UNITED STATES OF AMERICA

OCCUPATIONAL SAFETY AND HEALTH REVIEW COMMISSION

SECRETARY OF LABOR,
Complainant,
v.	OSHRC DOCKET NO. 78-1054
CEMENT ASBESTOS PRODUCTS CO.,
Respondent.

March 28, 1980

DECISION

BEFORE CLEARY, Chairman; BARNAKO and COTTINE, Commissioners.

BY THE COMMISSION:

In an order dated September 12, 1978, Administrative Law Judge John J. Larkin granted Respondent’s Motion to Strike Citation and Complaint in the instant case. The judge’s order was directed for review by Chairman Cleary pursuant to section 12(j)[1] of the Occupational Safety and Health Act of 1970, 29 U.S.C. §§ 651–678 (‘the Act’). For the reasons given below that order is reversed and the case is remanded for further proceedings.

Respondent manufactures cement asbestos pipe in the State of Alabama. Following an inspection of its workplace by a representative of the Secretary of Labor, citations alleging violations of section 5(a)(1)[2] and 5(a)(2)[3] of the Act were issued. The citations were timely contested and a complaint was issued alleging a violation of the general duty clause and noncompliance with the following standards: 29 C.F.R. §§ 1910.1001(b)(3), (c)(1)(i), (d)(2)(iv)(a), (d)(3), (f)(2)(ii), (c)(2)(i), (g)(2)(i) and (h)(1). Respondent, pursuant to Rule 12(e)[4] of the Federal Rules of Civil Procedure, then filed a Motion for a More Definite Statement. In this motion Respondent requested detailed information regarding the citation and complaint issued by the Secretary, which, it contended, were so ‘vague, ambiguous and indefinite’ that it could not ‘frame a responsive pleading or prepare its defense to the charges.’

Characteristic of the citations is Item 2 of Citation No. 1:

29 CFR 1910.1001(b)(3): Employee(s) were exposed to airborne concentrations of asbestos fibers in excess of the ceiling concentration of 10 fibers longer than 5 micrometers, per cubic centimeter of air:

(a) Location: Batch Area—batch operator working at the point where bags of asbestos were being opened and in the wet preparation area.

29 CFR 1910.1001(c)(1)(i): Engineering controls, such as, but not limited to, isolation, enclosure, exhaust ventilation, and dust collection were not used to the extent necessary, in the batch area, to meet the exposure limits prescribed in paragraph (b) of this section:

Job Identification: Batch Operator

29 CFR 1910.1001(d)(2)(iv)(a): The employer did not establish a respirator program in accordance with American National Standards ‘Practices for Respirator Protection,’ ANSI Z88.2–1969:

(a) Location: Batch Area—batch operator was observed wearing an improperly fitted respirator, in that both straps of the respirator were not worn and respirator to face seal was not snug.

29 CFR 1910.1001(d)(3): The employer did not provide and require the use of special clothing for any employee(s) exposed to airborne concentrations of asbestos fibers which exceeded the prescribed ceiling level:

(a) Location: Batch Area—batch operator was observed without the protection of gloves.

29 CFR 1910.1001(f)(2)(ii): Sampling frequency and patterns. In no case shall the sampling be done at intervals greater than 6 months for employees whose exposure to asbestos may reasonably be foreseen to exceed the limits prescribed by paragraph (b) of Section 29 CFR 1910.1001:

Job Identification: Batch Operator.

In the complaint, the Secretary made the same allegations without substantial changes. In its Motion for a More Definite Statement, Respondent requested the following information[5] regarding Item 2 of Citation No. 1:

Item 2, Citation No. 1

(a) The amount of airborne concentrations of asbestos fibers, per cubic centermeter (sic) of air, to which each employee was exposed, the number of employees so exposed, and the maximum permissible level thereof.

(b) The length of time of exposure to the excessive airborne concentrations of asbestos fibers for each affected employee.

(c) An identification of the technique used by complainant during the inspection to monitor for asbestos fibers and the method of measurement.

(d) The composition of the ‘asbestos’ to which any employee was exposed by stating whether the same was chrysotile, amosite, crocidolite, anthophyllite, actinolite, or a combination of same. If a combination, identify what percent of the combination each such substance constituted.

(e) The frequency and pattern of monitoring which was employed to determine that the level of asbestos was excessive and the length of time of each sampling period.

(f) A description of the procedures used to identify the particles present in the samples that were taken by complainant during the inspection.

(g) The length and aspect ratio of the fibers to which any employee of respondent was exposed.

