“UNITED STATES OF AMERICAOCCUPATIONAL SAFETY AND HEALTH REVIEW COMMISSION\u00a0 \u00a0 SECRETARY OF LABOR, \u00a0 ???????????????????????????????????????????? Complainant, \u00a0 ???????????????????????? v. OSHRC DOCKET NO. 78-1054 CEMENT ASBESTOS PRODUCTS CO., \u00a0 ????????????????????????????????????????????? Respondent. \u00a0 \u00a0March 28, 1980DECISIONBEFORE CLEARY, Chairman; BARNAKO and COTTINE,Commissioners.BY THE COMMISSION:??????????? In anorder dated September 12, 1978, Administrative Law Judge John J. Larkin grantedRespondent?s Motion to Strike Citation and Complaint in the instant case. Thejudge?s order was directed for review by Chairman Cleary pursuant to section12(j)[1] of the Occupational Safetyand Health Act of 1970, 29 U.S.C. ?? 651?678 (?the Act?). For the reasons givenbelow that order is reversed and the case is remanded for further proceedings.??????????? Respondentmanufactures cement asbestos pipe in the State of Alabama. Following aninspection 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 aviolation of the general duty clause and noncompliance with the followingstandards: 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 ofCivil Procedure, then filed a Motion for a More Definite Statement. In thismotion Respondent requested detailed information regarding the citation andcomplaint issued by the Secretary, which, it contended, were so ?vague,ambiguous and indefinite? that it could not ?frame a responsive pleading orprepare its defense to the charges.?Characteristic of the citations is Item 2 of CitationNo. 1:2a29 CFR 1910.1001(b)(3): Employee(s) wereexposed to airborne concentrations of asbestos fibers in excess of the ceilingconcentration of 10 fibers longer than 5 micrometers, per cubic centimeter ofair:(a) Location: Batch Area?batch operatorworking at the point where bags of asbestos were being opened and in the wetpreparation area.? 2b29 CFR 1910.1001(c)(1)(i): Engineering controls,such as, but not limited to, isolation, enclosure, exhaust ventilation, anddust collection were not used to the extent necessary, in the batch area, tomeet the exposure limits prescribed in paragraph (b) of this section:Job Identification: Batch Operator?2c29 CFR 1910.1001(d)(2)(iv)(a): Theemployer did not establish a respirator program in accordance with AmericanNational Standards ?Practices for Respirator Protection,? ANSI Z88.2?1969:(a) Location: Batch Area?batch operatorwas observed wearing an improperly fitted respirator, in that both straps ofthe respirator were not worn and respirator to face seal was not snug.?2d29 CFR 1910.1001(d)(3): The employer didnot provide and require the use of special clothing for any employee(s) exposedto airborne concentrations of asbestos fibers which exceeded the prescribedceiling level:(a) Location: Batch Area?batch operatorwas observed without the protection of gloves.?2e29 CFR 1910.1001(f)(2)(ii): Samplingfrequency and patterns. In no case shall the sampling be done at intervalsgreater than 6 months for employees whose exposure to asbestos may reasonablybe foreseen to exceed the limits prescribed by paragraph (b) of Section 29 CFR1910.1001:Job Identification: Batch Operator.\u00a0??????????? In thecomplaint, the Secretary made the same allegations without substantial changes.In its Motion for a More Definite Statement, Respondent requested the followinginformation[5]regarding Item 2 of Citation No. 1:? Item 2, Citation No. 1?(a) The amount of airborne concentrationsof asbestos fibers, per cubic centermeter (sic) of air, to which each employeewas exposed, the number of employees so exposed, and the maximum permissiblelevel thereof.?(b) The length of time of exposure to theexcessive airborne concentrations of asbestos fibers for each affectedemployee.?(c) An identification of the techniqueused by complainant during the inspection to monitor for asbestos fibers andthe method of measurement.?(d) The composition of the ?asbestos? towhich any employee was exposed by stating whether the same was chrysotile,amosite, crocidolite, anthophyllite, actinolite, or a combination of same. If acombination, identify what percent of the combination each such substanceconstituted.?(e) The frequency and pattern ofmonitoring which was employed to determine that the level of asbestos wasexcessive and the length of time of each sampling period.?(f) A description of the procedures usedto identify the particles present in the samples that were taken by complainantduring the inspection.?(g) The length and aspect ratio of thefibers to which any employee of respondent was exposed.?