“SECRETARY OF LABOR,Complainant,v.K.D.K. UPSET FORGING, INC.,Respondent.OSHRC Docket No. 81-1932_DECISION_BEFORE: BUCKLEY, Chairman, RADER and WALL, Commissioners.BY THE COMMISSION:This case is before the Occupational Safety and Health Review Commissionunder 29 U.S.C. ? 661(j), section 12(j) of the Occupational Safety andHealth Act of 1970, 29 U.S.C. ?? 651-678 (\”the Act\”). The Commission isan adjudicatory agency, independent of the Department of Labor and theOccupational Safety and Health Administration. It was established toresolve disputes arising out of enforcement actions brought by theSecretary of Labor under the Act and has no regulatory functions. Seesection 10(c) of the Act, 29 U.S.C. ? 659(c).The issue before the Commission is whether Administrative Law JudgeSidney J. Goldstein erred in denying the employer’s motion andapplication for attorneys’ fees under the Equal Access to Justice Act(EAJA), 5 U.S.C. ? 504. For reasons that follow, we reverse the judgeand remand for a determination of the appropriate award.IFollowing an OSHA inspection, the Secretary issued K.D.K. Upset Forging,Inc., a citation that alleged a violation of 29 C.F.R. ? 1903.2(a)(1) onthe grounds that the employer failed to post an OSHA notice informingemployees of their rights and obligations under the Act. The citationstated that \”immediate\” abatement was required; no penalty was proposed.K.D.K. filed a timely notice of contest. Further, in its answer to theSecretary’s complaint, K.D.K. denied that it had committed a violation.Thus, the only controverted matter at issue was whether K.D.K. hadfailed to post the OSHA notice. Abatement was an issue only if there wasa violation.Before the case proceeded to hearing, the Secretary filed a motion towithdraw the citation. The motion gave two reasons:1. Respondent has represented that abatement of the cited condition hasbeen achieved.2. Based upon this representation, Complainant has determined that theinstant case is an improper vehicle for litigation.K.D.K. did not respond to the motion, which was granted on May 18, 1982.K.D.K. then filed a motion and application for attorneys’ fees under theEAJA in the amount of $600.[[1]] Portions of the application requestedreimbursement for fees and expenses incurred before October 1, 1981, theeffective date of the EAJA.Judge Goldstein rejected the application on the grounds that K.D.K. wasnot the prevailing party and that the Secretary was substantiallyjustified in issuing the citation. The judge noted the representation inthe motion to withdraw that the alleged violation had been \”abated,\” andrelied on the citation’s allegation that K.D.K. had not posted therequisite OSHA notice before the inspection. The judge also observedthat K.D.K. did not allege that it was in compliance with the standard,or offer any reason for its failure to comply.IIUnder 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); H.P. Fowler Contracting Corp., 84 OSAHRC 9\/A2, 11 BNA OSHC1841, 1843, 1983-84 CCH OSHD ? 26,830, p. 34,356 (No. 80- 3699, 1984).The threshold issue in this case is whether the applicant was a\”prevailing party\” in its dispute with the government. See 5 U.S.C. ?504(a)(1). Although the term is not defined in the EAJA, an applicant isconsidered to be the \”prevailing party\” for the purpose of attorneys’fees statutes if it has succeeded on any of the significant issuesinvolved in the litigation, and if, as a result of that success, theapplicant has achieved some of the benefit it sought in the litigation.Hensley v. Eckerhart, 103 S.Ct. 1933, 1939 (1983); Busche v. Burke, 649F.2d 509, 521 (7th Cir. 1981); H.P. Fowler Contracting Corp., 11 BNAOSHC at 1845, 1983-84 CCH OSHD at p. 34,358.K.D.K. argues that it must be deemed the prevailing party because itachieved the precise benefit it sought in filing its notice of contest:the vacation of the citation. The Secretary, on the other hand, arguesthat abatement is the sine qua non of OSHA’s enforcement effort, thatabatement was the objective he sought in litigation, and that thecitation was withdrawn only after achievement of that goal.We find that K.D.K. showed that it was the prevailing party. First,K.D.K’s primary purpose in filing its notice of contest was to have thecitation vacated. That purpose has been achieved. Second, tangiblebenefits have accrued to K.D.K. as a result of the withdrawal. With thecitation withdrawn, K.D.K. has avoided an abatement order that could beenforceable through failure-to-abate penalties under sections 10(b),11(b) and 17(d) of the Act, 29 U.S.C. ?? 659(b), 660(b), 666(d). It hasalso avoided assessment of a penalty, which is mandatory for a postingviolation under section 17(i) of the Act, 29 U.S.C. ? 666(i)(1982).