SECRETARY OF LABOR,
Complainant,
v.

H.P. FOWLER CONTRACTING CORPORATION,

Respondent.

OSHRC Docket No. 80-3699

DECISION

Before:  ROWLAND, Chairman; CLEARY and BUCKLEY, Commissioners
BY THE COMMISSION:

The principal issue presented by this case is whether the respondent, H.P. Fowler Contracting Corporation ("Fowler"), prevailed as to discrete substantive portion of a proceeding in which it contested certain OSHA citations, when the proceeding was resolved by a settlement agreement under which one citation item was withdrawn, two willful items were recharacterized as serious, the total penalty was reduced from $11,200 to $2,080, and Fowler withdrew its contest as to five citation items.  Under the Equal Access to Justice Act, Title II of Pub. L. No. 96-481, 94 Stat. 2325 (1980)("EAJA"), Fowler must show that, among other things, it was a prevailing party as to at least a discrete substantive portion of the proceeding in order to be awarded fees and expenses, including attorney fees, incurred in the proceeding.  See 29 C.F.R. 2204.106(a) & 2204.201(a).  Chief Administrative Law Judge Paul A. Tenney ruled that Fowler was not a prevailing party as to a discrete substantive portion of the proceeding and denied Fowler's application for $6,618 in attorney fees and expenses under EAJA.  We reverse the judge's ruling that Fowler was not a prevailing party and remand the case for further proceedings.

I

Following an inspection of Fowler's worksite in Pharr, Texas, by an Occupational Safety and Health Administration (OSHA) compliance officer, citations were issued to Fowler alleging three willful violations, two serious violations, and one non-serious violation of the Occupational Safety and Health Act of 1970, 29 U.S.C. 651-678 ("the Act").  The alleged willful and serious violations concerned Fowler's practices regarding its employees' entering sewer manholes that could lack oxygen or contain toxic flammable gases.  The non-serious citation alleged that Fowler failed to maintain a log of occupational injuries and illnesses. Penalties totaling $11,200 were proposed for the alleged willful and serious violations, while no penalty was proposed for the alleged non-serious violation.

Fowler contested the citations.  Following vigorous litigation up to the court of appeals concerning the Secretary's late filing of his complaint, but prior to the holding of an evidentiary hearing, Fowler and the Secretary reached a settlement of the case.  Under the settlement agreement, the alleged willful and serious violations were revised and restated as items of one serious citation, as follows:
(1) Item 1 of the willful citation was omitted from the revised citation.  It had alleged that Fowler violated section 5(a)(1) of the Act by not providing safety harnesses and lifelines to its employees entering sewer manholes known to contain toxic gases and to be deficient in oxygen.  A penalty of $2,800 had been proposed for this item.

(2) Item 2 of the willful citation had alleged that Fowler violated 29 C.F.R. 1910.134(b)(8) or, alternatively, section 5(a)(1) of the Act, by not performing frequent tests in sewer manholes to assure that work areas were free of toxic and flammable gases and not deficient in oxygen.  A penalty of $1,680 had been proposed for this item.  Under the settlement agreement, this item was recharacterized as a serious violation, the standard alleged to be violated was amended to include both section 1910.134(a) and section 1910.134(b)(8), and the alternative section 5(a)(1) allegation was deleted.

(3) Item 3 of the willful citation, for which a penalty of $5,600 had been proposed, had alleged that Fowler violated 29 C.F.R. 1926.103(a)(1) by not providing, or enforcing use of respirators for employees working in a sewer manhole, since sewer manholes were known to contain hydrogen sulfide and methane gases and oxygen deficiencies.  This item was recharacterized as a serious violation and reworded to state that sewer manholes "sometimes contain hydrogen sulfide and methane gases and oxygen deficiency," rather than stating that sewer manholes "are known to contain" such conditions.

