Argued March 22, 2002
On Petition for Review of an Order of the Securities and Exchange Commission
Richard J. Adams petitions for review of the denial of his application for attorneys’ fees under the Equal Access to Justice Act (“EAJA”), 5 U.S.C. s 504. The Securities and Exchange Commission ruled that Adams’s application was untimely because it was not filed within 30 days of the “final disposition” of his adversary adjudication as required by s 504(a)(2). The Commission reasoned that although its EAJA regulations define “final” to mean “final and unappealable,” 17 C.F.R. s 201.44(b), because Adams was not aggrieved by the order of dismissal in his favor, the order was “unappealable” at its issuance; hence, there was no basis on which to conclude that the 30day filing deadline commenced only after the statutory 60-day period for appeal had expired rather than immediately upon the issuance of the order of dismissal. Adams contends that the Commission has confused the issue of appealability in the context of EAJA, with the underlying merits of an appeal. In other words, regardless of whether the disposition giving rise to the EAJA fee is specifically appealable, the EAJA filing deadline should not expire in any case until 30 days after the time for appeal under the relevant law of appealability, here 15 U.S.C. s 78y(a)(1), has expired or the appeal has been completed. We agree, for the Commission’s position involves the awkward practice of requiring a case-by-case examination of appealability contrary to the purposes of EAJA. Accordingly, we grant the petition to the extent of reversing the denial of Adams’s EAJA application; we remand the case to the Commission to determine Adams’s eligibility for fees.
