`
`IN THE UNITED STATES DISTRICT COURT
`FOR THE WESTERN DISTRICT OF MISSOURI
`
`
`RURAL COMMUNITY WORKERS ALLIANCE
`and JANE DOE,
`
`
`
`Plaintiffs,
`
`
`
`
`
`vs.
`
`Case No. 5:20-cv-06063-DGK
`
`SMITHFIELD FOODS, INC. and SMITHFIELD
`FRESH MEATS CORP.,
`
`Defendants.
`
`
`
`
`
`
`
`
`
`
`DEFENDANTS’ SUPPORTING SUGGESTIONS IN SUPPORT OF
`EMERGENCY MOTION TO DISMISS, OR IN THE ALTERNATIVE TO STAY,
`BASED ON PRIMARY JURISDICTION AND/OR BURFORD ABSTENTION
`
`
`
`Case 5:20-cv-06063-DGK Document 29 Filed 04/27/20 Page 1 of 25
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`

`

`
`
`
`I.
`
`II.
`
`TABLE OF CONTENTS
`
`Page
`
`PRELIMINARY STATEMENT ........................................................................................ 1
`
`FACTS ................................................................................................................................ 2
`
`A.
`
`B.
`
`C.
`
`D.
`
`E.
`
`F.
`
`Smithfield and the Plant .......................................................................................... 2
`
`Plaintiffs’ Allegations and Request for Relief ........................................................ 4
`
`OSHA’s Request for Information ........................................................................... 5
`
`OSHA’s Role .......................................................................................................... 5
`
`Plaintiffs’ Criticisms of OSHA ............................................................................... 7
`
`State and Local Public Health Authority Over COVID-19 .................................... 8
`
`III.
`
`ARGUMENT .................................................................................................................... 10
`
`A.
`
`The Court Should Dismiss or Stay This Action In Favor of OSHA’s
`Primary Jurisdiction Over Workplace Safety. ...................................................... 10
`
`1.
`
`2.
`
`Legal Standard for Invoking Primary Jurisdiction Doctrine..................... 10
`
`The Primary Jurisdiction Doctrine Applies Here. ..................................... 12
`
`B.
`
`This Court Should Abstain from Injecting Itself into Areas of Public
`Health Which Are Uniquely State Issues.............................................................. 15
`
`1.
`
`2.
`
`Legal standard for Burford abstention. ..................................................... 15
`
`The Court should abstain in favor of Missouri’s Public Health
`Agencies. ................................................................................................... 16
`
`IV.
`
`CONCLUSION ................................................................................................................. 18
`
`
`
`
`
`
`
`
`
`
`
`
`i
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`Case 5:20-cv-06063-DGK Document 29 Filed 04/27/20 Page 2 of 25
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`

`

`
`
`
`Cases
`
`TABLE OF AUTHORITIES
`
`Page(s)
`
`In re Abbott,
`954 F.3d 772 (5th Cir. 2020) ...................................................................................................14
`
`Access Telecommunications v. Southwestern Bell Tel. Co.,
`137 F.3d 605 (8th Cir. 1998) ...................................................................................................10
`
`Alaska State Employees Association, Local 52 v. SOA,
`3AN-20-056652CI ...................................................................................................................14
`
`Asarco, LLC v. NL Indus.,
`No. 11-00123-CV-SW-BP, 2013 U.S. Dist. LEXIS 43013 (W.D. Mo. Mar. 18,
`2013) ..................................................................................................................................10, 11
`
`Baxley v. Jividen,
`2020 WL 1802935 (W.D. Va. April 8, 2020) ..........................................................................14
`
`Bilden v. United Equitable Ins. Co.,
`921 F.2d 822 (8th Cir. 1990) ...................................................................................................15
`
`Burford v. Sun Oil Co.,
`319 U.S. 315 (1943) ......................................................................................................... passim
`
`Chlorine Inst., Inc. v. Soo Line R.R.,
`792 F.3d 903 (8th Cir. 2015) .............................................................................................10, 11
`
`Colorado River Water Conservation Dist. v. U.S.,
`424 U.S. 800 (1976) .................................................................................................................16
`
`Commonwealth of Pennsylvania v. Williams,
`294 U.S. 176 (1935) .................................................................................................................15
`
`Davies v. Nat’l Coop. Refinery Ass’n,
`963 F. Supp. 990 (D. Kan. 1998) .......................................................................................18, 19
`
`Heartland Hosp. v. Strangler,
`792 F.Supp. 670 (W.D. Mo. 1992) ..........................................................................................16
`
`Jacobson v. Mass.,
`197 U.S. 11 (1905) ...................................................................................................................14
`
`Johnson v. Collins Entertainment Co., Inc.,
`199 F.3d 710 (4th Cir. 1999) .............................................................................................15, 16
`
`-ii-
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`

