Doe v. Scalia

58 F.4th 708

Jane DOE I; Jane Doe II; Jane Doe III; Friends of Farmworkers, Inc., d/b/a Justice at Work in its capacity as Employee Representative

v.Eugene SCALIA, in his official capacity as United States Secretary of Labor; Occupational Safety and Health Administration; United States Department of Labor

Jane Doe I; Jane Doe III; Friends of Farmworkers, Inc., d/b/a Justice at Work in its capacity as Employee Representative, Appellants

No. 21-2057

United States Court of Appeals, Third Circuit.

Argued September 7, 2022

Filed: January 31, 2023

Samuel H. Datlof, Justice at Work, 990 Spring Garden Street, Suite 300, Philadelphia, PA 19123, Karla Gilbride, David S. Muraskin [ARGUED], Public Justice, 1620 L Street, N.W., Suite 630, Washington, DC 20036, Lerae Kroon, Justice at Work, 5907 Penn Avenue, Suite 320, Pittsburgh, PA 15206, David H. Seligman, Towards Justice, 2840 Fairfax Street, Suite 220, Denver, CO 80207, Counsel for Appellants

Amy S. Tryon [ARGUED], United States Department of Labor, Office of the Solicitor, 200 Constitution Avenue, N.W., Suite N-2119, Washington, DC 20210, Counsel for Appellees

Sarah R. Schalman-Bergen, Litchten & Liss-Riordan, 729 Boylston Street, Suite 2000, Boston, MA 02116, Counsel for Amicus Appellants

Before: JORDAN, HARDIMAN, and SMITH, Circuit Judges

OPINION OF THE COURT

SMITH, Circuit Judge.

Before us is the appeal by Jane Doe I et al. ("Plaintiffs") from an order of the United States District Court for the Middle District of Pennsylvania dismissing Plaintiffs' claims. The crux of this case concerns the extent to which Section 13(d) of the Occupational Safety and Health Act of 1970 ("OSH Act"),¹ 29 U.S.C. § 662(d) gives employees a private right of action to remediate dangers in the workplace—specifically, whether an employee may maintain an action against the Secretary of Labor seeking relief for dangerous working conditions after the Department of Labor has completed enforcement proceedings. That question is a matter of first impression for this Court, and for our sister courts of appeals. For the reasons set forth below, we hold that the OSH Act mandates the dismissal of a § 662(d) claim once the Department has completed its enforcement proceedings. We will affirm the District Court's dismissal of Plaintiffs' claims.

I. BACKGROUND

We begin with an overview of the OSH Act, some command of which is necessary to understand this case and the parties' respective positions. From there, we will outline the factual and procedural background before turning to the merits of this dispute.

A. Overview of the OSH Act

In the OSH Act of 1970, Congress created the Occupational Safety and Health Administration ("OSHA" or "the Agency") to develop and enforce workplace safety standards. In general, OSHA, rather than private litigants, is responsible for assuring workplace safety. In furtherance of that objective, the OSH Act funnels safety grievances through OSHA's administrative processes.

1. 29 U.S.C. §§ 657 – 660

Section 657 establishes OSHA's inspection authority and allows employees who suspect workplace safety violations to "request an inspection [by OSHA] by giving notice to the Secretary ... of such violation or danger." 29 U.S.C. 657(a), (f)(1). However, § 657 gives OSHA the final determination as to whether "there are no reasonable grounds to believe that a violation or danger exists." Id. § 657(f)(1).

Section 658 authorizes OSHA to issue "citations" for any violations of the OSH Act or OSHA's regulations which are discovered during an inspection. However, OSHA may issue such a citation only "within six months following the occurrence of any violation." Id. § 658(c).

Section 659 outlines OSHA's standard "enforcement procedures," under which employers may contest an OSHA citation issued pursuant to § 658 but employees may contest only the "period of time fixed in the citation for the abatement of a violation." Id. § 659(c). When an employer or an employee initiates a challenge under § 659(c), OSHA is charged with resolving the dispute through its administrative processes. Id.

Section 660 authorizes judicial review of OSHA's orders issued under § 659(c). Id. § 660. The scope of judicial review under § 660 is narrow: a reviewing circuit court must defer to OSHA's well-supported factual findings and generally may not entertain novel arguments that a party did not raise during OSHA's administrative proceeding. Id. § 660(a).

2. 29 U.S.C. § 662

In addition to the OSH Act's standard enforcement procedures, Congress also provided expedited mechanisms in § 662 for remedying workplace hazards requiring immediate attention. The expedited mechanisms provide that the Secretary may seek injunctive relief against an employer and an employee may seek a writ of mandamus against the Secretary to address "imminent danger[s]" in the workplace. Id. § 662(a), (d).