(h) A complete account of what respondentshould have done to insure that its employees wore protective gloves and properlyfitted respirators, including a statement of those methods of hiring, training,monitoring or sanctioning of workers which should have been in effect at thetime of citation if those then in effect were deficient.?(i) A complete account of what must bechanged in order for respondent to be in compliance with each subsection ofthis citation item.?(j) An identification of each provisionand practice of the respirator program stated in ?ANSI Z88.2?1969? which wasnot observed.?(k) A description of the ?frequency andpatterns? of respondent?s ?sampling? and a particularized account of the mannerand respect in which the same varied from the requirements of the citedstandard.?(l) A detailed description of the?Engineering controls? mentioned in Item 2b including the specifications forall machinery and equipment constituting the same, the location where the sameare to be installed, the estimated cost of the same, and the estimated time toacquire and install the same.?(m) Each date included within the pendingcitation on which each offense is alleged to have occurred and the number oftimes it occurred on each such date.???????????? Thejudge granted Respondent?s motion. In response to the Secretary?s argument thathis citation and complaint were adequate and that the information Respondentrequested should be obtained through the discovery process, the judge concludedthat Commission Rule 53,[6] 29 C.F.R. ? 2200.53,?substantially curtails the rights of discovery normally applicable under theFederal Rules of Civil Procedure.???????????? TheSecretary subsequently filed with the judge on May 25, 1978, a Motion forCertification for an Interlocutory Appeal.[7] He also filed on May 30,1978, a Motion for Interlocutory Appeal with the Review Commission, as well asa second motion with the judge urging him to reconsider his Order GrantingRespondent?s Motion for a More Definite Statement. On June 3, 1978, Respondentcountered with a Motion to Strike the Citation and Complaint in view of theSecretary?s failure to respond within 10 days to the judge?s original ordergranting Respondent?s Motion for a More Definite Statement. On July 10, 1978,the Commission denied the Secretary?s Motion for Interlocutory Appeal.??????????? Thejudge issued a Show Cause Order to the Secretary on August 4, 1978, allowinghim 10 days to explain why Respondent?s June 3 Motion to Strike Citation andComplaint should not be granted. In response, the Secretary requested the judgeto rule on the Motion to Reconsider the Order Granting Respondent?s Motion fora More Definite Statement. If the judge chose not to consider this pendingmotion, the Secretary respectfully declined to furnish the more definitestatement. He went on to note that the complaint stated ?with particularity thebasis for jurisdiction; the time, location, place, and circumstances of eachsuch alleged violation; and the consideration upon which the abatement periodsand proposed penalties are based.? This, according to the Secretary, met therequirements for particularity set out in Del Monte Corp., 77 OSAHRC17\/D12, 4 BNA OSHC 2035, 1976?77 CCH OSHD ? 21,536 (No. 11865, 1977). TheSecretary further contended that in granting Respondent?s Motion for a MoreDefinite Statement on the basis of the restrictive nature of the Commission?sdiscovery rules, the judge did not address the sufficiency of the citation andcomplaint, but instead allowed Respondent to use Federal Rule 12(e) as asupplement to the discovery rules. By complying with such a ruling theSecretary would be forced to plead evidence and allow Respondent to discoverhis entire case, free from the possible objections which he could raise indiscovery proceedings.??????????? Thejudge, on September 12, 1978, granted Respondent?s Motion to Strike Citationand Complaint. The Secretary filed a Petition for Review with the Commission,and it was granted by Chairman Cleary on October 12, 1978. The Direction forReview was followed by a briefing order on December 4, 1978, requesting theparties to address the following issues:??????????? (1)Whether the administrative law judge erred in granting respondent?s motion fora More Definite Statement, and;??????????? (2)Whether the administrative law judge erred in dismissing the citations issuedto respondent for failure of complainant to respond adequately to respondent?smotion.??????????? Onreview, the Secretary maintains that the judge erred since the citation andcomplaint were sufficiently specific to meet the requirements of section 9(a)of the Act as interpreted in Del Monte Corp., supra, as well as therequirements of rules 8(a) and 8(e) of the Federal Rules of Civil Procedure. Asan example, the Secretary notes that in regard to Citation 1, Item 2(a), analleged failure to comply with 29 C.F.R. ? 