“Docket No. 80-3699 SECRETARY OF LABOR, Complainant,v. H.P. FOWLER CONTRACTING CORPORATION, Respondent.OSHRC Docket No. 80-3699DECISIONBefore:\u00a0 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 substantiveportion of a proceeding in which it contested certain OSHA citations, when the proceedingwas resolved by a settlement agreement under which one citation item was withdrawn, twowillful items were recharacterized as serious, the total penalty was reduced from $11,200to $2,080, and Fowler withdrew its contest as to five citation items.\u00a0 Under theEqual 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 prevailingparty as to at least a discrete substantive portion of the proceeding in order to beawarded fees and expenses, including attorney fees, incurred in the proceeding.\u00a0 See29 C.F.R. ?? 2204.106(a) & 2204.201(a).\u00a0 Chief Administrative Law Judge Paul A.Tenney ruled that Fowler was not a prevailing party as to a discrete substantive portionof the proceeding and denied Fowler’s application for $6,618 in attorney fees and expensesunder EAJA.\u00a0 We reverse the judge’s ruling that Fowler was not a prevailing party andremand the case for further proceedings.IFollowing an inspection of Fowler’s worksite in Pharr, Texas, by an Occupational Safetyand Health Administration (OSHA) compliance officer, citations were issued to Fowleralleging three willful violations, two serious violations, and one non-serious violationof the Occupational Safety and Health Act of 1970, 29 U.S.C. ?? 651-678 (\”theAct\”).\u00a0 The alleged willful and serious violations concerned Fowler’s practicesregarding its employees’ entering sewer manholes that could lack oxygen or contain toxicflammable gases.\u00a0 The non-serious citation alleged that Fowler failed to maintain alog of occupational injuries and illnesses. Penalties totaling $11,200 were proposed forthe alleged willful and serious violations, while no penalty was proposed for the allegednon-serious violation.Fowler contested the citations.\u00a0 Following vigorous litigation up to thecourt of appeals concerning the Secretary’s late filing of his complaint, but prior to theholding of an evidentiary hearing, Fowler and the Secretary reached a settlement of thecase.\u00a0 Under the settlement agreement, the alleged willful and serious violationswere revised and restated as items of one serious citation, as follows:(1) Item 1 of the willful citation was omitted from the revised citation.\u00a0 It hadalleged that Fowler violated section 5(a)(1) of the Act by not providing safety harnessesand lifelines to its employees entering sewer manholes known to contain toxic gases and tobe deficient in oxygen.\u00a0 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 performingfrequent tests in sewer manholes to assure that work areas were free of toxic andflammable gases and not deficient in oxygen.\u00a0 A penalty of $1,680 had been proposedfor this item.\u00a0 Under the settlement agreement, this item was recharacterized as aserious violation, the standard alleged to be violated was amended to include both section1910.134(a) and section 1910.134(b)(8), and the alternative section 5(a)(1) allegation wasdeleted.(3) Item 3 of the willful citation, for which a penalty of $5,600 had beenproposed, 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 sewermanholes were known to contain hydrogen sulfide and methane gases and oxygen deficiencies.\u00a0This item was recharacterized as a serious violation and reworded to state thatsewer manholes \”sometimes contain hydrogen sulfide and methane gases and oxygendeficiency,\” 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 rescuerespirator was present when Fowler’s employees were working in a sewer manhole.\u00a0 Apenalty of $560 had been proposed for this item.\u00a0 Under the settlement agreement,this item was retained without alteration, except that the standard violated wasidentified as section \”1910.134(a)(3)(3)(i)\” [sic] and, as in the prior item,language that sewer manholes \”sometimes contain\” oxygen deficiencies andhydrogen 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 thenature of hazards involved, necessary precautions, and use of protective and emergencyequipment.\u00a0 A penalty of $560 also had been proposed for this item.\u00a0 Under thesettlement agreement, this item was retained without alteration, except that, again,language that sewer manholes \”sometimes contain\” oxygen deficiencies andhydrogen 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 individualcitation item but reduced the total penalty to $2,080.\u00a0 In addition, the settlementagreement did not alter the non-serious citation.