(4) Item 1 of the serious citation had alleged that Fowler violated 29 C.F.R. 1910.134(e)(3)(i) in that no standby person equipped with an emergency rescue respirator was present when Fowler's employees were working in a sewer manhole.  A penalty of $560 had been proposed for this item.  Under the settlement agreement, this item was retained without alteration, except that the standard violated was identified as section "1910.134(a)(3)(3)(i)" [sic] and, as in the prior item, language that sewer manholes "sometimes contain" oxygen deficiencies and hydrogen sulfide and methane gases was substituted for a statement that sewer manholes "are known to" contain such conditions.

(5) Item 2 of the serious citation had alleged that Fowler violated 29 C.F.R. 1926.21(b)(6)(i) by not instructing its employees working in a sewer manhole on the nature of hazards involved, necessary precautions, and use of protective and emergency equipment.  A penalty of $560 also had been proposed for this item.  Under the settlement agreement, this item was retained without alteration, except that, again, language that sewer manholes "sometimes contain" oxygen deficiencies and hydrogen sulfide and methane gases was substituted for a statement that sewer manholes "are known to" contain such conditions.

The settlement agreement did not assign penalty amounts to the individual citation item but reduced the total penalty to $2,080.  In addition, the settlement agreement did not alter the non-serious citation.  The agreement recited that Fowler stated that the conditions described in the amended citation had been corrected.   Fowler agreed in the settlement to withdraw its notice of contest. There was no statement in the settlement agreement concerning fees and expenses.

II

Following Judge Tenney's approval of the settlement agreement, Fowler filed an application for fees and expenses under EAJA, seeking an award of $6,618.40.  Judge Tenney denied the fee application. He rejected the Secretary's argument that Fowler's contest of the citations had ceased prior to October 1, 1981, the effective date of EAJA, and that the fee application was not timely filed.  However, the judge agreed with the Secretary that Fowler was not a prevailing party in a discrete substantive portion of the proceeding.  The judge based his holding on the retention in the settlement agreement of four of the five citation items concerning employees entering sewer manholes.  He rejected Fowler's contention that, in obtaining a sharp reduction in the penalty amounts, Fowler prevailed in a discrete substantive portion of the contest, because he attributed the reduction in penalties to Fowler's abatement of the violation after the citations were issued. In sum, the judge concluded that under the settlement Fowler was "not a prevailing party any more than was the Secretary."  The judge did not reach other arguments set forth by the Secretary, including contentions that the Secretary's positions in issuing and in settling the citations were substantially justified, that Fowler unduly protracted the litigation, that fees incurred prior to the effective date of EAJA cannot be awarded, and that most of the fees sought by Fowler were not otherwise allowable under EAJA.

On review, Fowler contends that it was a prevailing party in the settlement because it secured withdrawal of two section 5(a)(1) willful items, a reduction in penalties of 81 percent, and recharacterization of two item from willful to serious.   It notes that the outcome here is similar to the example given in the preamble to the Commission's EAJA rules at 46 Fed. Reg. 48,078, 48,079 (Sept. 30, 1981), which state that a party that obtains the vacation of one item of a three item citation prevails as to a discrete substantive portion of the proceeding.[[1]]

The Secretary argues that Fowler was not a prevailing party under the terms of the settlement because the settlement incorporated most, if not all, of the improper procedures and actions that the Secretary found to exist at Fowler's worksite, and Fowler represented that these had been abated; thus, by obtaining abatement, the settlement effectuated the overriding policy of the Act, assuring safe and healthful working coalitions.  The Secretary asserts that penalties and the characterization of violations are merely tools used to secure abatement.  The Secretary distinguishes this case from the example given in the preamble to the Commission's EAJA regulations that indicates that an employer that obtains vacation of one out of three items has prevailed as to a discrete substantive portion of the proceeding.  In the typical case, which the preamble example presumably addresses, each citation item concerns a different workplace condition, according to the Secretary.  However, in this case each of the citation items related to Fowler's practices concerning its employees working in sewer manholes that possibly contained hazardous gases.  Since Fowler agreed to abate at least most of these related deficiencies, it was not a prevailing party, the Secretary reasons.  The Secretary also maintains that settlement terms that lower penalties or reduce in severity the characterization of violations should not be held to make the employer a prevailing party.  This would discourage the settlement of cases, since most settlements contain such provisions.