[[2]] The withdrawn citation also cannot serve as a foundationfor a finding under section 17(a) of the Act, 29 U.S.C. ? 666(a), thatK.D.K. \”repeatedly\” violated the standard, nor can it be considered aspart of K.D.K.’s history of previous violations under section 17(j) ofthe Act, 29 U.S.C. ? 666(j) (1982).Despite these benefits, the Secretary argues that he prevailed becausethe citation was withdrawn only after he achieved his primary goal ofabatement. Even assuming there was a violation here, the Secretary’sargument falls short for two reasons. First, that the Secretary may haveachieved his objective does not nullify the fact that K.D.K. achievedits own. Even if abatement were the central issue, the Secretary’salleged success does not of itself bar an employer from an award of feesif the employer was successful on any significant issue that achievessome of the benefits the employer sought in contesting the citation.H.P. Fowler Contracting Corp., 11 BNA OSHC at 1875, 1983-84 CCH OSHD atpp. 34,358. As our discussion above makes clear, K.D.K. was successfulon the only significant issues other than abatement.Second, implicit in the Secretary’s argument is the premise that for KDKto establish it was the \”prevailing party,\” K.D.K. must show that it didnot abate. The only way for K.D.K. to do this is to show either (1) thatit was in violation of the standard and remains so, or (2) that it isnot and never was in violation. As to (1), the fundamental absurdity ofrequiring an employer to prove its own misconduct to establish itself asa \”prevailing party\” needs no elaboration. As to (2), requiring theemployer to prove its innocence would impermissibly shift to theemployer the Secretary’s burden of showing that the citation was\”substantially justified.\”IIIBecause K.D.K. has established that it was the prevailing party, it isentitled to an award of fees and costs unless the Secretary establishesthat his position was substantially justified or the record showsspecial circumstances which would make an award unjust. Hocking ValleySteel Erectors, Inc., 83 OSAHRC 28\/A2, 11 BNA OSHC 1492, 1983-84 CCHOSHD ? 26,549 (No. 80- 1463, 1983); 29 C.F.R. ? 2204.106(a)&(b).The Secretary argues that the citation was substantially justified. Onthe assumption that an employer’s representation of \”abatement\” impliesthat a violative condition existed, he contends that K.D.K.’srepresentation that it abated violated its \”pro forma\” denial in itsanswer that a violation existed. Moreover, he argues, his decision towithdraw should not be taken to imply that the citation was notsubstantially justified. The Secretary observes that manyconsiderations, such as additional time and expense needed to pursue thematter, enter into a decision to withdraw.K.D.K. vigorously denies that it ever represented that it abated, andargues that it was error for the judge to rely on the Secretary’sunsupported allegation that abatement had occurred. Moreover, K.D.K.argues, the judge improperly ignored its answer and accepted at facevalue the allegations in the citation in finding that the citation wassubstantially justified.To determine whether the Secretary established that its position wassubstantially justified, the Commission must look to the record. 29C.F.R. ? 2204, 307(a)(1). If the Secretary’s contentions are based onfactual assertions not already supported by the record, he may filesupporting affidavits or request further proceedings to establish thoseassertions. See 29 C.F.R. 2204.303(c).The record lacks any evidence that would support a finding that theSecretary was substantially justified in issuing the citation.Certainly, we cannot accept as true the allegation of a violation in thecitation and complaint since it was that allegation that wascontroverted and at issue. What the Secretary needed but failed toproduce was some evidence that could support his claim that he wasjustified in believing that a posting violation had existed. This couldhave been accomplished by submitting an affidavit from the complianceofficer regarding what he learned during the course of his inspection.Such an affidavit would have gone far to show that the decision to issuethe citation was substantially justified.Similarly, we cannot accept the Secretary’s unsupported allegation thatK.D.K. represented that it had \”abated\” the violation. While such arepresentation may have implied that a violative condition had onceexisted, K.D.K. denies ever having made such a statement, and theSecretary has failed to introduce any evidence to support his claim thatthe representation was made. Again, the Secretary could have submittedan affidavit from the official to whom the representation was made.However, no attempt was made to supplement the record.Given the lack of evidence or