Section 662(a) gives U.S. district courts "jurisdiction, upon petition of the Secretary, to restrain any ... [workplace hazards] which could reasonably be expected to cause death or serious physical harm immediately or before the imminence of such danger can be eliminated through the enforcement procedures otherwise provided by this chapter." Id. § 662(a). Section 662(b), in turn, gives the district courts "jurisdiction to grant such injunctive relief or temporary restraining order pending the outcome of an enforcement proceeding pursuant to this chapter. " Id. § 662(b) (emphasis added).

Finally, should OSHA "arbitrarily or capriciously fail[ ] to seek relief under this section," § 662(d) authorizes a limited private right of action. Id. § 662(d). Specifically, § 662(d) provides employees the right to "bring an action against the Secretary ... for a writ of mandamus to compel the Secretary to seek such an order [under § 662(a) ] and for such further relief as may be appropriate." Id. § 662(d).

B. Factual Background

Plaintiffs are employees at the Maid-Rite Specialty Foods ("Maid-Rite") meatpacking plant (the "Plant") located in Dunmore, Pennsylvania.² They seek to employ the OSH Act's limited private right of action under § 662(d), contending that OSHA failed to remedy inadequate COVID-19 mitigation measures at the Plant.

The Plant's workers were exposed to COVID-19 for the first time in early 2020. As the virus spread, Plaintiffs became concerned that Maid-Rite had taken inadequate COVID-19 prevention measures. While Maid-Rite had implemented some preventative measures such as issuing masks and face shields, Plaintiffs believed Maid-Rite was not doing enough to assure worker safety. For example, Plaintiffs alleged that despite the threat of COVID-19, "Maid-Rite ... forced workers to work shoulder-to-shoulder on its production line." J.A. 77.

C. OSHA Investigation

Pressing their concerns, Plaintiffs sent an inspection request to OSHA on May 19, 2020.³ In that request, Plaintiffs asked for "an investigation under 29 U.S.C. § 657(f) because the [ ] conditions and practices [at the Plant] pose[d] an imminent danger" to employees working there. J.A. 147.

Two days later, OSHA notified Maid-Rite of Plaintiffs' inspection request and asked for a response within a week. OSHA also notified Plaintiffs that the Agency would treat Plaintiffs' inspection request as "non-formal," which meant that the initial handling of Plaintiffs' inspection request would proceed through document exchange. J.A. 143 ¶ 8. OSHA advised Plaintiffs to notify the Agency if by May 28, 2020 Maid-Rite had not corrected its COVID-19 prevention measures.

Plaintiffs followed up with a letter to OSHA dated May 27, 2020. In that letter, Plaintiffs asserted that Maid-Rite workers continued to face an imminent danger of COVID-19 spread and expressed concern that OSHA had not addressed that danger beyond confirming receipt of Plaintiffs' inspection request. Plaintiffs also contacted the Agency on June 2, 2020, requesting Maid-Rite's response to OSHA's outreach and reasserting that conditions had not changed since Plaintiffs sent their May 19 inspection request.

Plaintiffs sent yet another letter to OSHA on June 29th, expressing dissatisfaction with how it was handling Plaintiffs' inspection request. Plaintiffs again asserted that "Maid-Rite has made no changes in the [Plant]." J.A. 166.

On July 8, 2020, OSHA informed Maid-Rite that OSHA would be inspecting the Plant the following day. In a hearing before the District Court on July 31, 2020, OSHA acknowledged that advance notice of an inspection "was not a typical practice," J.A. 222, but that the need "to protect [OSHA's] employees" from COVID-19 necessitated such notice. J.A. 223. In Plaintiffs' view, the lack of a surprise element "allow[ed] Maid-Rite to direct its employees to change their conduct and create[d] the appearance [that] the [Plant] was closer in line with the OSHA and CDC [COVID-19 mitigation] guidance." Doe App. Br. pp. 20–21.

After completion of the inspection, OSHA determined that conditions at the Plant did not constitute an imminent danger. For that reason, OSHA did not seek expedited relief pursuant to § 662. Yet, the Agency's investigation of the Plant under § 657(a), as part of OSHA's standard enforcement proceedings, remained an ongoing matter.

D. Procedural History

On July 22, 2020, Plaintiffs filed a Complaint and Emergency Petition for Emergency Mandamus Relief ("Complaint") in the U.S. District Court for the Middle District of Pennsylvania against the Secretary and OSHA. Plaintiffs sought relief under § 662(d) and alleged that OSHA was failing to take action to address what were insufficient COVID-19 prevention measures at the Plant. On July 28, 2020, OSHA moved to dismiss the Complaint, asserting that employee-initiated relief under § 662(d) is proper only when the Secretary of Labor arbitrarily and capriciously declines to take legal action upon the recommendation of an OSHA inspector.

While OSHA's motion to dismiss was pending in the District Court, OSHA concluded its standard enforcement proceedings against Maid-Rite and declined to...