(h) A complete account of what respondent should have done to insure that its employees wore protective gloves and properly fitted respirators, including a statement of those methods of hiring, training, monitoring or sanctioning of workers which should have been in effect at the time of citation if those then in effect were deficient.

(i) A complete account of what must be changed in order for respondent to be in compliance with each subsection of this citation item.

(j) An identification of each provision and practice of the respirator program stated in ‘ANSI Z88.2–1969’ which was not observed.

(k) A description of the ‘frequency and patterns’ of respondent’s ‘sampling’ and a particularized account of the manner and respect in which the same varied from the requirements of the cited standard.

(l) A detailed description of the ‘Engineering controls’ mentioned in Item 2b including the specifications for all machinery and equipment constituting the same, the location where the same are to be installed, the estimated cost of the same, and the estimated time to acquire and install the same.

(m) Each date included within the pending citation on which each offense is alleged to have occurred and the number of times it occurred on each such date.

The judge granted Respondent’s motion. In response to the Secretary’s argument that his citation and complaint were adequate and that the information Respondent requested should be obtained through the discovery process, the judge concluded that Commission Rule 53,[6] 29 C.F.R. § 2200.53, ‘substantially curtails the rights of discovery normally applicable under the Federal Rules of Civil Procedure.’

The Secretary subsequently filed with the judge on May 25, 1978, a Motion for Certification for an Interlocutory Appeal.[7] He also filed on May 30, 1978, a Motion for Interlocutory Appeal with the Review Commission, as well as a second motion with the judge urging him to reconsider his Order Granting Respondent’s Motion for a More Definite Statement. On June 3, 1978, Respondent countered with a Motion to Strike the Citation and Complaint in view of the Secretary’s failure to respond within 10 days to the judge’s original order granting Respondent’s Motion for a More Definite Statement. On July 10, 1978, the Commission denied the Secretary’s Motion for Interlocutory Appeal.

The judge issued a Show Cause Order to the Secretary on August 4, 1978, allowing him 10 days to explain why Respondent’s June 3 Motion to Strike Citation and Complaint should not be granted. In response, the Secretary requested the judge to rule on the Motion to Reconsider the Order Granting Respondent’s Motion for a More Definite Statement. If the judge chose not to consider this pending motion, the Secretary respectfully declined to furnish the more definite statement. He went on to note that the complaint stated ‘with particularity the basis for jurisdiction; the time, location, place, and circumstances of each such alleged violation; and the consideration upon which the abatement periods and proposed penalties are based.’ This, according to the Secretary, met the requirements for particularity set out in Del Monte Corp., 77 OSAHRC 17/D12, 4 BNA OSHC 2035, 1976–77 CCH OSHD ¶ 21,536 (No. 11865, 1977). The Secretary further contended that in granting Respondent’s Motion for a More Definite Statement on the basis of the restrictive nature of the Commission’s discovery rules, the judge did not address the sufficiency of the citation and complaint, but instead allowed Respondent to use Federal Rule 12(e) as a supplement to the discovery rules. By complying with such a ruling the Secretary would be forced to plead evidence and allow Respondent to discover his entire case, free from the possible objections which he could raise in discovery proceedings.

The judge, on September 12, 1978, granted Respondent’s Motion to Strike Citation and Complaint. The Secretary filed a Petition for Review with the Commission, and it was granted by Chairman Cleary on October 12, 1978. The Direction for Review was followed by a briefing order on December 4, 1978, requesting the parties to address the following issues:

(1) Whether the administrative law judge erred in granting respondent’s motion for a More Definite Statement, and;

(2) Whether the administrative law judge erred in dismissing the citations issued to respondent for failure of complainant to respond adequately to respondent’s motion.

On review, the Secretary maintains that the judge erred since the citation and complaint were sufficiently specific to meet the requirements of section 9(a) of the Act as interpreted in Del Monte Corp., supra, as well as the requirements of rules 8(a) and 8(e) of the Federal Rules of Civil Procedure. As an example, the Secretary notes that in regard to Citation 1, Item 2(a), an alleged failure to comply with 29 C.F.R. § 1910.1001(b)(3), the complaint sets out the following:

[W]hat the violation consisted of (employee exposure to airborne concentrations of asbestos fibers in excess of the ceiling concentration of 10 fibers longer than 5 micrometers per cubic centimeter of air), the location of the violation (batch area), the job description of the exposed employee (batch operator), where the exposed employee was and what was being done (working at the point where bags of asbestos were being opened and in the wet preparation area).

