Litigation by Ambush: The Struggle to Obtain Fair Notice of OSHA Allegations

• Author: Arthur G. Sapper
• Position: Senior Counsel, Ogletree, Deakins, Nash, Smoak & Stewart, P.C., Washington, D.C.
• Pages: 713-732

Litigation by Ambush: The Struggle to Obtain Fair

Notice of OSHA Allegations

ARTHUR G. SAPPER*

ABSTRACT

Employers face great obstacles in learning the details of the allegations that

OSHA is making against them; to do so, they must pursue expensive and often

unsuccessful discovery. A provision of the Occupational Safety and Health Act

was supposed to prevent this problem by requiring that violations be described

“with particularity.”The provision has, however, been construed into insignifi-

cance. The courts have held that OSHA’s allegations need provide only “fair

notice”and thus that ambiguities in allegations may be cured during discovery

or even at the hearing. No court has ever examined whether such holdings are

consistent with the plain meaning of “particularity”or with case law constru-

ing a similar requirement for fraud allegations in Federal Rule of Civil

Procedure 9(b). Under that case law, particularity in allegations must be pro-

vided in the complaint, not in discovery or at trial. This article urges that the

wholly independent agency charged with adjudication of OSHA cases revitalize

the particularity requirement by adopting an interpretive rule stating that

henceforth it will be applied as written and that it will be construed as is

Federal Rule 9(b).

TABLE OF CONTENTS

I. THE PROBLEM ....................................... 714

II. SECTION 9(A)OF THE OSH ACT:THE REQUIREMENT FOR

“PARTICULARITY”..................................... 715

III. FED.R.CIV.P.9(B)AND OTHER REQUIREMENTS FOR

PARTICULARITY IN PLEADINGS ........................... 717

IV. FROM GRANITE TO SAND:THE CONTRARY EVOLUTION OF OSH

ACT 9(A)’SPARTICULARITY REQUIREMENT... ............... 720

* Senior Counsel, Ogletree, Deakins, Nash, Smoak & Stewart, P.C., Washington, D.C.; former

deputy general counsel, Occupational Safety and Health Review Commission; former special counsel to

the Federal Mine Safety and Health Review Commission; and former adjunct professor of occupational

safety and health law at Georgetown University Law Center, Washington, D.C. © 2022, Arthur G.

Sapper.

713

A. The National Realty Case: The Trouble with Dicta . . . . . . . . 720

B. The Statute Knocked Further Off Course . . . . . . . . . . . . . . . 726

V. THE EFFECT ON EMPLOYERS ............................. 727

VI. OTHER REASONS FOR IMPLEMENTING THE STATUTE AS WRITTEN .730

VII. CONCLUSION:HOW TO REVITALIZE A DEAD STATUTE.. ........ 731

Chief among the difficulties that employers face when litigating cases before

the Occupational Safety and Health Review Commission is learning what allega-

tions are being made against them by citations issued by the Occupational Safety

and Health Administration. The precedents and procedural rules of the

Commission make this task difficult and expensive—and sometimes impossible.

A provision of the Occupational Safety and Health Act (the OSH Act)

1

directly

addresses the matter. Section 9(a) requires that citations “describe with particu-

larity the nature of the violation.”

2

The provision has, however, been construed

into insignificance. This article urges that the provision be revitalized.

I. THE PROBLEM

Citations issued by the Occupational Safety and Health Administration

(“OSHA”) of the U.S. Department of Labor commonly makeunilluminating alle-

gations. As examples:

Citations alleging failures to record injuries on a log may state the dates of

injuries but state neither the injuries, their causes or circumstances (such

as location), nor the facts that made them recordable (such as medical

treatment or work restrictions). For example, a citation in a well-known

such case alleged 169 violations in the following manner: “At a facility, a

recordable injury that occurred to 02-18 [an employee code number], on

or about July 23, 2002, was not recorded.”

3

The lack of detail in the cita-

tion made defense economically infeasible, as the employer was small and

could not afford to go through the expense of discovery in trying to get

from OSHA the details of the many alleged violations. OSHA did not

even provide the employer with a copy of the employee key when the cita-

tion was issued.

1. OSH Act §§ 2–34, 29 U.S.C. §§ 651–678.

2. OSH Act § 9(a), 29 U.S.C. § 658(a) (emphasis added).

3. OSHA Citation No. 2, Item 2, Sub-Item 90 (issued Nov. 8, 2006),in Inspection No.309086593 (in

author’s possession), adjudicated in inter alia AKM LLC v. Sec’y of Lab., 675 F.3d 752 (D.C. Cir.

2012).

714 THE GEORGETOWN JOURNAL OF LAW &PUBLIC POLICY [Vol. 20:713