D.C. Circuit Decision on "Unit of Prosecution" Doctrine in Civil Enforcement

Today, the U.S. Court of Appeals issued an interesting decision in a case involving the "unit of prosecution," a doctrine well-known in criminal enforcement but less frequently raised in civil regulatory enforcement. In National Association of Home Builders v. OSHA, No. 09-1053, three trade associations had challenged the Secretary of Labor's amendment of regulations under the Occupational Safety and Health Act "to clarify that an employer’s failure to provide respirators or workplace training constitutes not one violation of the applicable health and safety standards, but separate violations for each employee who did not receive the respirator or training." (Slip op. at 1)

The Secretary did so after a 2005 decision by the Occupational Safety and Health Review Commission (OSHRC), an independent tribunal, involving an employer's failure to provide asbestos training or respirators to 11 employees. Although the Secretary cited Ho for 11 violations of the asbestos training standard and 11 violations of the respirator standard, the OSHRC rejected the Secretary's employee-by-employee approach. In essence, it held that the unit of prosecution under the Act was the failure to meet each standard with respect to the group as a whole, which would have inviolved only two violations. The OSHRC went further, however, and openly invited the Secretary to draft standards that prescribe individual units of prosecution.

Senior Circuit Judge A. Raymond Randolph, writing for the panel, rejected the petitioners' claim that the Secretary had no statutory authority to issue the amendments. Just as in criminal law, where a legislature defines the unit of prosecution by defining the violation, the court determined that in civil enforcement under the Act, "the Secretary stands in the shoes of the legislature. . . . In giving the Secretary the authority to define what constitutes a violation, see 29 U.S.C. §§ 654(a)(2), 655(b), the Act necessarily gave the Secretary the authority to define the unit of prosecution." (Slip op. at 5-6) Although the petitioners asserted that the OSHRC alone had the responsibility to determine units of prosecution, on the theory that the assessment of penalties is the
OSHRC’s exclusive domain, the court tartly responded: "This is like saying that in a criminal case the court – not the legislature – defines the unit of prosecution because the court has exclusive authority to determine the punishment. That of course is not the law." (Slip op. at 6)