a0 Accordingly, the application, received by theCommission on March 13, 1989, was timely.III.\u00a0 Amendment of the ApplicationAs noted earlier, Judge Blythe found that AACE’sapplication failed to meet the criteria set forth in 5 U.S.C. ? 504(a)(2), because itfailed to allege that the Secretary’s position in the litigation was not substantiallyjustifies and also failed to set forth facts to establish its financial eligibility for afee award under the EAJA. AACE submitted an amended application that cured the defects inits original application on May 2, after the expiration of the thirty day period forfiling applications.The Secretary contends that, as a statute thatsurrenders part of the United States’ sovereign immunity, the EAJA must be strictlyconstrued to permit recovery only under the limits it sets forth. E.g. , In rePerry, 882 F.2d 534 (1st Cir. 1989). The Secretary argues that because each of therequirements of 5 U.S.C. ? 504(a)(2) are jurisdictional, they must all be fulfilled forthe Commission to have jurisdiction over the application. AACE failed to file a timelyapplication that fulfilled all of the requirements of ? 504(a)(2). Consequently, theSecretary contends, the Commission lacks jurisdiction to consider the application.In order to determine whether the Commission hasjurisdiction over this application, we must first examine the intent of Congress. Dunnv. United States, 775 F.2d 99, 103 (3d Cir. 1985). In Dunn, the Third Circuitconcluded that, except for the time limit for filing EAJA applications, Congress did notintend the requirements set forth in 28 U.S.C. ? 2412.(d)(1)(B)[[8\/]] to bejurisdictional. In that case, the district court had found the EAJA application to beinsufficient because it did not specify the amount of fees sought and did not contain anitemized statement of hours and expenses. Although these deficiencies were cured byfilings after the expiration of the thirty day period, the district court dismissed theapplication, holding that the failure to file an adequate application within thirty daysdeprived it of jurisdiction to award fees.In reversing the district court’s decision, the ThirdCircuit noted that the statutory requirements of ? 2412 (d)(1)(B) contain both a timelimit and standards for pleading, and that these two types of requirements serve differentpurposes.[A timely application] is required in most situationsin the interest of finality and reliance. But once the claim is filed, whether or not itis as complete as it should be, the interests of proof of timeliness and of finality andreliance have been satisfied. What remains is the fleshing out of the details, and thegovernment has pointed out no governmental interest which is in any way affected by thefact that the details of the fee claim came shortly after the claim was filed.775 F.2d at 103-04. The court found that Congress wasaware of the different purposes served by a timely filing requirement and a requirementsetting forth standards for pleading, and did not intend for the latter to be\”jurisdictional.\” Id. at 104. Therefore, the court concluded, a deficientapplication could be amended to fulfill the requirements of 28 U.S.C. ? 2412(d)(1)(B)after the time for filing an EAJA application had passed.In Lee v. Johnson, 799 F.2d 31, 35-6 n.4 (3dCir. 1986), the Third Circuit decided the precise issue presented here, although again inthe context 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 amended to cure a missing net worthstatement. Similarly, in City of Brunswick, Georgia v. United States, 661 F. Supp.at 1439, the court held that once an EAJA application is timely filed, a supplementalfiling is permitted to itemize attorney expenses and to allege that the position of theUnited States was not substantially justified.Other courts, however, have gone the other way. In Olsonv. Norman, 830 F.2d 811 (8th Cir. 1987), the court, relying on the principle thatwaivers of sovereign immunity are strictly construed, held that an EAJA application thatfailed to allege that the position of the United States was not substantially justified,failed to meet jurisdictional requirements and could not be supplemented. Furthermore, in U.S.v. Hopkins Dodge Sales, Inc., 707 F. Supp. 1078 (D.Minn. 1989), the court rejected theholding of Dunn and held that it lacked jurisdiction over an application which omittedstatutorily required information.We conclude that the Third Circuit’s decision in Dunnis the better approach. We adopt this approach because, in our view, it is more consistentwith the intent of Congress in passing the EAJA, to compensate small employers for thelegal costs incurred in defending themselves against unwarranted Government action. Wefind it unlikely that Congress would put up jurisdictional barriers in the form of rigidprocedural requirements that would most often hamper the ability of small employers toavail themselves of the remedy. Congress never intended the EAJA’s jurisdictionalrequirements to be \”a trap for the unwary.\” Myers v. Sullivan, 916 F.2dat 668; James v. HUD, 783 F.2d at 999. Therefore, we agree with the rationale setforth in Dunn, and conclude that, except for the time limit for filing theapplication, Congress did not intend to make ? 