III
Under the Equal Access to Justice Act, a private party that prevails against the federal government in an administrative adjudication (including a contest of an OSHA citation) and meets certain limits on net worth and number of employees is entitled to an award of attorney fees and other expenses, unless the position of the government as a party to the proceeding was substantially justified or special circumstances make an award unjust.   5 U.S.C. 504(a)(1) & 504(b)(1)(B); see generally Hocking Valley Steel Erectors, Inc., 83 OSAHRC 28/A2, 11 BNA OSHC 1492, 1983 CCH OSHD 26,549 (No. 80-1463, 1983), appeal dismissed per stipulation, No. 83-3560 (6th Cir. Nov. 11, 1983); Federal Clearing Die Casting Co., 83 OSAHRC 7/D2, 11 BNA OSHC 1157, 1983 CCH OSHD 26,423 (No. 80-2903, 1983).  The reports of the House and Senate Judiciary Committees that considered EAJA explained, as follows, EAJA's requirement that a party be "prevailing" in order to receive a fee award:

Under existing fee-shifting statutes, the definition of prevailing party has been the subject of litigation.  It is the committee's intention that the interpretation of the term in S. 265 be consistent with the law that has developed under existing statutes.  Thus, the phrase "prevailing party" should not be limited to a victor only after entry of a final judgment following a full trial on the merits.  A party may be deemed prevailing if he obtains a favorable settlement of his case, Foster v. Boorstin, 561 F.2d 340 (D.C. Cir. 1977); if the plaintiff has sought a voluntary dismissal of a groundless complaint, Corcoran v. Columbia Broadcasting System, Inc., 121 F.2d 575 (9th Cir. 1941); or even if he does not ultimately prevail on all issues, Bradley v. School Board of the City of Richmond, 416 U.S. 696 (1974).

In cases that are litigated to conclusion, a party may be deemed "prevailing" for purposes of a fee award in a civil action prior to the losing party having exhausted its final appeal.  A fee award may thus be appropriate where the party has prevailed on an interim order which was central to the case, Parker v. Matthews, 411 F. Supp. 1059, 1064 (D.D.C. 1976), or where an interlocutory appeal is "sufficiently significant and discrete to be treated as a separate unit", Van Hoomissen v. Xerox Corp., 503 F.2d 1131, 1133 (9th Cir. 1974).

S. Rep. No. 96-253, 96th Cong., 1st Sess. 7 (1979), reprinted in Award of Attorneys' Fees Against the Federal Government: Hearings Before the Subcom. on Courts, Civil Liberties & the Administration of Justice, 96th Cong., 2d Sess. at 243 (herein cited as Hearings); H.R. Rep. No. 96-1418, 96th Cong., 2d Sess. 11 (1980), reprinted in Hearings at 342; see also Conference Report, H.R. Rep. No. 96-1434, 96th Cong., 2d Sess. 21-22, reprinted in Hearings at 393-394.

It is, thus, clear under the legislative history that, for the purpose of obtaining a fee award, a party may be deemed prevailing even if he does not prevail on all issues.  The question then becomes under what circumstances a party that prevailed only as to some aspects of a case should be eligible for fees.  As the committee reports indicate, interpretation of the term "prevailing party" is to be consistent with the law developed under other fee-shifting statutes.  In considering a fee award motion under the Civil Rights Attorney's Fees Award Act of 1976, 42 U.S.C. 1988, the First Circuit gave examples of employment discrimination cases in which fees were awarded to plaintiffs who were only partially successful:

