Magazine article Occupational Hazards

Repeat OSHA Prosecutions Violate the Double Jeopardy Clause

Magazine article Occupational Hazards

Repeat OSHA Prosecutions Violate the Double Jeopardy Clause

Article excerpt

Are OSHA fines double jeopardy when an employer has already been punished for the same violations in criminal proceedings?

The U.S. Court of Appeals for the 7th Circuit in Chicago has held that the Double Jeopardy Clause of the Constitution bars civil penalties from being assessed under the federal Occupational Safety and Health Act against an employer who already was punished for the same violations in a separate criminal proceeding.

Background

The Fifth Amendment's Double Jeopardy Clause states that no person "shall...be subject for the same offense to be twice put in jeopardy of life or limb." Section 17(e) of the OSH Act imposes criminal penalties (fines and imprisonment) against an employer whose willful violation of an OSHA standard causes the death of an employee. Section 17(a) imposes civil monetary penalties against an employer who willfully violates the OSH Act.

S.A. Healy Co. was punished under both provisions. In November 1988, three Healy employees were killed when methane gas exploded in a Milwaukee sewer tunnel Healy was digging. Healy was indicted under Section 17(e). OSHA also sought civil penalties against the company for the same violations, but the civil case was stayed until after completion of the criminal case. After a jury found that the deaths were caused by Healy's willful violations of OSHA construction standards requiring nonsparking electrical equipment, fines of $750,000 were imposed.

After Healy's conviction, an administrative law judge imposed civil penalties of $318,500 (later reduced to $249,900). Healy argued that this imposition of successive criminal and civil penalties violated the Double Jeopardy Clause.

The Occupational Safety and Health Review Commission disagreed. The commission relied heavily on the Supreme Court's language in United States v. Halper, 490 U.S. 435 (1989), in which a physician had committed a series of small Medicare frauds that caused the government $585 in losses. After the physician was criminally convicted, the government sought civil penalties of $130,000 under the False Claims Act, which prescribes a civil penalty of $2,000 per false claim plus double the government's damages.

The Supreme Court held that the second prosecution of Dr. Halper violated the Double Jeopardy Clause. Inasmuch as the civil penalty exceeded the government's out-of-pocket losses, it was not solely remedial but also served to either deter or take retribution upon wrongdoers.

In the Healy case, the commission held that this language from Halper permitted successive civil penalties because (1) the costs of twice investigating and prosecuting Healy did not exceed the maximum permissible civil penalty, and (2) civil penalties serving the "remedial" goal of deterring OSHA violations are not punishment.

Court's Decision

The 7th Circuit reversed. It rejected the argument that, because the OSH Act is "remedial," its civil penalties are not punishment triggering the Double Jeopardy Clause. The court pointed out that the argument would mean that the Double Jeopardy Clause would not be triggered even by OSHA criminal penalties. It noted that countless so-called "remedial" statutes ranging from environmental to drug laws use criminal penalties, and that whether a statute promotes health and safety "does not prevent a sanction for violating the statute from being punishment. …

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