`

`
`
`Lac D’Amiante du Quebec, Ltee v. Am. Home Assur. Co.,
`864 F.2d 1033 (3d Cir. 1988)...................................................................................................16
`
`Melahn v. Pennock Insurance Inc.,
`965 F.2d 1497 (8th Cir. 1992) .................................................................................................15
`
`Nader v. Allegheny Airlines,
`426 U.S. 290 (1976) .................................................................................................................11
`
`Reiter v. Cooper,
`507 U.S. 258 (1993) ...........................................................................................................10, 11
`
`Sierra Club v. City of San Antonio,
`112 F.3d 789 (5th Cir. 1997) ...................................................................................................17
`
`Sprint Spectrum L.P. v. AT&T Corp.,
`168 F.Supp.2d 1095 (W.D. Mo. 2001) ....................................................................................11
`
`United States v. Western Pac. R.R. Co,
`352 U.S. 59 (1956) ...................................................................................................................10
`
`Valentine v. Collier,
`__ F.3d __, 2020 WL 1934431 (5th Cir. Apr. 22, 2020) .........................................................14
`
`Wolfson v. Mutual Benefit Life Ins. Co.,
`51 F.3d 141 (8th Cir. 1995) .....................................................................................................15
`
`Statutes
`
`29 U.S.C. § 651 ............................................................................................................................5, 6
`
`29 U.S.C. § 658(a) ...........................................................................................................................7
`
`Mo. Rev. Stat. Ann. § 192.005 ........................................................................................................9
`
`Mo. Rev. Stat. Ann. § 192.290 ........................................................................................................8
`
`Regulations
`
`29 C.F.R. § 1904 ..............................................................................................................................6
`
`29 C.F.R. § 1910 .................................................................................................................... passim
`
`
`
`
`
`-iii-
`Case 5:20-cv-06063-DGK Document 29 Filed 04/27/20 Page 4 of 25
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`

