“SECRETARY OF LABOR,Complainant,v.H.P. FOWLER CONTRACTING CORPORATION,Respondent.OSHRC Docket No. 80-3699_DECISION_Before: ROWLAND, Chairman; CLEARY and BUCKLEY, CommissionersBY THE COMMISSION:The principal issue presented by this case is whether the respondent,H.P. Fowler Contracting Corporation (\”Fowler\”), prevailed as to discretesubstantive portion of a proceeding in which it contested certain OSHAcitations, when the proceeding was resolved by a settlement agreementunder which one citation item was withdrawn, two willful items wererecharacterized as serious, the total penalty was reduced from $11,200to $2,080, and Fowler withdrew its contest as to five citation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 portionof the proceeding in order to be awarded fees and expenses, includingattorney fees, incurred in the proceeding. See 29 C.F.R. ?? 2204.106(a)& 2204.201(a). Chief Administrative Law Judge Paul A. Tenney ruled thatFowler was not a prevailing party as to a discrete substantive portionof the proceeding and denied Fowler’s application for $6,618 in attorneyfees and expenses under EAJA. We reverse the judge’s ruling that Fowlerwas not a prevailing party and remand the case for further proceedings.IFollowing an inspection of Fowler’s worksite in Pharr, Texas, by anOccupational Safety and Health Administration (OSHA) compliance officer,citations were issued to Fowler alleging three willful violations, twoserious violations, and one non-serious violation of the OccupationalSafety and Health Act of 1970, 29 U.S.C. ?? 651-678 (\”the Act\”). Thealleged willful and serious violations concerned Fowler’s practicesregarding its employees’ entering sewer manholes that could lack oxygenor contain toxic flammable gases. The non-serious citation alleged thatFowler failed to maintain a log of occupational injuries and illnesses.Penalties totaling $11,200 were proposed for the alleged willful andserious violations, while no penalty was proposed for the allegednon-serious violation.Fowler contested the citations. Following vigorous litigation up to thecourt of appeals concerning the Secretary’s late filing of hiscomplaint, but prior to the holding of an evidentiary hearing, Fowlerand the Secretary reached a settlement of the case. Under thesettlement agreement, the alleged willful and serious violations wererevised and restated as items of one serious citation, as follows:(1) Item 1 of the willful citation was omitted from the revisedcitation. It had alleged that Fowler violated section 5(a)(1) of theAct by not providing safety harnesses and lifelines to its employeesentering sewer manholes known to contain toxic gases and to be deficientin oxygen. A penalty of $2,800 had been proposed for this item.(2) Item 2 of the willful citation had alleged that Fowler violated 29C.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 workareas were free of toxic and flammable gases and not deficient inoxygen. A penalty of $1,680 had been proposed for this item. Under thesettlement agreement, this item was recharacterized as a seriousviolation, the standard alleged to be violated was amended to includeboth section 1910.134(a) and section 1910.134(b)(8), and the alternativesection 5(a)(1) allegation was deleted.(3) Item 3 of the willful citation, for which a penalty of $5,600 hadbeen proposed, had alleged that Fowler violated 29 C.F.R. ?1926.103(a)(1) by not providing, or enforcing use of respirators foremployees working in a sewer manhole, since sewer manholes were known tocontain hydrogen sulfide and methane gases and oxygen deficiencies. This item was recharacterized as a serious violation and reworded tostate that sewer manholes \”sometimes contain hydrogen sulfide andmethane gases and oxygen deficiency,\” rather than stating that sewermanholes \”are known to contain\” such conditions.(4) Item 1 of the serious citation had alleged that Fowler violated 29C.F.R. ? 1910.134(e)(3)(i) in that no standby person equipped with anemergency rescue respirator was present when Fowler’s employees wereworking in a sewer manhole. A penalty of $560 had been proposed forthis item. Under the settlement agreement, this item was retainedwithout alteration, except that the standard violated was identified assection \”1910.134(a)(3)(3)(i)\” [sic] and, as in the prior item, languagethat sewer manholes \”sometimes contain\” oxygen deficiencies and hydrogensulfide and methane gases was substituted for a statement that sewermanholes \”are known to\” contain such conditions.(5) Item 2 of the serious citation had alleged that Fowler violated 29C.F.R. ? 