1910.1001(b)(3), the complaint setsout the following:[W]hat the violation consisted of(employee exposure to airborne concentrations of asbestos fibers in excess ofthe ceiling concentration of 10 fibers longer than 5 micrometers per cubiccentimeter of air), the location of the violation (batch area), the jobdescription of the exposed employee (batch operator), where the exposedemployee was and what was being done (working at the point where bags ofasbestos were being opened and in the wet preparation area).???????????? Inthe Secretary?s view this meets the requirements of Commission Rule 33(a)(2),[8] those of Federal Rule ofCivil Procedure 8(a), which requires that a pleading contain:(1)[A] short and plain statement of thegrounds upon which the court?s jurisdiction depends, . . . (2) a short andplain 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 himselfentitled[,]?and Federal Rule 8(e) which requires that ?[e]achaverment of a pleading shall be simple, concise, and direct.???????????? TheSecretary further notes that the Commission has held, in vacating a similarorder by the same judge, that the particularity requirement of section 9(a),does not require that a citation state theelements of a cause of action or that an employer be informed withparticularity of how he must abate a hazardous condition (emphasissupplied) (citations omitted).?Del Monte Corp., supra, 4 BNAOSHC at 2037, 1976?77 CCH OSHD at p. 25,842.\u00a0??????????? Since,in his view, the citation and complaint in this case clearly set out the natureand location of each violation in such a manner that Respondent could abate theconditions, the Secretary urges us to vacate the judge?s order and remand thecase.??????????? InRespondent?s view[9]the issue before the Commission is whether ?a judge, when confronted with asteadfast refusal by the Secretary of Labor to show any cause for noncompliancewith an earlier order, should dispose of the matter as Judge Larkin did in thiscase.? With respect to the issues raised by the Direction for Review, however,Respondent contends that because these matters were raised in the Secretary?sMotion for Interlocutory Appeal, which was considered and denied by the Commission,the Secretary is barred from raising them here. Respondent also points out thatthe Commission has indicated that an employer faced with a vague pleading couldmove for a more definite statement under Fed. R. Civ. P. 12(e). Del MonteCorp., 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 recognitionthat failure to comply with the particularity requirement of section 9(a) ofthe Act, 29 U.S.C. ? 658(a), may require vacation of some citations. Inaddition, Respondent notes that ?the decision whether to allow discovery iswithin the judge?s sound discretion,? citing, KLI, Inc., 77 OSAHRC202\/A2, 6 BNA OSHC 1097, 1098, 1977?78 CCH OSHD ? 22,350 at p. 26,937 (No.13490, 1977).??????????? Respondent?scontention, that under the doctrine of res judicata the Commission?s denial ofthe Secretary?s Motion for Interlocutory Appeal bars the Secretary from makingthe same arguments on review, is without merit. That denial, under former rule75 of the Commission?s Rules of Procedure, 37 Fed. Reg. 20,237, 20,242 (1972),[10] was in response to arequest by the Secretary for special permission to appeal the judge?s order. Indenying the motion, the Commission concluded only that it would not grant thespecial permission. This denial was not an adjudication on the merits of thejudge?s order[11]and was without prejudice to the merits of the Secretary?s claim. Under thedoctrine of the law of the case, which is the applicable doctrine under thesecircumstances rather than res judicata, an appellate forum generally will applya rule of law it enunciates on a particular issue to the same issue insubsequent 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. Quernv. Jordan, 440 U.S. 358 (1979). The issue on review at this time was notpreviously decided by the Commission in this case. Thus, the doctrine of thelaw of the case has no application. U.S. v. United States Smelting Refining& Mining Co., 339 U.S. 186 (1950). Accordingly, the Secretary is notbarred from arguing that the judge erred in granting Respondent?s Motion for aMore Definite Statement.??????????? Respondent?sargument that a motion for more definite statement is an appropriate remedywhere a complaint is so lacking in particulars that an employer could not framean answer to it, is a correct statement of the law.