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UNITED STATES v. PITT-DES MOINES

June 12, 1997

UNITED STATES OF AMERICA, Plaintiff,
v.
PITT-DES MOINES, INC., Defendant.



The opinion of the court was delivered by: WILLIAMS

 The United States of America is prosecuting Defendant Pitt-Des Moines, Inc. for its alleged willful violations of two regulations promulgated under the Occupational Safety and Health Act (the "OSH Act"). Before the court are various motions to dismiss the indictment pursuant to Federal Rule of Criminal Procedure 12(b). For reasons set forth below, the court denies these motions.

 Background

 A federal grand jury, on August 19, 1996, indicted defendant on two counts of violating 29 U.S.C. § 666(e), which makes it a criminal misdemeanor offense for an employer willfully to violate any OSH Act regulation where that violation causes the death of an employee. (Def.'s Mot. to Dismiss the Indictment Based Upon Violation of the Def.'s Constitutional Rights Against Double Jeopardy and Res Judicata ("Def.'s Mot. to Dismiss # 1") at 4). Specifically, the indictment charges that defendant willfully violated two OSH Act regulations--29 C.F.R. §§ 1926.751(a), the "two-bolt rule", and 1926.21(b)(2), the "training rule". Id. The violations allegedly related to a deadly accident, which occurred during construction of the United States Postal Service General Mail Facility (the "Post Office"). Id. at 1.

 The general contractor of the Post Office construction project hired defendant to fabricate and erect the structural steel for the Post Office project. (Gov't Resp. to Def.'s Pretrial Mot. ("Gov't Resp.") at 1). On November 3, 1993, during construction of the Post Office, sixty plus structural steel members collapsed without warning, causing the death of two ironworkers. (Def.'s Mot. to Dismiss # 1 at 1; Gov't Resp. at 2). The Occupation Safety and Health Administration ("OSHA") immediately investigated this accident. (Def.'s Mot. to Dismiss # 1 at 1; Gov't Resp. at 3). OSHA's investigation included interviews with witnesses, review of documents, and expert examination and analysis. (Gov't Resp. at 3). These investigations persuaded OSHA that the failure of a connection between a specific and identified horizontal beam and vertical column caused the collapse. (Gov't Resp. at 4). As a result, on May 2, 1994, OSHA issued defendant one "serious" and one "willful" citation. Id. The "willful" citation charged the company with willful violations of both the two-bolt rule and the training rule. Id.

 Defendant contested the citations. On May 23, 1994, the Department of Labor ("DOL") filed its complaint against defendant with the Occupational Safety and Health Review Commission ("OSHRC"), who assigned it to an Administrative Law Judge ("ALJ"). (Def.'s Mot. to Dismiss # 1 at 2; Gov't Resp. at 5). Defendant commenced discovery on June 24, 1994, serving the Secretary with interrogatories and a document request. *fn1" (Def.'s Mot. to Dismiss # 1 at 2). Shortly thereafter, the DOL moved for a stay of the civil proceedings, citing the potential for a criminal prosecution of the matter by the Department of Justice ("DOJ"). Id. On August 4, 1994, OSHA filed an unopposed motion for a stay stating that it had referred the matter to the DOJ. *fn2" (Gov't Resp. at 5). On August 11, 1994, the ALJ granted the stay. (Def.'s Mot. to Dismiss # 1 at 2).

 The DOL continued to refuse defendant's discovery requests, stating that compliance would jeopardize the Government's ongoing criminal investigation. (Def.'s Mot. to Dismiss # 1 at 3; Gov't Resp. at 6). Subsequently, the ALJ ordered the government to comply, but the government refused despite an acknowledgment that such refusal could result in dismissal of the civil case. Id. at 3-4. Accordingly, defendant moved to dismiss the case, and, on April 28, 1995, the ALJ dismissed the complaint with prejudice and on the merits, because of "the Government's failure to bring a criminal proceeding and its refusal to proceed in the civil proceeding." (Id. ; Gov't Resp. at 6 (citing Final Order, OSHRC Docket No. 94-1355)). The DOL appealed this order to the OSHRC. (Def.'s Mot. to Dismiss # 1 at 4).

 On March 24, 1997, the commission reversed the ALJ's dismissal decision and remanded the civil case for reinstatement and issuance of a stay pending the criminal proceeding's completion. Secretary of Labor v. Pitt-Des Moines, Inc., OSHRC Docket No. 94-1355 (March 24, 1997). Among other things, the commission was concerned that there was a significant potential for discovery abuse without the stay. Id.

 Analysis

 A motion to dismiss an indictment is more similar to a civil Rule 12(b)(6) motion, which tests the sufficiency of the underlying complaint (here the indictment). United States v. Apple, 927 F. Supp. 1119, 1121 (N.D.Ind. 1996). Thus, as with a rule 12(b)(6) motion to dismiss, the court accepts as true all factual allegations in the indictment. See United States v. Wood, 925 F.2d 1580, 1581 (7th Cir. 1991) (citation omitted); See also Zinermon v. Burch, 494 U.S. 113, 118, 108 L. Ed. 2d 100, 110 S. Ct. 975 (1990) (motion to dismiss); Colfax Corp. v. Illinois State Toll Highway Auth., 79 F.3d 631, 632 (7th Cir. 1996) (rule 12(b)(6) motion to dismiss) (citation omitted). Additionally, all uncontested allegations to which the parties had an opportunity to respond are taken as true. See Alexander, 994 F.2d 333 at 335. Lastly, the court may take judicial notice of matters of public record. See Henson v. CSC Credit Servs., 29 F.3d 280, 284 (7th Cir. 1994); Wood, 925 F.2d at 1582.