\u00a0 The agreement recited that Fowlerstated that the conditions described in the amended citation had been corrected. \u00a0Fowler agreed in the 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, Fowler filed an applicationfor fees and expenses under EAJA, seeking an award of $6,618.40.\u00a0 Judge Tenney deniedthe fee application. He rejected the Secretary’s argument that Fowler’s contest of thecitations had ceased prior to October 1, 1981, the effective date of EAJA, and that thefee application was not timely filed.\u00a0 However, the judge agreed with the Secretarythat Fowler was not a prevailing party in a discrete substantive portion of theproceeding.\u00a0 The judge based his holding on the retention in the settlement agreementof four of the five citation items concerning employees entering sewer manholes.\u00a0 Herejected 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 attributedthe reduction in penalties to Fowler’s abatement of the violation after the citations wereissued. In sum, the judge concluded that under the settlement Fowler was \”not aprevailing party any more than was the Secretary.\”\u00a0 The judge did not reachother arguments set forth by the Secretary, including contentions that the Secretary’spositions in issuing and in settling the citations were substantially justified, thatFowler unduly protracted the litigation, that fees incurred prior to the effective date ofEAJA cannot be awarded, 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 the settlementbecause it secured withdrawal of two section 5(a)(1) willful items, a reduction inpenalties of 81 percent, and recharacterization of two item from willful to serious.\u00a0 It notes that the outcome here is similar to the example given in the preamble tothe Commission’s EAJA rules at 46 Fed. Reg. 48,078, 48,079 (Sept. 30, 1981), which statethat a party that obtains the vacation of one item of a three item citation prevails as toa discrete substantive portion of the proceeding.[[1]] The Secretary argues that Fowler was not a prevailing party under the terms of thesettlement because the settlement incorporated most, if not all, of the improperprocedures and actions that the Secretary found to exist at Fowler’s worksite, and Fowlerrepresented that these had been abated; thus, by obtaining abatement, the settlementeffectuated the overriding policy of the Act, assuring safe and healthful workingcoalitions.\u00a0 The Secretary asserts that penalties and the characterization ofviolations are merely tools used to secure abatement.\u00a0 The Secretary distinguishesthis case from the example given in the preamble to the Commission’s EAJA regulations thatindicates that an employer that obtains vacation of one out of three items has prevailedas to a discrete substantive portion of the proceeding.\u00a0 In the typical case, whichthe preamble example presumably addresses, each citation item concerns a differentworkplace condition, according to the Secretary.\u00a0 However, in this case each of thecitation items related to Fowler’s practices concerning its employees working in sewermanholes that possibly contained hazardous gases.\u00a0 Since Fowler agreed to abate atleast most of these related deficiencies, it was not a prevailing party, the Secretaryreasons.\u00a0 The Secretary also maintains that settlement terms that lower penalties orreduce in severity the characterization of violations should not be held to make theemployer a prevailing party.\u00a0 This would discourage the settlement of cases, sincemost settlements contain such provisions.III Under the Equal Access to Justice Act, a private party that prevails against the federalgovernment in an administrative adjudication (including a contest of an OSHA citation) andmeets certain limits on net worth and number of employees is entitled to an award ofattorney fees and other expenses, unless the position of the government as a party to theproceeding was substantially justified or special circumstances make an award unjust.\u00a0 5 U.S.C. ?? 504(a)(1) & 504(b)(1)(B); see generally Hocking Valley SteelErectors, 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); FederalClearing Die Casting Co., 83 OSAHRC 7\/D2, 11 BNA OSHC 1157, 1983 CCH OSHD ? 26,423 (No.80-2903, 1983).\u00a0 The reports of the House and Senate Judiciary Committees thatconsidered 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 hasbeen the subject of litigation.\u00a0 It is the committee’s intention that theinterpretation of the term in S. 265 be consistent with the law that has developed underexisting statutes.