[12] A motion for moredefinite statement is, however, designed under Rule 12(e) of the Federal Rulesof 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 isnot to be used as a substitute for discovery in order to obtain the facts inpreparation for trial. Mitchell v. E-Z Way Towers, Inc., 269 F.2d 126,132 (5th Cir. 1959).??????????? Infederal court proceedings Rule 12(e) must be read in conjunction with Rule 8 [13]of the Federal Rules ofCivil 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 inconjunction with Commission Rule 33(a)(2). A motion for more definite statementgenerally will not be granted if the complaint states the jurisdictionalgrounds of the claim, identifies the sections of the law and standardsallegedly violated, and sets forth the time, location, place, and circumstancesof each such alleged violation.??????????? Thecomplaint in this case states the jurisdictional grounds of the claims andidentifies the sections of law and standards allegedly violated. It also setsforth the time,[15]location, and circumstances of each alleged violation. It specifies the jobdescription of the exposed employee, his location, and the task he wasperforming. This information meets the requirements of Commission Rule33(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]??????????? Tothe extent that Respondent?s observation that discovery is within the sounddiscretion of the judge is intended to be an argument in support of thegranting of its Motion for a More Definite Statement, it is rejected. A motionfor more definite statement seeks to cure unintelligibility in a pleading andis totally independent of ?the machinery of discovery whose function it is toferret out facts and delineate issues before trial . . ..? Mitchell v. E-ZWay Towers, Inc., supra at 131. Thus, whether discovery takes place is aquestion entirely separate from a determination regarding a motion for moredefinite statement.??????????? Havingconcluded that the judge erred in granting Respondent?s Motion for a More DefiniteStatement it necessarily follows that the judge?s dismissal of the complaintand citation based upon the Secretary?s refusal to comply with the erroneousorder also must be reversed. Respondent?s argument on review to the effect thatthe question in this case is ?. . . whether one party can openly defy aCommission order . . .? is based upon the mistaken premise, as discussedpreviously, that the Commission?s denial of the Secretary?s request for specialpermission to appeal operated as an adjudication on the merits of the judge?sorder granting Respondent?s Motion for a More Definite Statement.[17] Accordingly, we concludethat the judge erred in dismissing the citation.??????????? Thejudge?s orders granting Respondent?s Motion for a More Definite Statement and dismissingthe citation and complaint are vacated and the case is remanded for furtherproceedings consistent with this opinion.?So ORDERED.?FOR THE COMMISSION:?RAY H. DARLING, JR.EXECUTIVE SECRETARYDATED: MAR 28, 1980\u00a0\u00a0UNITED STATES OF AMERICAOCCUPATIONAL SAFETY AND HEALTH REVIEW COMMISSION\u00a0 \u00a0 SECRETARY OF LABOR, \u00a0 ???????????????????????????????????????????? Complainant, \u00a0 ???????????????????????? v. OSHRC DOCKET NO. 78-1054 CEMENT ASBESTOS PRODUCTS CO., \u00a0 ????????????????????????????????????????????? Respondent. \u00a0 \u00a0September 12, 1978ORDER GRANTING RESPONDENT?S MOTION TOSTRIKE CITATIONAND COMPLAINT??????????? OnMay 18, 1978, Respondent?s Motion For A More Definite Statement filed pursuantto Rule 12(e) of the Federal Rules of Civil Procedure was granted.??????????? OnMay 26, 1978, the Secretary filed a Motion For Certification For AnInterlocutory Appeal; Amendment To Complaint; and a Request to Withdraw (recluse)including withdrawal of any ruling or orders previously issued.??????????? OnJune 1, 1978, the Secretary filed with the Review Commission a Motion ForInterlocutory Appeal and A Supporting Memorandum. On this same date, theSecretary filed Complainant?s Motion To Reconsider The Order GrantingRespondent?s Motion For A More Definite Statement.??????????? OnJune 7, 1978, Respondent filed Motion To Strike Citation and Complaint becauseof 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.??????????? OnJuly 10, 1978, the Review Commission denied the Secretary?s Motion ForInterlocutory Appeal.??????????? OnAugust 4, 1978, an Order To Show Cause was issued to the Secretary for failureto comply with the May 18, 1978 order.??????????? OnAugust 18, 1978, the Secretary filed Complainant?s Response to Order To ShowCause and ?respectfully declines to furnish the more definite statement.?WHEREFORE IT IS ORDERED:??????????? Respondent?smotion of June 7, 1978, to Strike Citation and Complaint is granted. CitationNo. 1 and Citation No. 2 issued on February 16, 1978, are vacated and nopenalties are assessed.?SO ORDERED this 12th day of September, 1978, inAtlanta, Georgia.?JOHN J. LARKINJudge[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 Rulesof Civil Procedure are applicable to Commission proceedings by section 12(g) ofthe Act, 29 U.S.C. ? 