In the Secretary’s view this meets the requirements of Commission Rule 33(a)(2),[8] those of Federal Rule of Civil Procedure 8(a), which requires that a pleading contain:

(1)[A] short and plain statement of the grounds upon which the court’s jurisdiction depends, . . . (2) a short and plain statement of the claim showing that the pleader is entitled to relief, and (3) a demand for judgment for the relief to which he deems himself entitled[,]

and Federal Rule 8(e) which requires that ‘[e]ach averment of a pleading shall be simple, concise, and direct.’

The Secretary further notes that the Commission has held, in vacating a similar order by the same judge, that the particularity requirement of section 9(a),

does not require that a citation state the elements of a cause of action or that an employer be informed with particularity of how he must abate a hazardous condition (emphasis supplied) (citations omitted).

Del Monte Corp., supra, 4 BNA OSHC at 2037, 1976–77 CCH OSHD at p. 25,842.

Since, in his view, the citation and complaint in this case clearly set out the nature and location of each violation in such a manner that Respondent could abate the conditions, the Secretary urges us to vacate the judge’s order and remand the case.

In Respondent’s view[9] the issue before the Commission is whether ‘a judge, when confronted with a steadfast refusal by the Secretary of Labor to show any cause for noncompliance with an earlier order, should dispose of the matter as Judge Larkin did in this case.’ With respect to the issues raised by the Direction for Review, however, Respondent contends that because these matters were raised in the Secretary’s Motion for Interlocutory Appeal, which was considered and denied by the Commission, the Secretary is barred from raising them here. Respondent also points out that the Commission has indicated that an employer faced with a vague pleading could move for a more definite statement under Fed. R. Civ. P. 12(e). Del Monte Corp., supra. Respondent also relies on B. W. Harrison Lumber Co., 76 OSAHRC 49/A2, 4 BNA OSHC 1091, 1975–76 CCH OSHD ¶20,623 (No. 2200, 1976), aff’d, 569 F.2d 1303 (5th Cir. 1978), as an example of Commission recognition that failure to comply with the particularity requirement of section 9(a) of the Act, 29 U.S.C. § 658(a), may require vacation of some citations. In addition, Respondent notes that ‘the decision whether to allow discovery is within the judge’s sound discretion,’ citing, KLI, Inc., 77 OSAHRC 202/A2, 6 BNA OSHC 1097, 1098, 1977–78 CCH OSHD ¶ 22,350 at p. 26,937 (No. 13490, 1977).

Respondent’s contention, that under the doctrine of res judicata the Commission’s denial of the Secretary’s Motion for Interlocutory Appeal bars the Secretary from making the same arguments on review, is without merit. That denial, under former rule 75 of the Commission’s Rules of Procedure, 37 Fed. Reg. 20,237, 20,242 (1972),[10] was in response to a request by the Secretary for special permission to appeal the judge’s order. In denying the motion, the Commission concluded only that it would not grant the special permission. This denial was not an adjudication on the merits of the judge’s order[11] and was without prejudice to the merits of the Secretary’s claim. Under the doctrine of the law of the case, which is the applicable doctrine under these circumstances rather than res judicata, an appellate forum generally will apply a rule of law it enunciates on a particular issue to the same issue in subsequent proceedings in the same case. U.S. v. McClain, 593 F.2d 658 (5th Cir. 1979), cert. den., 100 S.Ct. 234 (1979). The doctrine, however, comes into play with respect to issues previously determined. Quern v. Jordan, 440 U.S. 358 (1979). The issue on review at this time was not previously decided by the Commission in this case. Thus, the doctrine of the law of the case has no application. U.S. v. United States Smelting Refining & Mining Co., 339 U.S. 186 (1950). Accordingly, the Secretary is not barred from arguing that the judge erred in granting Respondent’s Motion for a More Definite Statement.

Respondent’s argument that a motion for more definite statement is an appropriate remedy where a complaint is so lacking in particulars that an employer could not frame an answer to it, is a correct statement of the law.[12] A motion for more definite statement is, however, designed under Rule 12(e) of the Federal Rules of Civil Procedure to strike at unintelligibility rather than want of detail. 2A Moore’s Federal Practice, ¶12.18 at 2389 (2d ed. 1979). The motion is not to be used as a substitute for discovery in order to obtain the facts in preparation for trial. Mitchell v. E-Z Way Towers, Inc., 269 F.2d 126, 132 (5th Cir. 1959).