\u00a0 Thus, the phrase \”prevailing party\” should not belimited to a victor only after entry of a final judgment following a full trial on themerits.\u00a0 A party may be deemed prevailing if he obtains a favorable settlement of hiscase, Foster v. Boorstin, 561 F.2d 340 (D.C. Cir. 1977); if the plaintiff has sought avoluntary 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 allissues, 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 exhaustedits final appeal.\u00a0 A fee award may thus be appropriate where the party has prevailedon 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 anddiscrete to be treated as a separate unit\”, Van Hoomissen v. Xerox Corp., 503 F.2d1131, 1133 (9th Cir. 1974).S. Rep. No. 96-253, 96th Cong., 1st Sess. 7 (1979), reprinted in Award ofAttorneys’ Fees Against the Federal Government: Hearings Before the Subcom. on Courts,Civil Liberties & the Administration of Justice, 96th Cong., 2d Sess. at 243 (hereincited as Hearings); H.R. Rep. No. 96-1418, 96th Cong., 2d Sess. 11 (1980), reprinted inHearings 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 ofobtaining a fee award, a party may be deemed prevailing even if he does not prevail on allissues.\u00a0 The question then becomes under what circumstances a party that prevailedonly as to some aspects of a case should be eligible for fees.\u00a0 As the committeereports indicate, interpretation of the term \”prevailing party\” is to beconsistent with the law developed under other fee-shifting statutes.\u00a0 In consideringa 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 feeswere awarded to plaintiffs who were only partially successful:Many courts have awarded fees to plaintiffs who have succeeded in proving class widediscrimination but failed to establish that they had individually suffered injury and wereentitled to personal remedies.\u00a0 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).\u00a0 Other courts have awarded fees in thereverse situation in which plaintiff was successful on his individual claim but did notprevail an his class wide allegations, Taylor v. Safeway Stores, Inc., 524 F.2d 263 (10thCir. 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.2d527 (9th Cir. 1975).\u00a0 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 seniorityrights and sick pay claim but losing on job classification and back pay issues.\u00a0 Thecourt 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 despitethe 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 citedin the Senate and House committee reports, a defendant was deemed to have prevailed forpurposes of a fee award even though it had won on only an ancillary issue and the meritswere yet to be decided.\u00a0 In that case the Equal Employment Opportunity Commissionsought to intervene in a private employment discrimination suit both as to the issue ofdiscriminatory hiring and the issue of unlawful retaliation.\u00a0 The court permittedintervention only as to the latter issue.\u00a0 The EEOC appealed this ruling and lost,and the Ninth Circuit awarded attorney fees to the employer on the appeal, even though theissue on appeal was not dispositive of the case.\u00a0 The court explained:The [EEOC] also argues that Section 706(k) authorizes an award only to the\”prevailing party.\”\u00a0 Although Xerox \”prevailed\” on thisinterlocutory appeal, it might still lose the principal case and thus not\”prevail.\”\u00a0 We agree that litigation should not be dissected to the pointthat the losing party be permitted to recover attorney’s fees connected with everyprocedural motion on which it prevails. But this interlocutory appeal is sufficientlysignificant and discrete to be treated as a separate unit.\u00a0 Thus, the fact that Xeroxprevailed an this appeal qualifies it as a \”prevailing party\” eligible for anaward of attorney’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 Circuit explained an award offees to the plaintiffs as follows: \”[I]f a settlement provides some benefit toplaintiff or some vindication of their rights, then the congressional intent to encourageprivate enforcement of civil rights will be furthered by the awarding of fees.\” Itadded: \”This is true even when both sides lose something and gain something,resulting in a ‘draw,’ as long as plaintiffs have received substantial benefits.\”\u00a0 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 underother 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 andexpenses incurred in connection with a proceeding, or in a discrete substantive portion ofa proceeding. . . .\” The preamble to the Commission’s rules explains this provisionas follows:Paragraph (a) of ? 