1926.21(b)(6)(i) by not instructing its employees working in asewer manhole on the nature of hazards involved, necessary precautions,and use of protective and emergency equipment. A penalty of $560 alsohad been proposed for this item. Under the settlement agreement, thisitem was retained without alteration, except that, again, language thatsewer manholes \”sometimes contain\” oxygen deficiencies and hydrogensulfide and methane gases was substituted for a statement that sewermanholes \”are known to\” contain such conditions.The settlement agreement did not assign penalty amounts to theindividual citation item but reduced the total penalty to $2,080. Inaddition, the settlement agreement did not alter the non-seriouscitation. The agreement recited that Fowler stated that the conditionsdescribed in the amended citation had been corrected. Fowler agreed inthe settlement to withdraw its notice of contest. There was no statementin the settlement agreement concerning fees and expenses.IIFollowing Judge Tenney’s approval of the settlement agreement, Fowlerfiled an application for fees and expenses under EAJA, seeking an awardof $6,618.40. Judge Tenney denied the fee application. He rejected theSecretary’s argument that Fowler’s contest of the citations had ceasedprior to October 1, 1981, the effective date of EAJA, and that the feeapplication was not timely filed. However, the judge agreed with theSecretary that Fowler was not a prevailing party in a discretesubstantive portion of the proceeding. The judge based his holding onthe retention in the settlement agreement of four of the five citationitems concerning employees entering sewer manholes. He rejectedFowler’s contention that, in obtaining a sharp reduction in the penaltyamounts, Fowler prevailed in a discrete substantive portion of thecontest, because he attributed the reduction in penalties to Fowler’sabatement of the violation after the citations were issued. In sum, thejudge concluded that under the settlement Fowler was \”not a prevailingparty any more than was the Secretary.\” The judge did not reach otherarguments set forth by the Secretary, including contentions that theSecretary’s positions in issuing and in settling the citations weresubstantially justified, that Fowler unduly protracted the litigation,that fees incurred prior to the effective date of EAJA cannot beawarded, and that most of the fees sought by Fowler were not otherwiseallowable under EAJA.On review, Fowler contends that it was a prevailing party in thesettlement because it secured withdrawal of two section 5(a)(1) willfulitems, a reduction in penalties of 81 percent, and recharacterization oftwo item from willful to serious. It notes that the outcome here issimilar to the example given in the preamble to the Commission’s EAJArules at 46 Fed. Reg. 48,078, 48,079 (Sept. 30, 1981), which state thata party that obtains the vacation of one item of a three item citationprevails as to a discrete substantive portion of the proceeding.[[1]]The Secretary argues that Fowler was not a prevailing party under theterms of the settlement because the settlement incorporated most, if notall, of the improper procedures and actions that the Secretary found toexist at Fowler’s worksite, and Fowler represented that these had beenabated; thus, by obtaining abatement, the settlement effectuated theoverriding policy of the Act, assuring safe and healthful workingcoalitions. The Secretary asserts that penalties and thecharacterization of violations are merely tools used to secureabatement. The Secretary distinguishes this case from the example givenin the preamble to the Commission’s EAJA regulations that indicates thatan employer that obtains vacation of one out of three items hasprevailed as to a discrete substantive portion of the proceeding. Inthe typical case, which the preamble example presumably addresses, eachcitation item concerns a different workplace condition, according to theSecretary. However, in this case each of the citation items related toFowler’s practices concerning its employees working in sewer manholesthat possibly contained hazardous gases. Since Fowler agreed to abateat least most of these related deficiencies, it was not a prevailingparty, the Secretary reasons. The Secretary also maintains thatsettlement terms that lower penalties or reduce in severity thecharacterization of violations should not be held to make the employer aprevailing party. This would discourage the settlement of cases, sincemost settlements contain such provisions.IIIUnder the Equal Access to Justice Act, a private party that prevailsagainst the federal government in an administrative adjudication(including a contest of an OSHA citation) and meets certain limits onnet worth and number of employees is entitled to an award of attorneyfees and other expenses, unless the position of the government as aparty to the proceeding was substantially justified or specialcircumstances make an award unjust. 5 U.S.C. ?? 504(a)(1) &504(b)(1)(B); see generally Hocking Valley Steel Erectors, Inc., 83OSAHRC 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 OSHC1157, 1983 CCH OSHD ? 