United States v. Didion Milling, Inc.
| Decision Date | 11 May 2023 |
| Docket Number | 22-cr-55-jdp |
| Parties | UNITED STATES OF AMERICA, Plaintiff, v. DIDION MILLING, INC., DERRICK CLARK, SHAWN MESNER, JAMES LENZ, JOSEPH WINCH, ANTHONY HESS AND JOEL NIEMEYER, Defendants. |
| Court | U.S. District Court — Western District of Wisconsin |
This order addresses most of the pending motions filed by defendants, grouped as follows: (1) motions to dismiss one or more counts; (2) the motion to sever Count 2; (3) motions to strike; and (4) defendants' discovery and other procedural motions. The court will address the government's motion for discovery, Dkt. 200, in a separate order.
Count 2 charges Didion with the willful violation of an OSHA regulation causing the death of an employee, in violation of 29 U.S.C. § 666(e). Count 4 charges all seven defendants with a conspiracy to commit multiple crimes. Count 7 charges five defendants with making or using false statements in a matter within the jurisdiction of OSHA. Count 8 charges Hess with obstructing an agency proceeding and Count 9 charges Clark with obstructing an agency proceeding. The regulatory section at issue in Count 2 is 29 C.F.R. § 1910.272(j) and Counts 4, 7, 8, and 9 incorporate that regulation by reference. See Dkt. 8, ¶¶ 51, 123, 126 and 128. Didion, Clark, and Hess challenge § 1910.272(j) as unconstitutionally vague and seek dismissal of Counts 2, 4 7, 8, and 9 on that ground.
Section 1910.272(j) is the Grain Handling Standard, the purpose of which is to control grain dust fires and explosions in facilities that process grain:
Scope. This section contains requirements for the control of grain dust fires and explosions, and certain other safety hazards associated with grain handling facilities. It applies in addition to all other relevant provisions of part 1910 ().
29 C.F.R. § 1910.272(a). The specific regulation charged in the indictment involves the requirement that grain handling facilities have a housekeeping program:
The employer shall develop and implement a written housekeeping program that establishes the frequency and method(s) determined best to reduce accumulations of fugitive grain dust on ledges, floors, equipment, and other exposed surfaces.
29 C.F.R. § 1910.272(j)(1). The indictment alleges that Didion did not have any housekeeping program specifically for the control of fire and explosion, although it had a written sanitation program for food safety. The indictment charges Didion with the failure to implement any dust control program, even the sanitation program, causing the death of employees.
Didion contends that the housekeeping program requirement in § 1910.272(j)(1) is unconstitutionally vague because it provides no determinable standard for whether a program “best” reduces accumulations of dust. Didion thus mounts a facial challenge to the constitutionality of the criminal enforcement of § 1910.272(j)(1).
Due process requires that a law clearly define its prohibitions. Karlin v. Foust, 188 F.3d 446, 458 (7th Cir. 1999) (citing Grayned v. City of Rockford, 408 U.S. 104, 108 (1972)). The required clarity serves two purposes. First, a statute must “give the person of ordinary intelligence a reasonable opportunity to know what is prohibited, so that he may act accordingly.” Grayned, 408 U.S. at 108. Put simply, statutes must provide “fair warning.” Id.
Second, a statute must provide “explicit standards for those who apply them.” Id. “A vague law impermissibly delegates basic policy matters to policemen, judges, and juries for resolution on an ad hoc and subjective basis, with the attendant dangers of arbitrary and discriminatory application.” Id. at 108-09. A statute is unconstitutionally vague if it fails to provide either fair notice or standards for fair enforcement. But “the more important aspect of vagueness doctrine ‘is not actual notice, but the other principal element of the doctrine-the requirement that a legislature establish minimal guidelines to govern law enforcement.'” Kolender v. Lawson, 461 U.S. 352, 358 (1983) (quoting Smith v. Goguen, 415 U.S. 566, 574 (1974)).