In federal court proceedings Rule 12(e) must be read in conjunction with Rule 8 [13]of the Federal Rules of Civil Procedure.[14] Hodgson v. Virginia Baptist Hospital, Inc., 482 F.2d 821 (4th Cir. 1973). Similarly, in Commission proceedings, Rule 12(e) must be read in conjunction with Commission Rule 33(a)(2). A motion for more definite statement generally will not be granted if the complaint states the jurisdictional grounds of the claim, identifies the sections of the law and standards allegedly violated, and sets forth the time, location, place, and circumstances of each such alleged violation.

The complaint in this case states the jurisdictional grounds of the claims and identifies the sections of law and standards allegedly violated. It also sets forth the time,[15] location, and circumstances of each alleged violation. It specifies the job description of the exposed employee, his location, and the task he was performing. This information meets the requirements of Commission Rule 33(a)(2). Clearly Respondent was given fair notice of the nature of the claim. A motion for more definite statement should not have been granted.[16]

To the extent that Respondent’s observation that discovery is within the sound discretion of the judge is intended to be an argument in support of the granting of its Motion for a More Definite Statement, it is rejected. A motion for more definite statement seeks to cure unintelligibility in a pleading and is totally independent of ‘the machinery of discovery whose function it is to ferret out facts and delineate issues before trial . . ..’ Mitchell v. E-Z Way Towers, Inc., supra at 131. Thus, whether discovery takes place is a question entirely separate from a determination regarding a motion for more definite statement.

Having concluded that the judge erred in granting Respondent’s Motion for a More Definite Statement it necessarily follows that the judge’s dismissal of the complaint and citation based upon the Secretary’s refusal to comply with the erroneous order also must be reversed. Respondent’s argument on review to the effect that the question in this case is ‘. . . whether one party can openly defy a Commission order . . .’ is based upon the mistaken premise, as discussed previously, that the Commission’s denial of the Secretary’s request for special permission to appeal operated as an adjudication on the merits of the judge’s order granting Respondent’s Motion for a More Definite Statement.[17] Accordingly, we conclude that the judge erred in dismissing the citation.

The judge’s orders granting Respondent’s Motion for a More Definite Statement and dismissing the citation and complaint are vacated and the case is remanded for further proceedings consistent with this opinion.

So ORDERED.

FOR THE COMMISSION:

RAY H. DARLING, JR.

EXECUTIVE SECRETARY

DATED: MAR 28, 1980

UNITED STATES OF AMERICA

OCCUPATIONAL SAFETY AND HEALTH REVIEW COMMISSION

SECRETARY OF LABOR,
Complainant,
v.	OSHRC DOCKET NO. 78-1054
CEMENT ASBESTOS PRODUCTS CO.,
Respondent.

September 12, 1978

ORDER GRANTING RESPONDENT’S MOTION TO STRIKE CITATION

AND COMPLAINT

On May 18, 1978, Respondent’s Motion For A More Definite Statement filed pursuant to Rule 12(e) of the Federal Rules of Civil Procedure was granted.

On May 26, 1978, the Secretary filed a Motion For Certification For An Interlocutory Appeal; Amendment To Complaint; and a Request to Withdraw (recluse) including withdrawal of any ruling or orders previously issued.

On June 1, 1978, the Secretary filed with the Review Commission a Motion For Interlocutory Appeal and A Supporting Memorandum. On this same date, the Secretary filed Complainant’s Motion To Reconsider The Order Granting Respondent’s Motion For A More Definite Statement.

On June 7, 1978, Respondent filed Motion To Strike Citation and Complaint because of the Secretary’s failure to respond to the May 18, 1978 order within ten (10) days as provided by Rule 12(e) of the Federal Rules of Civil Procedure.

On July 10, 1978, the Review Commission denied the Secretary’s Motion For Interlocutory Appeal.

On August 4, 1978, an Order To Show Cause was issued to the Secretary for failure to comply with the May 18, 1978 order.

On August 18, 1978, the Secretary filed Complainant’s Response to Order To Show Cause and ‘respectfully declines to furnish the more definite statement.’

WHEREFORE IT IS ORDERED:

Respondent’s motion of June 7, 1978, to Strike Citation and Complaint is granted. Citation No. 1 and Citation No. 2 issued on February 16, 1978, are vacated and no penalties are assessed.

SO ORDERED this 12th day of September, 1978, in Atlanta, Georgia.

JOHN J. LARKIN

Judge

[1] 29 U.S.C. § 661(i).

[2] 29 U.S.C. § 654(a)(1).

[3] 29 U.S.C. § 654(a)(2).