26,423 (No. 80-2903, 1983). The reports of theHouse and Senate Judiciary Committees that considered EAJA explained, asfollows, EAJA’s requirement that a party be \”prevailing\” in order toreceive a fee award:Under existing fee-shifting statutes, the definition of prevailing partyhas been the subject of litigation. It is the committee’s intentionthat the interpretation of the term in S. 265 be consistent with the lawthat has developed under existing statutes. Thus, the phrase\”prevailing party\” should not be limited to a victor only after entry ofa final judgment following a full trial on the merits. A party may bedeemed prevailing if he obtains a favorable settlement of his case,Foster v. Boorstin, 561 F.2d 340 (D.C. Cir. 1977); if the plaintiff hassought a voluntary dismissal of a groundless complaint, Corcoran v.Columbia Broadcasting System, Inc., 121 F.2d 575 (9th Cir. 1941); oreven if he does not ultimately prevail on all issues, Bradley v. SchoolBoard 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 thelosing party having exhausted its final appeal. A fee award may thus beappropriate where the party has prevailed on an interim order which wascentral to the case, Parker v. Matthews, 411 F. Supp. 1059, 1064 (D.D.C.1976), or where an interlocutory appeal is \”sufficiently significant anddiscrete to be treated as a separate unit\”, Van Hoomissen v. XeroxCorp., 503 F.2d 1131, 1133 (9th Cir. 1974).S. Rep. No. 96-253, 96th Cong., 1st Sess. 7 (1979), reprinted in Awardof Attorneys’ Fees Against the Federal Government: Hearings Before theSubcom. on Courts, Civil Liberties & the Administration of Justice, 96thCong., 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 purposeof obtaining a fee award, a party may be deemed prevailing even if hedoes not prevail on all issues. The question then becomes under whatcircumstances a party that prevailed only as to some aspects of a caseshould be eligible for fees. As the committee reports indicate,interpretation of the term \”prevailing party\” is to be consistent withthe law developed under other fee-shifting statutes. In considering afee award motion under the Civil Rights Attorney’s Fees Award Act of1976, 42 U.S.C. ? 1988, the First Circuit gave examples of employmentdiscrimination cases in which fees were awarded to plaintiffs who wereonly partially successful:Many courts have awarded fees to plaintiffs who have succeeded inproving class wide discrimination but failed to establish that they hadindividually 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); Saraciniv. Missouri Pac. R. Co., 431 F.Supp. 389 (E.D. Ark. 1977). Other courtshave awarded fees in the reverse situation in which plaintiff wassuccessful on his individual claim but did not prevail an his class wideallegations, Taylor v. Safeway Stores, Inc., 524 F.2d 263 (10th Cir.1975), or have awarded fees when plaintiff achieved the injunctiverelief she sought, but was unsuccessful as to her damage claim,Rosenfeld v. Southern Pacific Co., 519 F.2d 527 (9th Cir. 1975). InTaylor v. Goodyear Tire and Rubber Co., 6 E.P.D. ? 8696 (D.C. Ala.1973), plaintiffs were awarded attorney’s fees for prevailing onseniority rights and sick pay claim but losing on job classification andback pay issues. The court in Younger v. Glamorgan Pipe and FoundryCo., 418 F.Supp. 743 (W.D. Va. 1976), vacated on other grounds, 561 F.2d563 (4th Cir. 1977), awarded fees to plaintiffs despite the fact thatthey 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 casecited in the Senate and House committee reports, a defendant was deemedto have prevailed for purposes of a fee award even though it had won ononly an ancillary issue and the merits were yet to be decided. In thatcase the Equal Employment Opportunity Commission sought to intervene ina private employment discrimination suit both as to the issue ofdiscriminatory hiring and the issue of unlawful retaliation. The courtpermitted intervention only as to the latter issue. The EEOC appealedthis ruling and lost, and the Ninth Circuit awarded attorney fees to theemployer on the appeal, even though the issue on appeal was notdispositive of the case. The court explained:The [EEOC] also argues that Section 706(k) authorizes an award only tothe \”prevailing party.\” Although Xerox \”prevailed\” on thisinterlocutory appeal, it might still lose the principal case and thusnot \”prevail.\” We agree that litigation should not be dissected to thepoint that the losing party be permitted to recover attorney’s feesconnected with every procedural motion on which it prevails. But thisinterlocutory appeal is sufficiently significant and discrete to betreated as a separate unit. Thus, the fact that Xerox prevailed an thisappeal qualifies it as a \”prevailing party\” eligible for an award ofattorney’s fees connected with the appeal.503 F.2d at 1133.In Chicago Police Officers’ Association v. Stover, an employmentdiscrimination case that ended in a settlement, the Tenth Circuitexplained an award of fees to the plaintiffs as follows: \”[I]f asettlement provides some benefit to plaintiff or some vindication oftheir rights, then the congressional intent to encourage privateenforcement of civil rights will be furthered by the awarding of fees.