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`
`
`
`
`I.
`
`PRELIMINARY STATEMENT
`
`Plaintiffs Rural Community Workers Alliance (“RCWA”) and Jane Doe (“Plaintiffs”)
`
`initiated this action on April 23, 2020 seeking extraordinary relief in the form of a mandatory
`
`injunction. In support, they have offered allegations that grossly misrepresent the substantial
`
`safety measures that Smithfield has implemented at its Milan, Missouri Plant (the “Plant”). It is
`
`not surprising that not a single Smithfield employee was willing to apply their name to this baseless
`
`lawsuit. Plaintiffs’ request that this Court develop, monitor, and administer Smithfield’s
`
`occupational health and safety program at the Plant is unprecedented and improper.
`
`In any event, the Court never needs to reach the merits of the Complaint or consider
`
`Plaintiffs’ overreaching request for injunctive relief. Rather, pursuant to the primary jurisdiction
`
`doctrine, the Court can—and should—dismiss or stay this suit in favor of the Occupational Health
`
`and Safety Administration’s (“OSHA”) regulatory authority over workplace safety issues and the
`
`Missouri Department of Health and Senior Services’ (“MDHSS”) jurisdiction over public health
`
`in Missouri. Even if the Court does not dismiss or stay the suit because OSHA has primary
`
`jurisdiction, there is an independent basis for dismissal under Burford abstention.
`
`
`
`Indeed, OSHA is already in the process of exercising its jurisdiction at the Plant. On the
`
`day before Plaintiffs filed their Complaint in this case, OSHA sent Smithfield a “Rapid Response
`
`Investigation” requesting information regarding its COVID-19 work practices and infection at the
`
`Plant, giving Smithfield only seven days to respond. Smithfield is preparing its response for
`
`submission on April 29, and intends to cooperate fully with OSHA. The Court should defer to
`
`OSHA and its expertise to investigate and enforce any purported safety violations at the Plant.
`
`Indeed, on Sunday, April 26, 2020, OSHA and the Centers for Disease Control (“CDC”) joined
`
`together and issued specific COVID-19 guidance for meat processing plants.
`
`-1-
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`In addition to OSHA’s oversight, the MDHSS has the authority to implement all
`
`appropriate and necessary measures to protect the public from the spread of COVID-19. And
`
`another layer of public health oversight—county public health administrators—provides further
`
`protection. Indeed, where food processing plants in Missouri have seen actual employee
`
`infections—as opposed
`
`to speculation about
`
`future
`
`infections—county public health
`
`administrators have worked closely with plants to protect employees and the public.
`
`Public policy strongly supports the Court deferring to OSHA and MDHSS on these issues.
`
`Smithfield is an essential business critical to the nation’s food supply. There are many other
`
`essential businesses operating throughout the country that are critical to the country’s survival.
`
`Subjecting these entities to private lawsuits for injunctive relief, in which safety standards are
`
`determined piecemeal by plaintiffs and the courts, will result in inconsistent rulings and
`
`uncertainty for both employers and employees.
`
`The workplace safety and public health concerns created by the novel coronavirus are both
`
`outside the conventional experience of judges and squarely within the technical and policy
`
`expertise of OSHA and MDHSS. The agencies are already responding to these concerns in real
`
`time, adapting as new facts emerge. That is not a role that a district court can or should take on.
`
`Plaintiffs are wrong to ask the Court to interpose itself between these agencies and essential
`
`businesses like Smithfield’s Milan Plant. Considerations of institutional competency and prudence
`
`militate strongly in favor of a dismissal or stay on primary jurisdiction, or a dismissal based on
`
`Burford abstention, and the Court should grant Smithfield’s Motion.
`
`A.
`
`Smithfield and the Plant
`
`II.
`
`FACTS
`
`
`
`The named defendants in this action are Smithfield Foods, Inc. and its wholly owned
`
`subsidiary, Smithfield Fresh Meats Corp. (collectively, “Smithfield”). The Plant at issue is a meat
`
`-2-
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`
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`processing facility, which is an essential business that has lawfully continued to operate under the
`
`Governor of Missouri’s stay at home order.1 The Plant and its operations constitute “critical
`
`infrastructure” pursuant to the guidelines issued by the U.S. Department of Homeland Security,
`
`Cybersecurity & Infrastructure Security Agency, which were adopted in Missouri’s stay at home
`
`order.2
`
`The Plant has voluntarily implemented substantial workplace safety measures in response
`
`to COVID-19, including providing personal protective equipment such as masks and face shields