661(f) and Commission rule 2(b), 29 C.F.R. ? 2200.2(b).FederalRule 12(e) provides:Rule 12. Defenses and Objections?When andHow Presented?By Pleading or Motion?Motion for Judgment on Pleadings.(e) MOTION FOR MORE DEFINITE STATEMENT. Ifa pleading to which a responsive pleading is permitted is so vague or ambiguousthat a party cannot reasonably be required to frame a responsive pleading, hemay move for a more definite statement before interposing his responsivepleadings. The motion shall point out the defects complained of and the detailsdesired. If the motion is granted and the order of the court is not obeyedwithin 10 days after notice of the order or within such other time as the courtmay fix, the court may strike the pleading to which the motion was directed ormake such order as it deems just.[5] The informationthat Respondent requested regarding Item 2 of Citation 1 is characteristic ofthe information requested for the remainder of the items.[6] The rule provides:Rule 53 Discovery depositions andinterrogatories.(a) Except by special order of theCommission or the Judge, discovery depositions of parties, intervenors, orwitnesses, and interrogatories directed to parties, intervenors, or witnessesshall not be allowed.(b) In the event the Commission or theJudge grants an application for the conduct of such discovery proceedings, theorder granting the same shall set forth appropriate time limits governing thediscovery.[7] The Secretary alsofiled two other motions that are not before us.[8] ? 2200.33 Employercontests.(a) Complaint(2) The complaint shall set forth allalleged violations and proposed penalties which are contested, stating withparticularity:(i) The basis for jurisdiction;(ii) The time, location, place, andcircumstances of each such alleged violation; and(iii) The considerations upon which theperiod for abatement and the proposed penalty on each such alleged violation isbased.[9] In its brief,Respondent incorporates by reference arguments made by it in previous filings.[10] Rule 75 wasamended 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 concernedwith Rule 75 prior to the amendment.[11] The new amendedRule 75, at 75(d), is to the same effect. Rule 75(d) provides, in pertinentpart:? 2200.75 INTERLOCUTORY APPEALS(d) DENIAL WITHOUT PREJUDICE. TheCommission?s action in declining to accept a certification or denying apetition for interlocutory appeal shall not preclude a party from raising anobjection to the judge?s interlocutory ruling in a petition for discretionaryreview.44 Fed. Reg. 70,106, 70,111 (1979) (to becodified in 29 C.F.R. ? 2200.75(d)).[12] At least two ofthe cases discussed by the parties in their briefs, Del Monte Corp.,supra, and B. W. Harrison Lumber Co., supra, concern the sufficiency ofpleadings under the particularity requirement of section 9(a) of the Act, 29U.S.C. ? 658(a), and as such are inapposite.[13] Rule 8. GeneralRules of Pleading(a) CLAIMS FOR RELIEF. A pleading whichsets forth a claim for relief, whether an original claim, counterclaim,cross-claim, or third-party claim, shall contain (1) a short and plainstatement of the grounds upon which the court?s jurisdiction depends, unlessthe court already has jurisdiction and the claim needs no new grounds ofjurisdiction to support it, (2) a short and plain statement of the claimshowing that the pleader is entitled to relief, and (3) a demand for judgmentfor the relief to which he deems himself entitled. Relief in the alternative orof several different types may be demanded.[14] Commission Rule33, 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 ofFederal Rule 8(a) to Commission proceedings.[15] Pursuant to Rule15(a) of the Federal Rules of Civil Procedure, which allows a party to amendhis pleading once as a matter of course before a responsive pleading is filed,the Secretary amended the complaint by specifying the dates of the allegedviolations.[16] Although only Item2 of Citation 1 is set out in full in this decision, item 1 of Citation 1 aswell as items 1, 2, and 3 of Citation 2 are also sufficient to preclude thegranting of a Motion for a More Definite Statement.[17] Further, we notethat the Secretary?s failure to file a more definite statement was done at hisrisk of noncompliance and was an effective vehicle to place the legal issuebefore the Commission on review. Had the Secretary complied with the judge?sorder to file a more definite statement, the subsequent hearing would havelikely rendered moot the issue of the propriety of the order. See, Mitchellv. E?Z Way Towers, Inc., 269 F.2d 126, 131 (5th Cir. 1959).”