“Docket No. 81-1177 SECRETARY OF LABOR,Complainant,v.A. A. BEIRO CONSTRUCTION COMPANY, INC., Respondent.OSHRC DOCKET NO. 81-1177DIRECTION FOR REVIEW AND ORDERAn order of Administrative Law Judge William E. Brennan dismissing RespondentBeiro’s application for fees and expenses under the Equal Access to Justice Act, 5 U.S.C.? 504 (\”EAJA\”), is hereby directed for review.Judge Brennan dismissed the application on the basis that review of theCommission’s final order on the adversary adjudication for which fees and expenses aresought is pending in the United States Court of Appeals. [[1]]\u00a0 Beiro contends thatthe judge’s action was improper because some of the citation items on which it prevailedin the underlying adjudication are not at issue in the pending court proceedings. [[2]]\u00a0 Beiro requests that the Commission reinstate its EAJA application as to thosecitation items for which court review has not been sought.\u00a0 The Secretary joins inBeiro’s request.We agree with the parties that the judge’s order of dismissal was erroneous.\u00a0 The Commission’s rules implementing the EAJA provide as follows: If review of a Commission decision, or any item or items contained in thatdecision, is sought in the court of appeals under section II of the OSH Act, 29 U.S.C.660, an application for an award filed with the Commission with regard to that decisionshall be dismissed . . . as to the item or items of which review is sought.29 C.F.R. ? 2204.302(c), emphasis added.This rule clearly intends that in a case such as this, where the appellatecourt is asked to review only a portion of the Commission’s adjudication, the Commissionretains jurisdiction over an EAJA application as to those items which are not the subjectof court proceedings. [[3]]Accordingly, the judge’s order of dismissal is set aside, Beiro’s EAJAapplication is reinstated as to those citation items for which no appellate review hasbeen sought, and this matter is remanded for further proceedings.RAY H. DARLING, JR.Executive SecretaryDated:\u00a0 FEB 13 1984The Administrative Law Judge decision in this matter is unavailable in thisformat.\u00a0 To obtain a copy of this document, please request one from our PublicInformation Office by e-mail ( [email protected]), telephone (202-606-5398), fax (202-606-5050), or TTY (202-606-5386).FOOTNOTES: [[1]] Donovan v. A.A. Beiro Constr. Co, No. 83-2008 (D.C. Cir. Sept. 23, 1983); A.A.Beiro Constr. Co. v. OSHRC, No. 83-2053 (D.C. Cir. Oct. 5, 1983).[[2]] Judge Brennan, in his decision on the merits of the citation items,vacated six items for failure of proof by the Secretary.\u00a0 The Secretary withdrewother items prior to hearing.\u00a0 The Commission did not direct review of the judge’sdecision, and thus it became a final order pursuant to 29 U.S.C. ? 661(i).\u00a0 TheSecretary’s brief filed before the court of appeals takes exception only to the judge’sdisposition of two of the contested citation items.[[3]] For this reason, this case is distinguishable from Federal ClearingDie Casting Co., 11 BNA OSHC 1157, 1983 CCH OSHD ? 26,423 (No. 80-2903, 1983), onwhich the judge relied.\u00a0 In that case, the Commission judge suppressed theSecretary’s evidence and dismissed the citations on the basis that the Secretary’sinspection warrant was invalid.\u00a0 Thus, the Secretary’s petition for appellate reviewof that decision placed the judge’s entire disposition before the court.”