2204.106, \”Standards for awards,\” permits anaward of fees and expenses for a party that prevails in a \”discrete substantiveportion\” of a proceeding, omitting from corresponding model rule, ? 0.105(a), therequirement that the portion on which the party prevails be \”significant\” aswell as \”discrete.\”\u00a0 A similar change is made in ? 2204.302(a).\u00a0 Theissue of whether a particular portion of a case before the Commission is\”significant\” is a relative matter and one that sheds little light on whetherthe award of fees and expenses incurred in litigating that portion is warranted.\u00a0 Ifa 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 theEAJ Act are met. For example, if the Secretary secures the affirmance of two itemscontained in a three-item citation, while the contesting employer persuades the Commissionto vacate the third item, the latter item is a \”discrete substantive portion\” ofthe 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 awardunder EAJA to a party who prevails in a discrete substantive portion of a contest for tworeasons.\u00a0 First, the settlement to which Fowler agreed included \”most, if notall\” of the improper procedures and actions that the citations identified concerningFowler’s employees working in sewer manholes. Second, the reductions that Fowler obtainedin characterizations of severity of violations and in penalty amounts do not make it aprevailing party, because penalties and characterization of violations are merely toolsused by the Secretary to secure abatement of violations.We do not agree.\u00a0 In stressing that the settlement agreement left intact four of thefive items concerning employees working in sewer manholes, the Secretary appears to arguethat he, rather than Fowler, prevailed as to the central issue in the case.\u00a0 He citesa district court decision stating that, in determining whether to award fees, one shouldparticularly focus on \”whether the party [seeking fees] is the successful party withrespect to the central issue ….\”Parker v. Mathews, 411 F.Supp. 1059, 1064 (D.D.C.1977).\u00a0 However, under the test that we have adopted and that the Secretaryacknowledges to be based on the prevailing case law, the party seeking fees need not haveprevailed as to the central issue in the case but only as to a discrete substantiveportion of the proceeding.\u00a0 The Supreme Court recently spoke with apparent approvalof a similar teat, stating:\u00a0 \”A typical formulation [of the standard fordetermining whether a party is a prevailing party] is the ‘plaintiffs may be considered\”prevailing parties\” for attorney’s fee purposes if they succeed on anysignificant issue in litigation which achieves some of the benefits the parties sought inbringing suit. ‘\” Hensley v. Eckerhart, 103 S.Ct. 1933, 1919 (1983) (footnoteomitted), quoting Nadeau v. Helgemoe, 581 F.2d 275, 278-279 (1st Cir. 1978).\u00a0 Thus,under our test, even if abatement were the central issue, [[2]] the Secretary’s winning asto this issue (if he did so) does not of itself bar Fowler from an award of fees. \u00a0We, therefore, must examine whether the aspects of the case on which Fowler prevailedconstituted 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 willful citation, whichalleged that Fowler had not provided safety harnesses and lifelines to its employeesentering sewer manholes containing toxic gases, and that thereby, Fowler had willfullyfailed to provide a place of employment free from recognized hazards causing or likely tocause death or serious physical harm.\u00a0 The violation alleged by this item war hardlyminor or trivial, and it carried a proposed penalty of $2,800.\u00a0 Moreover, none of theother items concerning work in sewer, manholes addressed the absence of safety harnessesand lifelines.\u00a0 By securing withdrawal of item 1, Fowler clearly prevailed as to aportion of the case that was both discrete and substantive.[[3]]The Secretary attempts to diminish the importance of the withdrawal of item 1by asserting that, notwithstanding the absence of this item, the settlement agreementincluded \”most, if not all\” of Fowler’s allegedly improper procedures, withrespect to work in sewer manholes.\u00a0 If this statement is intended to mean thatinclusion of item 1 in the settlement was not necessary to obtain complete abatement ofthe alleged sewer manhole hazards, the statement appears to admit that item 1 was merelyduplicative of other citation item.\u00a0 An employer’s success in obtaining withdrawal ofa redundant citation item for which a separate penalty is proposed should not be minimizedbecause of the very fact that the item was duplicative.