504(a)(2) an inflexible jurisdictionalprerequisite, but intended instead to set forth a standard of pleading that could be metby amendment after the filing of a timely application.Moreover, although statutory time limits are oftenheld to be jurisdictional, the liberal approach taken to amendment of pleadings, which isbased on the objective that cases should be decided on their merits rather than ontechnicalities, generally permits pleadings that are timely filed to be amended after thetime for filing has passed. Thus, in Oil, Chemical & Atomic Workers InternationalUnion 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 day period for filing an appeal of anOccupational Safety and Health Review Commission decision was jurisdictional, but that thepetition could be amended outside the sixty day period to name the proper respondent tothe appeal.Finally, a timely application adequately puts theGovernment on notice that fees are being sought. Once such notification has been made,allowing an amendment does not prejudice the Government in any manner. Congress enactedthe EAJA in order to allow small businesses an opportunity to recover the costs ofdefending themselves against unwarranted Government action. In our view, allowing adefective but timely EAJA application to be amended best serves the intent of Congress.IV. Conclusion and OrderFor the reasons stated above, we find that the judgeerred in denying as untimely AACE’s application for recovery of its fees and expensesunder the EAJA. We also find that the May 2, 1989 supplemental filing could and did amendthe initial application and that, as amended, the application fulfilled the requirementsof 5 U.S.C. ? 504(a)(2).Because the judge vacated the application asuntimely, he did not consider the Secretary’s objections to certain fees and expensesclaimed by AACE. Accordingly, we remand the matter to the Chief Judge for reassignment toanother administrative law judge [[9\/]] to determine the proper amount of the award.Accordingly, it is ORDERED that the judge’s decisionis reversed and that the Respondent’s application for fees and expenses under the EAJA isboth timely and valid. The matter is remanded to the Chief Judge for further proceedingsconsistent with this opinion.Edwin G. Foulke, Jr.ChairmanDonald G.WisemanCommissionerVelma MontoyaCommissionerDated: SEP 11,1991ASBESTOS ABATEMENTCONSULTATION &ENGINEERING ASSOCIATES,Petitioner,vSECRETARY OF LABOR,Respondent.OSHRC DOCKET NO. 87-1522DECISION AND ORDERAppearances:Jack Powasnik, Esq., Office of the Solicitor, Department of Labor, Washington, D. C., forRespondent.B. Harrison Moore, Legal Affairs Coordinator, Hainesport, New Jersey, for Petitioner.STATEMENT OF THE CASEBLYTHE, Judge:This case is before the Occupational Safety andHealth Review Commission (\”the Commission\”) under the Equal Access to JusticeAct (\”EAJ Act\”), 5 U.S.C. 504, and was brought against the Secretary of Labor(\”the Secretary\”) by Asbestos Abatement, Consultation & EngineeringAssociates (\”petitioner\” or \”applicant\”) for fees and expensesincurred in a proceeding under the Occupational Safety and Health Act of 1970, 29 U.S.C.?? 651-678 (\”OSH Act\”) The Occupational Safety and Health Administration(\”OSHA\”) issued one citation to petitioner alleging three willful violations of? 5(a)(2) of the OSH Act and proposing penalties totaling $8,000. Petitioner filed noticeof contest, after which the Secretary filed a complaint and Petitioner filed an answer.After a hearing, the undersigned found two violations (amending the characterization to\”other than serious\” and reducing the proposed penalties to $500.Petitioner petitioned the Commission fordiscretionary review, as to subitems (b) and (c) of the citation, which had been affirmed.The Secretary simultaneously filed objections to the petition for review and a motion toretract the order directing review. The motion was denied. The Secretary then filed anotice to withdraw subitems (b) and (c). The Commission construed this notice as a motionand granted it February 2, 1989, while affirming the judge’s order insofar as it vacatedsubitem (a).Petitioner on March 6, 1989, filed an application foran award of fees and expenses under the EAJ Act. The Secretary filed an answer and briefin opposition to the application on April 12, 1989, and Petitioner filed an undatedamended application (certified to have been mailed \”May _, 1989\”). The Secretaryelected to stand on her original brief, supplemented in part by a letter dated May 18,1989. The case was assigned to the undersigned for decision on March 10, 1989.JURISDICTION The first, and decisive, issue in this case iswhether the Commission has jurisdiction, and this depends on whether the application wastimely filed. Unfortunately, it was not; 32 days elapsed between final action by theCommission and the filing of the application for an award, whereas the EAJ Act allows only30 days.The EAJ Act provides, in 5 U.S.C. 504(a)(2):\”A party seeking an award of fees and otherexpenses shall, within thirty days of a final disposition in the adversaryadjudication, submit to the agency an application…\” (Emphasis supplied.) The courtsof appeals have uniformly held this provision of the EAJ Act and similar provisions inother statutes to be jurisdictional and must be construed strictly. E.g., LongIsland Radio Co. v. NLRB, 841 F.2d 474 (2nd Cir. 1988); Clifton v, Heckler, 755F.2d 1138 (5th Cir. 1985); Columbia Mfg. Co. v. NLRB, 715 F.2d 1409 (9th Cir.1983).The rationale for strict construction is well statedin Long Island Radio as follows:It is well established that \”[t]he UnitedStates, as sovereign, is immune from suit save as it consents to be sued….