Many courts have awarded fees to plaintiffs who have succeeded in proving class wide discrimination but failed to establish that they had individually suffered injury and were entitled to personal remedies.  See Bolton v. Murray Envelope Corp., 553 F.2d 881 (5th Cir. 1977); Barnett v. W.T. Grant Co., 518 F.2d 543 (4th Cir. 1975); Parham v. Southwestern Bell Telephone Co., 433 F.2d 421 (8th Cir. 1970); Saracini v. Missouri Pac. R. Co., 431 F.Supp. 389 (E.D. Ark. 1977).  Other courts have awarded fees in the reverse situation in which plaintiff was successful on his individual claim but did not prevail an his class wide allegations, Taylor v. Safeway Stores, Inc., 524 F.2d 263 (10th Cir. 1975), or have awarded fees when plaintiff achieved the injunctive relief she sought, but was unsuccessful as to her damage claim, Rosenfeld v. Southern Pacific Co., 519 F.2d 527 (9th Cir. 1975).  In Taylor v. Goodyear Tire and Rubber Co., 6 E.P.D. 8696 (D.C. Ala. 1973), plaintiffs were awarded attorney's fees for prevailing on seniority rights and sick pay claim but losing on job classification and back pay issues.  The court in Younger v. Glamorgan Pipe and Foundry Co., 418 F.Supp. 743 (W.D. Va. 1976), vacated on other grounds, 561 F.2d 563 (4th Cir. 1977), awarded fees to plaintiffs despite the fact that they had prevailed on only one of 15 issues.

Nadeau v. Helgemoe, 581 F.2d 275, 278 (1st Cir. 1978).

In Van Hoomissen v. Xerox Corp., 503 F.2d 1131 (9th Cir. 1974), a case cited in the Senate and House committee reports, a defendant was deemed to have prevailed for purposes of a fee award even though it had won on only an ancillary issue and the merits were yet to be decided.  In that case the Equal Employment Opportunity Commission sought to intervene in a private employment discrimination suit both as to the issue of discriminatory hiring and the issue of unlawful retaliation.  The court permitted intervention only as to the latter issue.  The EEOC appealed this ruling and lost, and the Ninth Circuit awarded attorney fees to the employer on the appeal, even though the issue on appeal was not dispositive of the case.  The court explained:
The [EEOC] also argues that Section 706(k) authorizes an award only to the "prevailing party."  Although Xerox "prevailed" on this interlocutory appeal, it might still lose the principal case and thus not "prevail."  We agree that litigation should not be dissected to the point that the losing party be permitted to recover attorney's fees connected with every procedural motion on which it prevails. But this interlocutory appeal is sufficiently significant and discrete to be treated as a separate unit.  Thus, the fact that Xerox prevailed an this appeal qualifies it as a "prevailing party" eligible for an award of attorney's fees connected with the appeal.

503 F.2d at 1133.

In Chicago Police Officers' Association v. Stover, an employment discrimination case that ended in a settlement, the Tenth Circuit explained an award of fees to the plaintiffs as follows: "[I]f a settlement provides some benefit to plaintiff or some vindication of their rights, then the congressional intent to encourage private enforcement of civil rights will be furthered by the awarding of fees." It added: "This is true even when both sides lose something and gain something, resulting in a 'draw,' as long as plaintiffs have received substantial benefits."   624 F.2d 127, 131 (10th Cir. 1980).

In order to effectuate the meaning of the term "prevailing party" expressed in the legislative history and consistent with the case law developed under other fee-shifting statutes, the Commission rules implementing EAJA, at 29 C.F.R. 2204.106(a), provide: "A prevailing applicant may receive an award for fees and expenses incurred in connection with a proceeding, or in a discrete substantive portion of a proceeding. . . ." The preamble to the Commission's rules explains this provision as follows:

Paragraph (a) of 2204.106, "Standards for awards," permits an award of fees and expenses for a party that prevails in a "discrete substantive portion" of a proceeding, omitting from corresponding model rule, 0.105(a), the requirement that the portion on which the party prevails be "significant" as well as "discrete."  A similar change is made in 2204.302(a).  The issue of whether a particular portion of a case before the Commission is "significant" is a relative matter and one that sheds little light on whether the award of fees and expenses incurred in litigating that portion is warranted.  If a party prevails in a "discrete substantive portion" of a Commission proceeding, that should be a matter sufficient for an award, assuming the other requirements of the EAJ Act are met. For example, if the Secretary secures the affirmance of two items contained in a three-item citation, while the contesting employer persuades the Commission to vacate the third item, the latter item is a "discrete substantive portion" of the proceeding as to which the employer may seek an award of fees and expenses.

