IB 

108TH CONGRESS 

2D SESSION H. R. 2731 

[Report No. 108–489, Part I] 

To amend the Occupational Safety and Health Act of 1970 to provide for 

the award of attorney’s fees and costs to very small employers when 

they prevail in litigation prompted by the issuance of citations by the 

Occupational Safety and Health Administration. 

IN THE HOUSE OF REPRESENTATIVES 

JULY 15, 2003 

Mr. NORWOOD introduced the following bill; which was referred to the 

Committee on Education and the Workforce 

MAY 13, 2004 

Additional sponsors: Mr. BOEHNER, Mrs. BIGGERT, Mr. BALLENGER, Mr. 

HOEKSTRA, Mr. KELLER, Mr. KLINE, Mrs. BLACKBURN, Mr. ISAKSON, 

Mr. SCHROCK, Mr. AKIN, Mr. CHOCOLA, Mrs. MUSGRAVE, Mr. TOOMEY, 

Mr. BEAUPREZ, Mr. DEMINT, Mr. SULLIVAN, Mr. FRANKS of Arizona, 

Mr. SAM JOHNSON of Texas, Mr. WILSON of South Carolina, Mr. 

MCKEON, Mr. PAUL, Mr. OTTER, and Mr. BARRETT of South Carolina 

MAY 13, 2004 

Reported with an amendment and referred to the Committee on the Judiciary 

for a period ending not later than May 17, 2004, for consideration of 

such provisions of the bill and amendment as fall within the jurisdiction 

of that committee pursuant to clause 1(k), rule X 

[Strike out all after the enacting clause and insert the part printed in italic] 

A BILL 

To amend the Occupational Safety and Health Act of 1970 

to provide for the award of attorney’s fees and costs 

to very small employers when they prevail in litigation 
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prompted by the issuance of citations by the Occupational Safety and Health Administration. 

1 Be it enacted by the Senate and House of Representa2 tives of the United States of America in Congress assembled, 

3 SECTION 1. SHORT TITLE. 

4 This Act may be cited as the ‘‘Occupational Safety 

5 and Health Small Employer Access to Justice Act of 

6 2003’’. 

7 SEC. 2. AWARD OF ATTORNEY’S FEES AND COSTS. 

8 The Occupational Safety and Health Act of 1970 (29 

9 U.S.C. 651 and following) is amended by redesignating 

10 section 32 through 34 as 33 through 35 and inserting the 

11 following new section after section 31: 

12 ‘‘SEC. 32. AWARD OF ATTORNEYS’ FEES AND COSTS. 

13 ‘‘(a) ADMINISTRATIVE PROCEEDINGS.—An employer 

14 who— 

15 ‘‘(1) is the prevailing party in any adversary 

16 adjudication instituted under this Act, and 

17 ‘‘(2) had not more than 100 employees and a 

18 net worth of not more than $1,500,000 at the time 

19 of the adversary adjudication was initiated, 

20 shall be awarded fees and other expenses as a prevailing 

21 party under section 504 of title 5, United States Code, 

22 in accordance with the provisions of that section, but with23 out regard to whether the position of the Secretary was 

24 substantially justified or special circumstances make an 
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1 award unjust. For purposes of this section the term ‘ad2 versary adjudication’ has the meaning given that term in 

3 section 504(b)(1)(C) of title 5, United States Code. 

4 ‘‘(b) PROCEEDINGS.—An employer who— 

5 ‘‘(1) is the prevailing party in any proceeding 

6 for judicial review of any action instituted under this 

7 Act, and 

8 ‘‘(2) had not more than 100 employees and a 

9 net worth of not more than $1,500,000 at the time 

10 the action addressed under subsection (1) was filed, 

11 shall be awarded fees and other expenses as a prevailing 

12 party under section 2412(d) of title 28, United States 

13 Code, in accordance with the provisions of that section, 

14 but without regard to whether the position of the United 

15 States was substantially justified or special circumstances 

16 make an award unjust. Any appeal of a determination of 

17 fees pursuant to subsection (a) of this subsection shall be 

18 determined without regard to whether the position of the 

19 United States was substantially justified or special cir20 cumstances make an award unjust. 

21 ‘‘(c) APPLICABILITY.— 

22 ‘‘(1) COMMISSION PROCEEDINGS.—Subsection 

23 (a) of this section applies to proceedings commenced 

24 on or after the date of enactment of this Act. 
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1 ‘‘(2) COURT PROCEEDINGS.—Subsection (b) of 

2 this section applies to proceedings for judicial review 

3 commenced on or after the date of enactment of this 

4 Act.’’. 

5 SEC. 1. SHORT TITLE. 

6 This Act may be cited as the ‘‘Occupational Safety and 

7 Health Small Business Day in Court Act of 2004’’. 

8 SEC. 2. AWARD OF ATTORNEY’S FEES AND COSTS. 

9 The Occupational Safety and Health Act of 1970 (29 

10 U.S.C. 651 and following) is amended by redesignating sec11 tions 32 through 34 as sections 33 through 35 and inserting 

12 the following new section after section 31: 

13 ‘‘SEC. 32 AWARD OF ATTORNEYS’ FEES AND COSTS. 

14 ‘‘(a) ADMINISTRATIVE PROCEEDINGS.—An employer 

15 who— 

16 ‘‘(1) is the prevailing party in any adversary 

17 adjudication instituted under this Act, and 

18 ‘‘(2) had not more than 100 employees and a net 

19 worth of not more than $7,000,000 at the time of the 

20 adversary adjudication was initiated, 

21 shall be awarded fees and other expenses as a prevailing 

22 party under section 504 of title 5, United States Code, in 

23 accordance with the provisions of that section, but without 

24 regard to whether the position of the Secretary was substan25 tially justified or special circumstances make an award un-
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1 just. For purposes of this section the term ‘adversary adju2 dication’ has the meaning given that term in section 

3 504(b)(1)(C) of title 5, United States Code. 

4 ‘‘(b) PROCEEDINGS.—An employer who— 

5 ‘‘(1) is the prevailing party in any proceeding 

6 for judicial review of any action instituted under this 

7 Act, and 

8 ‘‘(2) had not more than 100 employees and a net 

9 worth of not more than $7,000,000 at the time the ac10 tion addressed under subsection (1) was filed, 

11 shall be awarded fees and other expenses as a prevailing 

12 party under section 2412(d) of title 28, United States Code, 

13 in accordance with the provisions of that section, but with14 out regard to whether the position of the United States was 

15 substantially justified or special circumstances make an 

16 award unjust. Any appeal of a determination of fees pursu17 ant to subsection (a) of this subsection shall be determined 

18 without regard to whether the position of the United States 

19 was substantially justified or special circumstances make 

20 an award unjust. 

21 ‘‘(c) APPLICABILITY.— 

22 ‘‘(1) COMMISSION PROCEEDINGS.—Subsection (a) 

23 of this section applies to proceedings commenced on or 

24 after the date of enactment of this section. 
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1 ‘‘(2) COURT PROCEEDINGS.—Subsection (b) of 

2 this section applies to proceedings for judicial review 

3 commenced on or after the date of enactment of this 

4 section.’’. 

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