supporting documentation, we can onlyconclude that the Secretary failed to establish that his position in thecase was substantially justified.IVDespite his failure to establish that his position was \”substantiallyjustified,\” the Secretary argues that it would be exalting form oversubstance to hold that, after expeditiously withdrawing the citation, heis liable for attorneys’ fees. The Secretary contends that such aholding would rob him of prosecutorial discretion, compelling him toproceed to trial even when he has nothing more to gain. This, theSecretary states, was not the intent of the EAJA.Even when an applicant is the prevailing party and the government failsto establish that its position was substantially justified, theadjudicative agency may deny an award if special circumstances make anaward unjust. 5 U.S.C. ? 504(a)(1). We do not agree with the Secretarythat the withdrawal of the citation here qualifies as such a specialcircumstance.The purpose of the EAJA is to ensure that parties will not be deterredfrom defending against unjustified government action because of theexpense involved in securing the vindication of their rights. H.R.Report No. 120, Part I, 99th Cong. 1st Sess. 4 (1985), reprinted in 1985U.S. Code Cong. & Ad. News 132, 133. To allow the Secretary to withdrawwithout EAJA liability could subject an employer to substantialunrecoverable costs, especially if withdrawal takes place afterdiscovery. This would violate the spirit of the EAJA and discourageemployers from seeking vindication of their rights. Indeed, thelegislative history of the EAJA makes clear that it was never the intentof Congress to apply the EAJA only to those proceedings litigated to aconclusion:A party may be deemed prevailing if he obtains a favorable settlement ofhis case . . .; if the plaintiff has sought a voluntary dismissal of agroundless complaint . . .; or even if he does not ultimately prevail onall issues . . .[Citations omitted.]H.R. Rep. No. 1418, 96th Cong., 2d Sess. 11 (1980), reprinted in 1980U.S. Code Cong. & Ad. News 4990.The Secretary’s additional argument that finding him liable for feesafter withdrawal would encourage him to proceed to hearing lacks merit.First, if the citation was not justified, prolonging the proceedingswould only increase the potential EAJA award. Second, if the Secretaryhad been justified in issuing the citation, but was to learn later thathis position lacks merit, his failure to terminate the case when thelack of merit was discovered would subject him to EAJA liability forcosts incurred from that point forth. See Hocking Valley Steel Erectors,11 BNA OSHC at 1497, 1983-84 CCH OSHD at pp. 33,907. Obviously, then,the EAJA provides the Secretary with every reason to withdraw a citationwithout substantial justification before a hearing begins. It alsoprovides him with a way of avoiding the payment of attorneys’ fees: towithdraw once the lack of substantial justification appears and toprovide evidence that until the withdrawal occurred, his position wassubstantially justified. Inasmuch as he has failed to present suchevidence here, however, his argument must be rejected.VHaving found K.D.K to be the prevailing party, that the Secretary failedto establish that his position was substantially justified, and thatthere are no special circumstances that would render an award unjust, wefind that K.D.K. is entitled to an award of fees and costs under theEAJA. The case is remanded to Judge Goldstein for a determination of theproper award. We would note that the Secretary argued that the EAJA doesnot contemplate the recovery of costs incurred prior to October 1, 1981,the effective date of the EAJA. Although the EAJA may have originallybeen ambiguous as to this point, it has been amended to clarify thatcosts incurred before October 1, 1981 are recoverable. Pub. L. 99- 80 ?5 (August 5, 1985), 99 Stat. 186; H.R. Rep. 120, 99th Cong. 1st Sess. 21(1985), reprinted in 1985 U.S. Code Cong. & Ad. News 149.Accordingly, the judge’s decision is reversed. The case is remanded fora determination of an appropriate award under the EAJA.FOR THE COMMISSIONRay H. Darling, Jr.Executive SecretaryDATED: June 10, 1986————————————————————————The Administrative Law Judge decision in this matter is unavailable inthis format. To obtain a copy of this document, please request one fromour Public Information Office by e-mail ( [email protected] ), telephone (202-606-5398), fax(202-606-5050), or TTY (202-606-5386).FOOTNOTES:[[1]] We would be remiss if we did not point out that this is a casethat the parties could and should have settled. Instead, significanttime and effort of both parties and the Commission have been expendedunproductively.[[2]] Previously codified at 29 U.S.C. ? 666(h) (1976).”