46 Fed. Reg. 48,078, 48,079 (Sept. 30, 1981).

The Secretary acknowledges that the Commission's adoption of a rule permitting a fee award under EAJA to a party who prevails in a discrete substantive portion of a contest for two reasons.  First, the settlement to which Fowler agreed included "most, if not all" of the improper procedures and actions that the citations identified concerning Fowler's employees working in sewer manholes. Second, the reductions that Fowler obtained in characterizations of severity of violations and in penalty amounts do not make it a prevailing party, because penalties and characterization of violations are merely tools used by the Secretary to secure abatement of violations.

We do not agree.  In stressing that the settlement agreement left intact four of the five items concerning employees working in sewer manholes, the Secretary appears to argue that he, rather than Fowler, prevailed as to the central issue in the case.  He cites a district court decision stating that, in determining whether to award fees, one should particularly focus on "whether the party [seeking fees] is the successful party with respect to the central issue ...."Parker v. Mathews, 411 F.Supp. 1059, 1064 (D.D.C. 1977).  However, under the test that we have adopted and that the Secretary acknowledges to be based on the prevailing case law, the party seeking fees need not have prevailed as to the central issue in the case but only as to a discrete substantive portion of the proceeding.  The Supreme Court recently spoke with apparent approval of a similar teat, stating:  "A typical formulation [of the standard for determining whether a party is a prevailing party] is the 'plaintiffs may be considered "prevailing parties" for attorney's fee purposes if they succeed on any significant issue in litigation which achieves some of the benefits the parties sought in bringing suit. '" Hensley v. Eckerhart, 103 S.Ct. 1933, 1919 (1983) (footnote omitted), quoting Nadeau v. Helgemoe, 581 F.2d 275, 278-279 (1st Cir. 1978).  Thus, under our test, even if abatement were the central issue, [[2]] the Secretary's winning as to this issue (if he did so) does not of itself bar Fowler from an award of fees.   We, therefore, must examine whether the aspects of the case on which Fowler prevailed constituted a discrete substantive portion of the proceedings.

Although the settlement included four of the five items that concerned employees working in sewer manholes, it omitted item 1 of the willful citation, which alleged that Fowler had not provided safety harnesses and lifelines to its employees entering sewer manholes containing toxic gases, and that thereby, Fowler had willfully failed to provide a place of employment free from recognized hazards causing or likely to cause death or serious physical harm.  The violation alleged by this item war hardly minor or trivial, and it carried a proposed penalty of $2,800.  Moreover, none of the other items concerning work in sewer, manholes addressed the absence of safety harnesses and lifelines.  By securing withdrawal of item 1, Fowler clearly prevailed as to a portion of the case that was both discrete and substantive.[[3]]

The Secretary attempts to diminish the importance of the withdrawal of item 1 by asserting that, notwithstanding the absence of this item, the settlement agreement included "most, if not all" of Fowler's allegedly improper procedures, with respect to work in sewer manholes.  If this statement is intended to mean that inclusion of item 1 in the settlement was not necessary to obtain complete abatement of the alleged sewer manhole hazards, the statement appears to admit that item 1 was merely duplicative of other citation item.  An employer's success in obtaining withdrawal of a redundant citation item for which a separate penalty is proposed should not be minimized because of the very fact that the item was duplicative.  The the contrary, the issuance of a citation with duplicative items, each bearing a separate penalty, may well be the type of abusive practice that EAJA was intended to deter.  See H.R. Rep. No. 96-1418, 96th Cong., 2d Sess. at 14, reprinted in Hearings at 345, and (1980] U.S. Code Cong. & Ad. News at 4993.  On the other hand, if complete abatement of the sewer manhole hazards could not be accomplished without item 1, this underscores that, by obtaining withdrawal of this item, Fowler prevailed as to an alleged violation that was discrete and substantive.