\”It added: \”This is true even when both sides lose something and gainsomething, resulting in a ‘draw,’ as long as plaintiffs have receivedsubstantial 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 lawdeveloped under other fee-shifting statutes, the Commission rulesimplementing EAJA, at 29 C.F.R. ? 2204.106(a), provide: \”A prevailingapplicant may receive an award for fees and expenses incurred inconnection with a proceeding, or in a discrete substantive portion of aproceeding. . . .\” The preamble to the Commission’s rules explains thisprovision as follows:Paragraph (a) of ? 2204.106, \”Standards for awards,\” permits an award offees and expenses for a party that prevails in a \”discrete substantiveportion\” of a proceeding, omitting from corresponding model rule, ?0.105(a), the requirement that the portion on which the party prevailsbe \”significant\” as well as \”discrete.\” A similar change is made in ?2204.302(a). The issue of whether a particular portion of a case beforethe Commission is \”significant\” is a relative matter and one that shedslittle light on whether the award of fees and expenses incurred inlitigating that portion is warranted. If a party prevails in a\”discrete substantive portion\” of a Commission proceeding, that shouldbe a matter sufficient for an award, assuming the other requirements ofthe EAJ Act are met. For example, if the Secretary secures theaffirmance of two items contained in a three-item citation, while thecontesting employer persuades the Commission to vacate the third item,the latter item is a \”discrete substantive portion\” of the proceeding asto 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 rulepermitting a fee award under EAJA to a party who prevails in a discretesubstantive portion of a contest for two reasons. First, the settlementto which Fowler agreed included \”most, if not all\” of the improperprocedures and actions that the citations identified concerning Fowler’semployees working in sewer manholes. Second, the reductions that Fowlerobtained in characterizations of severity of violations and in penaltyamounts do not make it a prevailing party, because penalties andcharacterization of violations are merely tools used by the Secretary tosecure abatement of violations.We do not agree. In stressing that the settlement agreement left intactfour of the five items concerning employees working in sewer manholes,the Secretary appears to argue that he, rather than Fowler, prevailed asto the central issue in the case. He cites a district court decisionstating that, in determining whether to award fees, one shouldparticularly focus on \”whether the party [seeking fees] is thesuccessful party with respect to the central issue ….\”Parker v.Mathews, 411 F.Supp. 1059, 1064 (D.D.C. 1977). However, under the testthat we have adopted and that the Secretary acknowledges to be based onthe prevailing case law, the party seeking fees need not have prevailedas to the central issue in the case but only as to a discretesubstantive portion of the proceeding. The Supreme Court recently spokewith apparent approval of a similar teat, stating: \”A typicalformulation [of the standard for determining whether a party is aprevailing party] is the ‘plaintiffs may be considered \”prevailingparties\” for attorney’s fee purposes if they succeed on any significantissue in litigation which achieves some of the benefits the partiessought 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 werethe central issue, [[2]] the Secretary’s winning as to this issue (if hedid so) does not of itself bar Fowler from an award of fees. We,therefore, must examine whether the aspects of the case on which Fowlerprevailed constituted a discrete substantive portion of the proceedings.Although the settlement included four of the five items that concernedemployees working in sewer manholes, it omitted item 1 of the willfulcitation, which alleged that Fowler had not provided safety harnessesand lifelines to its employees entering sewer manholes containing toxicgases, and that thereby, Fowler had willfully failed to provide a placeof employment free from recognized hazards causing or likely to causedeath or serious physical harm. The violation alleged by this item warhardly minor or trivial, and it carried a proposed penalty of $2,800. Moreover, none of the other items concerning work in sewer, manholesaddressed the absence of safety harnesses and lifelines. By securingwithdrawal of item 1, Fowler clearly prevailed as to a portion of thecase that was both discrete and substantive.