\u00a0 The the contrary, theissuance of a citation with duplicative items, each bearing a separate penalty, may wellbe the type of abusive practice that EAJA was intended to deter.\u00a0 See H.R. Rep. No.96-1418, 96th Cong., 2d Sess. at 14, reprinted in Hearings at 345, and (1980] U.S. CodeCong. & Ad. News at 4993.\u00a0 On the other hand, if complete abatement of the sewermanhole hazards could not be accomplished without item 1, this underscores that, byobtaining withdrawal of this item, Fowler prevailed as to an alleged violation that wasdiscrete and substantive.As to the Secretary’s second argument, the fact that he views penalties and\u00a0 the degree of severity of violations primarily as devices for obtaining abatementdoes not compel a conclusion that these aspects of a case are not substantive or thatcited employers, who must pay such penalties, share his view.\u00a0 Whether reduction inpenalties and severity of violations constitutes a discrete substantive portion of a casemust be determined on the basis of all the relevant facts and circumstances.\u00a0 Underthe Act, the maximum penalty for a serious violation is only one-tenth of the maximum fora willful violation, see 29 U.S.C. ?? 666(a) & (b), and, of course, no penalty maybe imposed for an item that is withdrawn.\u00a0 The reduction in penalty here, thus,appears to have been predicated largely on the withdrawal of one willful item that hadcarried a $2,800 penalty and the reduction from willful to serious of two others that hadcarried $7,280 in penalties.\u00a0 Moreover, the magnitude of the reduction to totalpenalties, from $11,200 to $2,080, was sizable. Additionally, characterization of aviolation as willful connotes intentional wrongdoing.\u00a0 Under the Act, a violation iswillful if it is committed with intentional disregard of, or plain indifference to, theAct’s requirements. Mel Jarvis Construction Co., 81 OSAHRC 89\/B13, 10 BNA OSHC 1052, 1981CCH OSHD (P) 25,713 (No. 77-2100, 1981).\u00a0 Thus, the reduction in characterization oftwo violations from willful to serious is a matter of some importance.\u00a0 Under thesecircumstances, we conclude that, taken as a whole, the withdrawal of one willful item, thedowngrading 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 shouldnot be dissected to the point that the losing party be permitted to recover attorney’sfees 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 ofinconsequential issues or on an overly detailed examination of every twist and turn of thelitigation.\u00a0 We also must disagree with the Secretary’s point that Fowler should notbe found to be a prevailing party with respect to the lowering of penalties andrecharacterization of violations because to find Fowler a prevailing party in thesecircumstances would discourage settlements, as such provisions often are contained insettlements.\u00a0 This argument is simply a refinement of the proposition that no feeawards should be made in cases that settle.\u00a0 However, the language of thecongressional committee reports quoted above is explicit that EAJA was intended toauthorize fee awards in cases that terminate in settlement, and at least two federalcircuit courts of appeals have so held.\u00a0 See Environmental Defense Fund v. Watt, 722F.2d 1081 (2d Cir. 1983); Citizens Coalition for Block Grant Compliance v. Euclid, 717F.2d (6th Cir. 1983).\u00a0 The same conclusion also has been reached under other feeaward statutes.\u00a0 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); Fosterv. Boorstin, 561 F.2d 340 (D.C. Cir. 1977).\u00a0 Additionally, aside from the question ofstatutory intent, the logic of the Secretary’s argument is not persuasive. If barred fromrecovering attorney fees on the basis of reduced penalties and downgraded violations insettlements, employers no doubt would be discouraged from agreeing to settlements and moreinclined to litigate cases to conclusion.\u00a0 Thus, while not precluding an award offees on such a basis arguably may deter the Secretary from settling cases, a contrary rulewould deter employers from settling.\u00a0 Therefore, we do not believe that holdingFowler to be a prevailing party partially on the basis of the reduced penalties anddowngraded violations secured in a settlement will deter the Secretary from agreeing tosettle 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 judge to address, atleast to some extent, issues in the underlying contest of citations which, absent the feeapplication, the settlement would have made unnecessary to consider.\u00a0 This appearsparticularly likely to occur in cases in which the judge must rule on the Secretary’scontention that his position in the underlying case was substantially justified.