 I. VAGUENESS

 Defendant first argues that the OSH Act regulations upon which the indictment is based are invalid and unenforceable because they are unconstitutionally vague. Consequently, defendant argues, the indictment too is invalid. The court disagrees.

  The court examines vagueness challenges to regulations that do not involve the fundamental rights of the defendant in light of the facts of the case at hand on an "as-applied" basis. See Maynard v. Cartwright, 486 U.S. 356, 361, 100 L. Ed. 2d 372, 108 S. Ct. 1853 (1988); see also Faultless Div. v. Secretary of Labor, 674 F.2d 1177, 1185 (7th Cir. 1982) ("When considering remedial legislation such as the OSH Act and its implementing regulations, the vagueness . . . is judged . . . in light of its application to the facts of the case."). Thus, the court will uphold the challenge only if the regulation is impermissibly vague in all of its applications. See Village of Hoffman Estates v. Flipside Hoffman Estates, Inc., 455 U.S. 489, 494-95, 71 L. Ed. 2d 362, 102 S. Ct. 1186 (1982). "A plaintiff who engages in some conduct that is clearly proscribed cannot complain of the vagueness of the law as applied to the conduct of others. A court should therefore examine the complainant's conduct before analyzing other hypothetical applications of the law." Id. at 495.

 The test courts apply here is "whether the standard is so indefinite that men of common intelligence must necessarily guess at its meaning and differ as to its application." Allis-Chalmers Corp. v. Occupational Safety and Health Review Commission, 542 F.2d 27, 30 (7th Cir. 1976) (citing Ginsberg v. New York, 390 U.S. 629, 643, 20 L. Ed. 2d 195, 88 S. Ct. 1274 (1968)). "All that due process requires is a fair and reasonable warning." Faultless Div., 674 F.2d at 1185 (citing Allis-Chalmers Corp., 542 F.2d 27 at 30); see also Maynard, 486 U.S. at 361 (vagueness challenge may be overcome in a particular case if a reasonable person would know that their conduct is at risk). A regulation must contain minimum guidelines to govern law enforcement and provide a basis for determining what to do in order to comply. See Kolender v. Lawson, 461 U.S. 352, 357, 75 L. Ed. 2d 903, 103 S. Ct. 1855 (1983) (holding that courts must determine whether a statute or regulation provides a person of ordinary intelligence a fair and reasonable warning of what conduct it prohibits or requires); see also Faultless Div., 674 F.2d at 1185; Georgia Pacific Corp. v. Occupational Safety and Health Review Commission, 25 F.3d 999, 1004 (11th Cir. 1994). A regulation will pass constitutional muster even though it is not drafted with the utmost precision. Faultless Div., 674 F.2d at 1185 (citation omitted).

 According to the above standards, courts have denied vagueness challenges to statutes with terms that are less than definite. For instance, in Allis-Chalmers the Seventh Circuit faced a vagueness challenge to a general OSH Act requirement that ordered employers to use scaffolding in certain situations. See 542 F.2d at 29. Specifically, the requirement defined a scaffolding situation as one in which work could "not be done safely from the ground or from solid construction." Id. at 30 (citing 29 C.F.R. § 1910.28). In Allis-Chalmers, the SOL cited the petitioners after a compliance officer observed one of the petitioner's employees removing a manhole cover from a crane while standing on a sideways rotary kiln. See id. at 29. Petitioners claimed the requirement at issue was unenforceable because they "could not reasonably have foreseen its applicability." Id. The Seventh Circuit Court of Appeals disagreed. The court reasoned that the regulation provided the petitioner with a reasonable warning that they were to use scaffolding when work "could not be done safely in light of common understanding and practices." The court then held that the regulation met "the minimum requirements of clarity to satisfy constitutional due process." Id. 542 F.2d at 30 (quoting United States v. Petrillo, 332 U.S. 1, 4, 91 L. Ed. 1877, 67 S. Ct. 1538 (1947) ("so long as the regulation here in afforded a reasonable warning of the proscribed conduct in light of common understanding and practices, it will pass constitutional muster.")).

 In contrast, courts have voided statutes on vagueness grounds in a number of situations, all dissimilar to the present case. For instance, in Georgia Pacific Corp., 25 F.3d 999 (11th Cir. 1994), the Eleventh Circuit upheld a vagueness challenge to a statute where experts, when asked for a definition of the contested phrase in the regulation, could not settle upon a single definition. Similarly, in Kropp Forge Co., 657 F.2d 119, the Seventh Circuit voided for vagueness a regulation that required "a continuing effective hearing conservation program." The SOL believed the petitioner had violated the regulation because its program lacked six very specific elements. See id. Since the regulatory language did not even mention the six required elements, the Seventh Circuit held that the regulation did not adequately warn the petitioners and was vague. See id.; see also Matter of Metro-East Mfg. Co., 655 F.2d 805 (7th Cir. 1981).

 This court's task is to determine whether the regulations at issue here gave defendant adequate warning that, as alleged in the indictment, knowingly and willfully releasing a steel beam from the hosting line during final placing without using two bolts or the equivalent, and failing to instruct its employees on the same is unlawful. The regulations at issue are the "two-bolt rule" and the "training rule." The two-bolt rule, 29 C.F.R. § 1926.751(a), states:

 
During the final placing of solid web structural members, the load shall not be released from the hoisting line until the members *fn4" are secured with not less than two bolts, or ...

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