[[3]]The Secretary attempts to diminish the importance of the withdrawal ofitem 1 by asserting that, notwithstanding the absence of this item, thesettlement agreement included \”most, if not all\” of Fowler’s allegedlyimproper procedures, with respect to work in sewer manholes. If thisstatement is intended to mean that inclusion of item 1 in the settlementwas not necessary to obtain complete abatement of the alleged sewermanhole hazards, the statement appears to admit that item 1 was merelyduplicative of other citation item. An employer’s success in obtainingwithdrawal of a redundant citation item for which a separate penalty isproposed should not be minimized because of the very fact that the itemwas duplicative. The the contrary, the issuance of a citation withduplicative items, each bearing a separate penalty, may well be the typeof 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, ifcomplete abatement of the sewer manhole hazards could not beaccomplished without item 1, this underscores that, by obtainingwithdrawal of this item, Fowler prevailed as to an alleged violationthat was discrete and substantive.As to the Secretary’s second argument, the fact that he views penaltiesand the degree of severity of violations primarily as devices forobtaining abatement does not compel a conclusion that these aspects of acase are not substantive or that cited employers, who must pay suchpenalties, share his view. Whether reduction in penalties and severityof violations constitutes a discrete substantive portion of a case mustbe determined on the basis of all the relevant facts and circumstances. Under the Act, the maximum penalty for a serious violation is onlyone-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 thatis withdrawn. The reduction in penalty here, thus, appears to have beenpredicated largely on the withdrawal of one willful item that hadcarried a $2,800 penalty and the reduction from willful to serious oftwo others that had carried $7,280 in penalties. Moreover, themagnitude of the reduction to total penalties, from $11,200 to $2,080,was sizable. Additionally, characterization of a violation as willfulconnotes intentional wrongdoing. Under the Act, a violation is willfulif it is committed with intentional disregard of, or plain indifferenceto, the Act’s requirements. Mel Jarvis Construction Co., 81 OSAHRC89\/B13, 10 BNA OSHC 1052, 1981 CCH OSHD (P) 25,713 (No. 77-2100, 1981). Thus, the reduction in characterization of two violations from willfulto 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 reductionin total penalties, constitute a discrete substantive portion of theproceeding on which Fowler prevailed. While we agree with the court inVan Hoomissen v. Xerox Corp. that \”litigation should not be dissected tothe point that the losing party be permitted to recover attorney’s feesconnected with every procedural motion on which it prevails\” 503 F.2d at1133, our conclusion that Fowler was a prevailing party is not based onthe outcome of inconsequential issues or on an overly detailedexamination of every twist and turn of the litigation. We also mustdisagree with the Secretary’s point that Fowler should not be found tobe a prevailing party with respect to the lowering of penalties andrecharacterization of violations because to find Fowler a prevailingparty in these circumstances would discourage settlements, as suchprovisions often are contained in settlements. This argument is simplya refinement of the proposition that no fee awards should be made incases that settle. However, the language of the congressional committeereports quoted above is explicit that EAJA was intended to authorize feeawards in cases that terminate in settlement, and at least two federalcircuit courts of appeals have so held. See Environmental Defense Fundv. Watt, 722 F.2d 1081 (2d Cir. 1983); Citizens Coalition for BlockGrant Compliance v. Euclid, 717 F.2d (6th Cir. 1983). The sameconclusion 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 ofthe Secretary’s argument is not persuasive. If barred from recoveringattorney fees on the basis of reduced penalties and downgradedviolations in settlements, employers no doubt would be discouraged fromagreeing to settlements and more inclined to litigate cases toconclusion. Thus, while not precluding an award of fees on such a basisarguably may deter the Secretary from settling cases, a contrary rulewould deter employers from settling. Therefore, we do not believe thatholding Fowler to be a prevailing party partially on the basis of thereduced penalties and downgraded violations secured in a settlement willdeter the Secretary from agreeing to settle cases in the future.We recognize, of course, that in order for an attorney fee request in asettled case to be properly decided, it may be necessary for the judgeto address, at least to some extent, issues in the underlying contest ofcitations which, absent the fee application, the settlement would havemade unnecessary to consider. This appears particularly likely to occurin cases in which the judge must rule on the Secretary’s contention thathis position in the underlying case was substantially justified. Ananalogous situation prompted the court in Nadeau v. Helgemoe tocomment: \”In such circumstances, one might argue that the districtcourt cannot meaningfully decide the legal requirements that governdefendants’ conduct without conducting the very trial the consent decreewas signed to avoid.