\u00a0 Ananalogous situation prompted the court in Nadeau v. Helgemoe to comment:\u00a0 \”Insuch circumstances, one might argue that the district court cannot meaningfully decide thelegal requirements that govern defendants’ conduct without conducting the very trial theconsent decree was signed to avoid.\” 581 F.2d at 281.\u00a0 Yet, as the Supreme Courthas recently admonished:\u00a0 \”A request for attorney’s fees should not result in asecond major litigation.\”\u00a0 Hensley v. Eakerhart, 103 S.Ct. at 1941.\u00a0 Thereis no easy solution to this dilemma.\u00a0 Based on the circumstances of each case, theadministrative law judge must draw on his skill and experience to determine an appropriatemeans 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 settlementagreement sought to avoid.\u00a0 In many cases it should be possible to decide feeapplications on the basis of written submissions and avoid the holding of an evidentiaryhearing.\u00a0 See 29 C.F.R. ? 2204.307.IVAccordingly, the judge’s ruling that Fowler failed to prevail as to a discrete substantiveportion of the contest of the citations is reversed, and the judge’s ruling denying thefee application is vacated.\u00a0 The case is remanded for further proceedings consistentwith this decision SO ORDERED.FOR THE COMMISSIONRay H. Darling, Jr.Executive SecretaryDATED:\u00a0 MAR 14 1984FOOTNOTES: [[1]] Additionally, Fowler submits that the judge erred in failing to grantits motion for \”summary judgment\” fees, i.e., fees it incurred in the feeapplication litigation. However, Fowler never filed a supplement to its original feeapplication to request such fees.\u00a0 See Hocking Valley Steel Erectors, Inc., 81 OSAHRC28\/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). \u00a0Moreover, since Fowler did not prevail on its fee award request before the judge, thejudge did not err, at that point in the litigation, in failing to award to Fowler feesincurred in the fee request proceedings.Fowler also asserts that the ALJ committed certain prejudicial errors relating toexhibits.\u00a0 Along with his answer to the fee application, the Secretary submitted oneexhibit to show that the underlying case was resolved before the effective date of EAJAand more than 30 days before the fee application was filed.\u00a0 He also submitted threeexhibits to show that his issuance of the citations and his later revision of them in thesettlement were substantially justified.\u00a0 One of these exhibits contained theSecretary’s investigation file in the case and was submitted for in camera review, withthe request that it be sealed. Only an expurgated version of this exhibit was served onFowler. Fowler argued that the judge erred in that:\u00a0 (1) he failed to rule on Fowler’s motionto strike the Secretary’s answer to the fee application on the ground that the Secretarydid not serve on Fowler a complete copy of the exhibit containing the investigation fileand failed to attach a certificate of service to his brief and dismissal motion; (2) thejudge did not rule on Fowler’s motions opposing the Secretary’s exhibits; and (3) thejudge waited until after he denied Fowler’s fee application to rule on the Secretary’smotion that the investigation file exhibit be sealed, thereby depriving Fowler of accessto the exhibit while the fee application was being considered.These arguments do not provide a basis for rehearsal, because the judge did not ruleadversely to Fowler on the issues to which the exhibits pertained.\u00a0 The judgerejected the Secretary’s arguments that the underlying case was resolved before EAJAbecame effective and that the fee application was filed late, and the judge did not reachthe argument that the citation was substantially justified.\u00a0 Also, the investigationfile exhibit ultimately was released to Fowler while this case was pending an review andFowler has not sought to raise any additional points based on the information contained inthe exhibit.[[2]] It is not clear that in fact abatement was an issue in the case. \u00a0Fowler asserts without contradiction that the hazards were abated prior to the notice ofcontest and, therefore, prior to the filing of the Secretary’s complaint.[[3]] In addition to this item, Fowler asserts that it obtained withdrawal ofone 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 inviolation conduct described in item 2 of the willful citation.\u00a0 Since item 2 of thewillful citation was retained in the settlement agreement asan alleged violation of a standard, the deletion of the alternative section 5(a)(1) theoryis not a discrete substantive portion of the case on which Fowler prevailed.”