\” UnitedStates 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’s jurisdictionto entertain the suit.\” Id. Any waiver of the government’s sovereign immunityis to be strictly construed in favor of the government. See Library of Congress v. Shaw,478 U.S. 310, 106 S.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 theUnited States exists only as Congress has granted it, neither an agency nor a court hasthe power to entertain claims that do not meet the conditions limiting the waiver ofimmunity. Where a statute authorizing a claim against the United States contains timelimits for filing the claim, those limits set the temporal boundaries of the consent to besued; they grant the tribunal 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 (7th Cir. 1987) (action toenforce rights under Freedom of Information Act, 5 U.S.C. ? 552a(g)(5) (1982); Leonhardv. United States, 633 F.2d 599, 624 (2d Cir. 1980) (suit under Federal Tort ClaimsAct, 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 (5thCir. 1957), such a time limit is an \”enabling statute, evidencing a consent to besued and fixing the time for suing [; it] is not a statute of limitation but a statutegranting for a limited time the right of action afforded.\”The Commission has adopted Rules of Procedure toimplement the EAJ Act, and Rule 302(a), 29 C.F.R. 2204.302(a), provides that the 30-dayperiod for filing EAJ Act applications ends \”thirty days after the Commission’s finaldisposition of the proceeding.\” Here the granting of the Secretary’s motion towithdraw two subitems of the citation and affirming the judge’s order vacating the thirdsubitem was a \”final disposition.\” It was wholly favorable to the applicant, andit was already too late for the Secretary to seek review of the vacated item. It is,therefore, ORDERED that the petitioner’s application for fees and expenses under the EAJAct is DENIED.[[1]]DEE C. BLYTHEAdministrative Law JudgeDate: July 12, 1989FOOTNOTES: [[1\/]] The asbestos standard governing construction work, 29 C.F.R. ? 1926.58, containsrequirements for monitoring the airborne asbestos at worksites where asbestos is beingremoved.[[2\/]] Commission Rule 4(b) states in pertinent part:Where service of a document, other than a petition for discretionary review, is madeby mail pursuant to ? 2200.7, three days shall be added to the prescribed period for thefiling of a response.[[3\/]] Rule 6(e) of the Federal Rules of CivilProcedure provides: Whenever a party has the right or is required to do some act or take some proceedingswithin a prescribed period after the service of a notice or other paper upon the party andthe notice or paper is served upon the party by mail, 3 days shall be added to theprescribed period.[[4\/]] Commission Rule 4(a) provides in pertinentpart: In computing any period of time prescribed or allowed in these rules, the day fromwhich the designated period begins to run shall not be included. The last day of theperiod so computed shall be included unless 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 local rules of anydistrict court, by order of court, or by any applicable statute, the day of the act,event, or default from which the designated period of time begins to run shall not beincluded.\u00a0 The last day of the period so computed shall be included, unless it is aSaturday,a\u00a0 Sunday or a legal holiday….in which event the period runs until the endof the next day which is not one of the aforementioned days.[[6\/]] One court has, in dictum, stated that Fed. R. App. P. 26(a) would apply to a filingunder another provision of the EAJA. Action on Smoking & Health v. CAB, 724F.2d 211, 225 n. 72 (D.C. Cir. 1984). Fed. R. Civ. P. 6(a) and Fed. R. App. P. 26(a) bothexclude Saturday, Sunday, and federal holidays if they would be the last day of the filingperiod.This allowance stems from common-law practice, and has become recognized by longestablished legal and commercial tradition. Sherwood Brothers, Inc. v. District ofColumbia, 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 of fact, affirming,modifying, or vacating the Secretary’s citation or proposed penalty, or directing otherappropriate relief, and such order shall become final thirty days after its issuance.[[8\/]] 28 U.S.C. ? 2412(d)(1)(B) is applicable toEAJA applications filed before the courts and is the substantive equivalent of 5 U.S.C. ?504(a)(2).[[9\/]] Unfortunately, Judge Blythe passed away whilethis matter was pending before the Commission.[[1]] It should be noted that the application hasseveral other deficiencies which would greatly reduce the amount of any award if theCommission had jurisdiction. However, it would be fruitless to explore these deficiencies.”