Due process does not require mathematical precision; a statute may impose an imprecise yet comprehensible standard. See Grayned, 408 U.S. at 110. “The degree of vagueness that the Constitution tolerates-as well as the relative importance of fair notice and fair enforcement- depends in part on the nature of the enactment.” Village of Hoffman Estates v. Flipside, Hoffman Estates, Inc., 455 U.S. 489, 498 (1982). Courts tend to be more lenient in evaluating civil statutes, “because the consequences of imprecision are qualitatively less severe.” Id. at 499. But when a constitutional right is at stake, the court must apply a “more stringent vagueness test.” Karlin, 188 F.3d at 458. The housekeeping program requirement is itself a civil regulation, but because it serves here as the basis for a criminal charge, it is subject to the more demanding review required of criminal law. See Ford Motor Co. v. Texas Dept. of Transp., 264 F.3d 493, 508 (5th Cir. 2001) (“Civil statutes or regulations that contain quasi-criminal penalties may be subject to the more stringent review afforded criminal statutes.”); Chatin v. Coombe, 186 F.3d 82, 86-87 (2d Cir. 1999) ().
The first problem with Didion's motion is the longstanding general rule that one whose conduct clearly falls within the scope of a law cannot bring a facial vagueness challenge. United States v. Cook, 970 F.3d 866, 873 (7th Cir. 2020). Here, Didion is not charged with maintaining a housekeeping program that failed to meet the purportedly vague “best” standard. As the government puts it, “the allegations in the indictment include that Didion did not follow its own housekeeping plan, such as it was.” Dkt. 176, at 18. As the court reads the indictment, it also alleges that Didion failed to develop a written housekeeping program designed for fire and explosion prevention at all. Dkt. 8, ¶ 37. In neither case-whether the charge is failing to develop a written plan or failing to implement one-is Didion charged with having a plan that failed to meet the challenged “best” standard.
Didion argues that the general rule doesn't apply when the challenged law has no ascertainable standard for measuring compliance, because in such a case, the court would not be able to tell whether the challenger's conduct clearly falls within the standard. Dkt. 194, at 5. Didion relies on primarily on Johnson v. United States, 576 U.S. 591 (2015), which held that the residual clause in the Armed Career Criminal Act was unconstitutionally vague. The Supreme Court granted certiorari to decide whether Minnesota's offense of unlawful possession of a short-barreled shotgun was a violent felony under the residual clause. But the Court, on its own initiative, asked for reargument on the issue of vagueness. So, although Johnson held that the residual clause was facially vague, the case did not involve a facial challenge brought by one whose conduct was plainly within the scope of the challenged law. Johnson did not expressly abrogate the general rule that limits who may bring facial vagueness challenges.
In Cook, the Seventh Circuit rejected the notion that, after Johnson, facial challenges can be brought by “any defendant who can postulate doubts as to what particular conduct a criminal statute does or does not reach.” 970 F.3d at 876. Johnson laid to rest the notion that a defendant must show that the challenged statute is vague in every application. Id. And Johnson also makes clear that a showing that some conduct plainly falls within the scope of the statue does not save it from a vagueness challenge. Id. But the Seventh Circuit regarded the Armed Career Criminal Act as sui generous, because the defendant's predicate offenses are subject to the rigors of categorical analysis, in which the defendant's own conduct is never at issue. The bottom line is that neither Johnson nor Cook abrogates the general rule that one whose conduct clearly falls within the scope of a statue is not entitled to challenge the statue as vague based on hypotheticals that don't apply to it. Didion is not charged with failing to meet the standard that it now challenges as vague, so it is not entitled to challenge the constitutionality of that standard.
Nevertheless, the court will briefly consider the merits of Didion's vagueness challenge. Didion's core argument is that the housekeeping program requirement is vague because it doesn't have an objective, measurable standard for grain handling facilities other than grain elevators. This argument rests on an assumption that § 1910.272(j)(1) threatens employers with prosecution if they do not correctly determine what the “best” method of reducing dust accumulation. But that is not the most reasonable reading of the regulation. A better reading is that the regulation requires employers to develop a program that the employer has “determined” is best in its own judgment to reduce dust accumulation. In other words, the employer is required to develop a program in good faith, not to develop the “best” program under some unknowable standard.
This conclusion is supported by OSHA's announcement of the final rule:
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