790 F.2d 154 (D.C. Cir. 1986), 80-1446, Gates & Fox Co., Inc. v. Occupational Safety and Health Review Com'n

Docket Nº:80-1446, 80-1447, 84-1614 and 85-1054.
Citation:790 F.2d 154
Party Name:1986-1987 O.S.H.D. ( 27,585 GATES & FOX COMPANY, INC., Petitioner, v. OCCUPATIONAL SAFETY AND HEALTH REVIEW COMMISSION and William E. Brock, Secretary of Labor, Respondents. GATES & FOX COMPANY, INC., Petitioner, v. OCCUPATIONAL SAFETY AND HEALTH REVIEW COMMISSION and William E. Brock, Secretary of Labor, Respondents. GATES & FOX COMPANY, INC., Pet
Case Date:May 13, 1986
Court:United States Courts of Appeals, Court of Appeals for the District of Columbia Circuit
 
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Page 154

790 F.2d 154 (D.C. Cir. 1986)

1986-1987 O.S.H.D. ( 27,585

GATES & FOX COMPANY, INC., Petitioner,

v.

OCCUPATIONAL SAFETY AND HEALTH REVIEW COMMISSION and William

E. Brock, Secretary of Labor, Respondents.

GATES & FOX COMPANY, INC., Petitioner,

v.

OCCUPATIONAL SAFETY AND HEALTH REVIEW COMMISSION and William

E. Brock, Secretary of Labor, Respondents.

GATES & FOX COMPANY, INC., Petitioner,

v.

OCCUPATIONAL SAFETY AND HEALTH REVIEW COMMISSION and William

E. Brock, Secretary of Labor, Respondents.

William E. BROCK, Secretary of Labor, Petitioner,

v.

GATES & FOX COMPANY, INC., Respondent.

Nos. 80-1446, 80-1447, 84-1614 and 85-1054.

United States Court of Appeals, District of Columbia Circuit

May 13, 1986

        Argued Jan. 6, 1986.

        Harold Gordon, with whom Robert D. Roadman, Washington, D.C., was on brief, for petitioner in Nos. 80-1446, 80-1447 and 84-1614 and cross-respondent in No. 85-1054. William H. Roberge, Jr., Silver Spring. Md., also entered an appearance for petitioner in Nos. 80-1446 and 80-1447.

        Kenneth Hellman, Atty., U.S. Dept. of Justice, Washington, D.C., for respondents in Nos. 80-1446, 80-1447 and 84-1614 and for cross-petitioner in No. 85-1054.

        Joseph M. Woodward, Atty., U.S. Dept. of Labor, Washington, D.C., was on brief, for respondents in Nos. 80-1446, 80-1447 and 84-1614 and for cross-petitioner in No. 85-1054.

Page 155

        Anthony J. Steinmeyer and Marleigh D. Dover, Atty., Dept. of Justice, Washington, D.C., entered appearances for respondents in Nos. 80-1446 and 80-1447.

        Linton W. Hengerer and Judith N. Macaluso, Attys., U.S. Dept. of Labor, Arlington, Va., entered appearances for petitioner in No. 85-1054.

        Before WALD, SCALIA and SILBERMAN, Circuit Judges.

        Opinion for the Court filed by Circuit Judge SCALIA.

        SCALIA, Circuit Judge:

        Gates & Fox Company, Inc., challenges its citation for violating 29 C.F.R. Sec. 1926.800(b)(3) (1985), a safety regulation which requires companies engaged in excavating tunnels and shafts to provide their employees with rescue equipment in certain circumstances. The issue we address is whether the regulation describes the circumstances with sufficient clarity to provide constitutionally adequate warning of the conduct prohibited.

        I

        In 1978, Gates & Fox worked as a subcontractor on the extension of the Metro subway system in northwest Washington, D.C. The company was responsible for constructing an entrance beam connecting a vertical shaft to a completed underground tunnel at the Brandywine Street worksite. On April 17, 1978, an Occupational Safety and Health Administration compliance officer cited Gates & Fox for violating 29 C.F.R. Sec. 1926.800(b)(3), an OSHA regulation applicable to tunnels and shafts which provides:

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