\” 581 F.2d at 281. Yet, as the Supreme Court hasrecently admonished: \”A request for attorney’s fees should not resultin a second major litigation.\” Hensley v. Eakerhart, 103 S.Ct. at1941. There is no easy solution to this dilemma. Based on thecircumstances of each case, the administrative law judge must draw onhis skill and experience to determine an appropriate means by which toreach a fair disposition of the fee request without, if possible,conducting a proceeding as lengthy and complex as the litigation thatthe settlement agreement sought to avoid. In many cases it should bepossible to decide fee applications on the basis of written submissionsand avoid the holding of an evidentiary hearing. See 29 C.F.R. ? 2204.307.IVAccordingly, the judge’s ruling that Fowler failed to prevail as to adiscrete substantive portion of the contest of the citations isreversed, and the judge’s ruling denying the fee application isvacated. The case is remanded for further proceedings consistent withthis decisionSO ORDERED.FOR THE COMMISSIONRay H. Darling, Jr.Executive SecretaryDATED: MAR 14 1984FOOTNOTES:[[1]] Additionally, Fowler submits that the judge erred in failing togrant its motion for \”summary judgment\” fees, i.e., fees it incurred inthe fee application litigation. However, Fowler never filed a supplementto its original fee application to request such fees. See HockingValley Steel Erectors, Inc., 81 OSAHRC 28\/A2, 11 BNA OSHC 1492, 1493n.2, 1983 CCH OSHD ? 26,549, p. 33,902 n.2 (No. 80-1463, 1983), appealdismissed per stipulation, No. 83-3560 (6th Cir. Nov. 11, 1983). Moreover, since Fowler did not prevail on its fee award request beforethe judge, the judge did not err, at that point in the litigation, infailing to award to Fowler fees incurred in the fee request proceedings.Fowler also asserts that the ALJ committed certain prejudicial errorsrelating to exhibits. Along with his answer to the fee application, theSecretary submitted one exhibit to show that the underlying case wasresolved before the effective date of EAJA and more than 30 days beforethe fee application was filed. He also submitted three exhibits to showthat his issuance of the citations and his later revision of them in thesettlement were substantially justified. One of these exhibitscontained the Secretary’s investigation file in the case and wassubmitted for in camera review, with the request that it be sealed. Onlyan expurgated version of this exhibit was served on Fowler.Fowler argued that the judge erred in that: (1) he failed to rule onFowler’s motion to strike the Secretary’s answer to the fee applicationon the ground that the Secretary did not serve on Fowler a complete copyof the exhibit containing the investigation file and failed to attach acertificate of service to his brief and dismissal motion; (2) the judgedid not rule on Fowler’s motions opposing the Secretary’s exhibits; and(3) the judge waited until after he denied Fowler’s fee application torule on the Secretary’s motion that the investigation file exhibit besealed, thereby depriving Fowler of access to the exhibit while the feeapplication was being considered.These arguments do not provide a basis for rehearsal, because the judgedid not rule adversely to Fowler on the issues to which the exhibitspertained. The judge rejected the Secretary’s arguments that theunderlying case was resolved before EAJA became effective and that thefee application was filed late, and the judge did not reach the argumentthat the citation was substantially justified. Also, the investigationfile exhibit ultimately was released to Fowler while this case waspending an review and Fowler has not sought to raise any additionalpoints 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 priorto the notice of contest and, therefore, prior to the filing of theSecretary’s complaint.[[3]] In addition to this item, Fowler asserts that it obtainedwithdrawal of one other alleged willful section 5(a)(1) violation.However, the second section 5(a)(1) charge to which Fowler refers vasalleged merely as an alternative basis for finding in violation conductdescribed in item 2 of the willful citation. Since item 2 of thewillful citation was retained in the settlement agreement asan alleged violation of a standard, the deletion of the alternativesection 5(a)(1) theory is not a discrete substantive portion of the caseon which Fowler prevailed.”