[4] The Federal Rules of Civil Procedure are applicable to Commission proceedings by section 12(g) of the Act, 29 U.S.C. § 661(f) and Commission rule 2(b), 29 C.F.R. § 2200.2(b).

Federal Rule 12(e) provides:

Rule 12. Defenses and Objections—When and How Presented—By Pleading or Motion—Motion for Judgment on Pleadings.

(e) MOTION FOR MORE DEFINITE STATEMENT. If a pleading to which a responsive pleading is permitted is so vague or ambiguous that a party cannot reasonably be required to frame a responsive pleading, he may move for a more definite statement before interposing his responsive pleadings. The motion shall point out the defects complained of and the details desired. If the motion is granted and the order of the court is not obeyed within 10 days after notice of the order or within such other time as the court may fix, the court may strike the pleading to which the motion was directed or make such order as it deems just.

[5] The information that Respondent requested regarding Item 2 of Citation 1 is characteristic of the information requested for the remainder of the items.

[6] The rule provides:

Rule 53 Discovery depositions and interrogatories.

(a) Except by special order of the Commission or the Judge, discovery depositions of parties, intervenors, or witnesses, and interrogatories directed to parties, intervenors, or witnesses shall not be allowed.

(b) In the event the Commission or the Judge grants an application for the conduct of such discovery proceedings, the order granting the same shall set forth appropriate time limits governing the discovery.

[7] The Secretary also filed two other motions that are not before us.

[8] § 2200.33 Employer contests.

(a) Complaint

(2) The complaint shall set forth all alleged violations and proposed penalties which are contested, stating with particularity:

(i) The basis for jurisdiction;

(ii) The time, location, place, and circumstances of each such alleged violation; and

(iii) The considerations upon which the period for abatement and the proposed penalty on each such alleged violation is based.

[9] In its brief, Respondent incorporates by reference arguments made by it in previous filings.

[10] Rule 75 was amended by the Commission on December 5, 1979. 44 Fed. Reg. 70,106, 70,111 (1979) (to be codified in 29 C.F.R. § 2200.75). In this case, we are concerned with Rule 75 prior to the amendment.

[11] The new amended Rule 75, at 75(d), is to the same effect. Rule 75(d) provides, in pertinent part:

§ 2200.75 INTERLOCUTORY APPEALS

(d) DENIAL WITHOUT PREJUDICE. The Commission’s action in declining to accept a certification or denying a petition for interlocutory appeal shall not preclude a party from raising an objection to the judge’s interlocutory ruling in a petition for discretionary review.

44 Fed. Reg. 70,106, 70,111 (1979) (to be codified in 29 C.F.R. § 2200.75(d)).

[12] At least two of the cases discussed by the parties in their briefs, Del Monte Corp., supra, and B. W. Harrison Lumber Co., supra, concern the sufficiency of pleadings under the particularity requirement of section 9(a) of the Act, 29 U.S.C. § 658(a), and as such are inapposite.

[13] Rule 8. General Rules of Pleading

(a) CLAIMS FOR RELIEF. A pleading which sets forth a claim for relief, whether an original claim, counterclaim, cross-claim, or third-party claim, shall contain (1) a short and plain statement of the grounds upon which the court’s jurisdiction depends, unless the court already has jurisdiction and the claim needs no new grounds of jurisdiction to support it, (2) a short and plain statement of the claim showing that the pleader is entitled to relief, and (3) a demand for judgment for the relief to which he deems himself entitled. Relief in the alternative or of several different types may be demanded.

[14] Commission Rule 33, 29 C.F.R. § 2200.33, which sets out the requirements of a complaint, would, under Commission Rule 2(d), 29 C.F.R. § 2200.2(b), preclude application of Federal Rule 8(a) to Commission proceedings.

[15] Pursuant to Rule 15(a) of the Federal Rules of Civil Procedure, which allows a party to amend his pleading once as a matter of course before a responsive pleading is filed, the Secretary amended the complaint by specifying the dates of the alleged violations.

[16] Although only Item 2 of Citation 1 is set out in full in this decision, item 1 of Citation 1 as well as items 1, 2, and 3 of Citation 2 are also sufficient to preclude the granting of a Motion for a More Definite Statement.

[17] Further, we note that the Secretary’s failure to file a more definite statement was done at his risk of noncompliance and was an effective vehicle to place the legal issue before the Commission on review. Had the Secretary complied with the judge’s order to file a more definite statement, the subsequent hearing would have likely rendered moot the issue of the propriety of the order. See, Mitchell v. E—Z Way Towers, Inc., 269 F.2d 126, 131 (5th Cir. 1959).