As to the Secretary's second argument, the fact that he views penalties and   the degree of severity of violations primarily as devices for obtaining abatement does not compel a conclusion that these aspects of a case are not substantive or that cited employers, who must pay such penalties, share his view.  Whether reduction in penalties and severity of violations constitutes a discrete substantive portion of a case must be determined on the basis of all the relevant facts and circumstances.  Under the Act, the maximum penalty for a serious violation is only one-tenth of the maximum for a willful violation, see 29 U.S.C. 666(a) & (b), and, of course, no penalty may be imposed for an item that is withdrawn.  The reduction in penalty here, thus, appears to have been predicated largely on the withdrawal of one willful item that had carried a $2,800 penalty and the reduction from willful to serious of two others that had carried $7,280 in penalties.  Moreover, the magnitude of the reduction to total penalties, from $11,200 to $2,080, was sizable. Additionally, characterization of a violation as willful connotes intentional wrongdoing.  Under the Act, a violation is willful if it is committed with intentional disregard of, or plain indifference to, the Act's requirements. Mel Jarvis Construction Co., 81 OSAHRC 89/B13, 10 BNA OSHC 1052, 1981 CCH OSHD (P) 25,713 (No. 77-2100, 1981).  Thus, the reduction in characterization of two violations from willful to serious is a matter of some importance.  Under these circumstances, we conclude that, taken as a whole, the withdrawal of one willful item, the downgrading of two others, and the concomitant substantial reduction in total penalties, constitute a discrete substantive portion of the proceeding on which Fowler prevailed. While we agree with the court in Van Hoomissen v. Xerox Corp. that "litigation should not be dissected to the point that the losing party be permitted to recover attorney's fees connected with every procedural motion on which it prevails" 503 F.2d at 1133, our conclusion that Fowler was a prevailing party is not based on the outcome of inconsequential issues or on an overly detailed examination of every twist and turn of the litigation.  We also must disagree with the Secretary's point that Fowler should not be found to be a prevailing party with respect to the lowering of penalties and recharacterization of violations because to find Fowler a prevailing party in these circumstances would discourage settlements, as such provisions often are contained in settlements.  This argument is simply a refinement of the proposition that no fee awards should be made in cases that settle.  However, the language of the congressional committee reports quoted above is explicit that EAJA was intended to authorize fee awards in cases that terminate in settlement, and at least two federal circuit courts of appeals have so held.  See Environmental Defense Fund v. Watt, 722 F.2d 1081 (2d Cir. 1983); Citizens Coalition for Block Grant Compliance v. Euclid, 717 F.2d (6th Cir. 1983).  The same conclusion also has been reached under other fee award statutes.  E.g., Maher v. Gagne, 448 U.S. 122 (1980); Chicano, Police Officers' Association v. Stover, supra; Copeland v. Marshall, 641 F.2d 880 (D.C. Cir. 1980); Foster v. Boorstin, 561 F.2d 340 (D.C. Cir. 1977).  Additionally, aside from the question of statutory intent, the logic of the Secretary's argument is not persuasive. If barred from recovering attorney fees on the basis of reduced penalties and downgraded violations in settlements, employers no doubt would be discouraged from agreeing to settlements and more inclined to litigate cases to conclusion.  Thus, while not precluding an award of fees on such a basis arguably may deter the Secretary from settling cases, a contrary rule would deter employers from settling.  Therefore, we do not believe that holding Fowler to be a prevailing party partially on the basis of the reduced penalties and downgraded violations secured in a settlement will deter the Secretary from agreeing to settle cases in the future.

We recognize, of course, that in order for an attorney fee request in a settled case to be properly decided, it may be necessary for the judge to address, at least to some extent, issues in the underlying contest of citations which, absent the fee application, the settlement would have made unnecessary to consider.  This appears particularly likely to occur in cases in which the judge must rule on the Secretary's contention that his position in the underlying case was substantially justified.  An analogous situation prompted the court in Nadeau v. Helgemoe to comment:  "In such circumstances, one might argue that the district court cannot meaningfully decide the legal requirements that govern defendants' conduct without conducting the very trial the consent decree was signed to avoid." 581 F.2d at 281.  Yet, as the Supreme Court has recently admonished:  "A request for attorney's fees should not result in a second major litigation."  Hensley v. Eakerhart, 103 S.Ct. at 1941.  There is no easy solution to this dilemma.  Based on the circumstances of each case, the administrative law judge must draw on his skill and experience to determine an appropriate means by which to reach a fair disposition of the fee request without, if possible, conducting a proceeding as lengthy and complex as the litigation that the settlement agreement sought to avoid.  In many cases it should be possible to decide fee applications on the basis of written submissions and avoid the holding of an evidentiary hearing.  See 29 C.F.R. 2204.307.

IV
Accordingly, the judge's ruling that Fowler failed to prevail as to a discrete substantive portion of the contest of the citations is reversed, and the judge's ruling denying the fee application is vacated.  The case is remanded for further proceedings consistent with this decision

SO ORDERED.

FOR THE COMMISSION

Ray H. Darling, Jr.
Executive Secretary

DATED:  MAR 14 1984

FOOTNOTES:

[[1]] Additionally, Fowler submits that the judge erred in failing to grant its motion for "summary judgment" fees, i.e., fees it incurred in the fee application litigation. However, Fowler never filed a supplement to its original fee application to request such fees.  See Hocking Valley Steel Erectors, Inc., 81 OSAHRC 28/A2, 11 BNA OSHC 1492, 1493 n.2, 1983 CCH OSHD 26,549, p. 33,902 n.2 (No. 80-1463, 1983), appeal dismissed per stipulation, No. 83-3560 (6th Cir. Nov. 11, 1983).   Moreover, since Fowler did not prevail on its fee award request before the judge, the judge did not err, at that point in the litigation, in failing to award to Fowler fees incurred in the fee request proceedings.

Fowler also asserts that the ALJ committed certain prejudicial errors relating to exhibits.  Along with his answer to the fee application, the Secretary submitted one exhibit to show that the underlying case was resolved before the effective date of EAJA and more than 30 days before the fee application was filed.  He also submitted three exhibits to show that his issuance of the citations and his later revision of them in the settlement were substantially justified.  One of these exhibits contained the Secretary's investigation file in the case and was submitted for in camera review, with the request that it be sealed. Only an expurgated version of this exhibit was served on Fowler.

Fowler argued that the judge erred in that:  (1) he failed to rule on Fowler's motion to strike the Secretary's answer to the fee application on the ground that the Secretary did not serve on Fowler a complete copy of the exhibit containing the investigation file and failed to attach a certificate of service to his brief and dismissal motion; (2) the judge did not rule on Fowler's motions opposing the Secretary's exhibits; and (3) the judge waited until after he denied Fowler's fee application to rule on the Secretary's motion that the investigation file exhibit be sealed, thereby depriving Fowler of access to the exhibit while the fee application was being considered.

These arguments do not provide a basis for rehearsal, because the judge did not rule adversely to Fowler on the issues to which the exhibits pertained.  The judge rejected the Secretary's arguments that the underlying case was resolved before EAJA became effective and that the fee application was filed late, and the judge did not reach the argument that the citation was substantially justified.  Also, the investigation file exhibit ultimately was released to Fowler while this case was pending an review and Fowler has not sought to raise any additional points based on the information contained in the exhibit.

[[2]] It is not clear that in fact abatement was an issue in the case.   Fowler asserts without contradiction that the hazards were abated prior to the notice of contest and, therefore, prior to the filing of the Secretary's complaint.

[[3]] In addition to this item, Fowler asserts that it obtained withdrawal of one other alleged willful section 5(a)(1) violation. However, the second section 5(a)(1) charge to which Fowler refers vas alleged merely as an alternative basis for finding in violation conduct described in item 2 of the willful citation.  Since item 2 of the willful citation was retained in the settlement agreement as
an alleged violation of a standard, the deletion of the alternative section 5(a)(1) theory is not a discrete substantive portion of the case on which Fowler prevailed.