`
`to all workers and persons who enter the building, social distancing both in common areas,,
`
`installing partitions between line workers, conducting temperature scans, providing multiple hand-
`
`sanitizer stations, implementing additional sanitation of workspaces and other areas, and
`
`encouraging workers to stay home when sick with pay and without penalty. These measures will
`
`be
`
`further detailed
`
`in Smithfield’s
`
`response
`
`to Plaintiffs’ Motion
`
`for Preliminary
`
`Injunction/Temporary Restraining Order to be filed on April 29, 2020.
`
`As of the date of this filing, there have been no confirmed diagnoses of COVID-19 at the
`
`Plant.3 Moreover, to Smithfield’s knowledge, there have been no positive cases reported in
`
`Sullivan County (which surrounds the city of Milan). A majority of counties adjacent to Sullivan
`
`
`1 Mo. Exec. Order (April 3, 2020), https://governor.mo.gov/priorities/stay-home-order, see Exhibit 1.
`2 See id. Item 2 (incorporating CISA’s definition of “critical infrastructure); U.S. CYBERSECURITY AND
`INFRASTRUCTURE SECURITY AGENCY, ADVISORY MEMORANDUM ON IDENTIFICATION OF ESSENTIAL CRITICAL
`INFRASTRUCTURE
`WORKERS
`DURING
`COVID-19
`RESPONSE
`(April
`17,
`2020),
`https://www.cisa.gov/sites/default/files/publications/Version_3.0_CISA_Guidance_on_Essential_Critical_Infrastruc
`ture_Workers_4.pdf, p. 8 (defining “critical infrastructure” employees to include “food manufacturer employees,”
`such as those working in “livestock [and] poultry … slaughter facilities”).
`[The order references Version 2.0 of the guidance, which appears to be no longer publicly available, as it was removed
`from the CISA website after Version 3.0 was published. A description of the update on CISA’s website indicates the
`definitions regarding food processing plants remain unchanged. See https://www.cisa.gov/publication/guidance-
`essential-critical-infrastructure-workforce.]
`3
`SERVICES, COVID-19 OUTBREAK GUIDE,
`SENIOR
`See MISSOURI DEPT. OF HEALTH &
`https://health.mo.gov/living/healthcondiseases/communicable/novel-coronavirus/results.php (last accessed April 27,
`2020).
`
`
`-3-
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`County also have zero positive cases to date, and the case counts are relatively low in the few
`
`adjacent counties that have reported positive cases.4
`
`B.
`
`Plaintiffs’ Allegations and Request for Relief
`
`Plaintiffs assert claims about Smithfield’s safety practices as they relate to potential
`
`COVID-19 exposure and seek declaratory and injunctive relief. See Compl. However, Plaintiffs
`
`do not allege that there have been any positive diagnoses associated with the Plant, and as noted
`
`above, Smithfield is aware of none.
`
`To be clear, this is not a suit for personal injury or wrongful death. RCWA does not allege
`
`that any of its members have contracted COVID-19 at the Plant or otherwise. Likewise, Jane Doe
`
`does not allege that she has tested positive for COVID-19. Indeed, Plaintiffs stipulate that they
`
`are not seeking money damages. Compl. at ¶ 16.
`
`Plaintiffs seek a declaration that “Smithfield’s failure to implement appropriate worker
`
`protections during the COVID-19 crisis constitutes a public nuisance under Missouri law and a
`
`violation of the right to a safe work place under Missouri law.” Compl. at ¶ 123. However, the
`
`primary relief sought by Plaintiffs is a Court Order, in the form of an injunction, requiring
`
`Smithfield to adopt a list of work practices, many of which are vague and ill-defined, such as
`
`“providing sufficient personal protective equipment” and “creating and implementing a social
`
`distancing plan for the Plant” and “creating and implementing a protocol to clean surfaces.”
`
`Complaint at ¶ 123. Plaintiffs also request that the Court require Smithfield to allow Plaintiffs’
`
`experts to inspect the plant to identify additional precautions that Smithfield should take. Id. at ¶
`
`123(viii). Smithfield will demonstrate in its response to Plaintiffs’ Motion for Preliminary
`
`
`4 Compare the number of positive cases in neighboring counties (Adair - 12, Livingston - 2, Linn - 5, and Macon - 2)
`with other significant outbreak locations in the state (St. Louis County - 2,897, Kansas City - 500, Greene County -
`83). Id.
`
`-4-
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`
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`Injunction that it has already implemented all of the safety measures for which Plaintiffs’ seek
`
`injunctive relief.
`
`C.
`
`OSHA’s Request for Information
`
`On the day before this case was filed, Smithfield received a request for information from
`
`OSHA regarding its COVID-19 safety practices at the Plant. See Exhibit 2. OSHA has directed
`
`Smithfield to respond to the request for information by Wednesday, April 29, 2020. Id. Smithfield
`
`intends to cooperate fully with OSHA in this matter.
`
`D.
`
`OSHA’s Role
`
`The Occupational Safety and Health Act, 29 U.S.C. §§ 651, et. seq. (the “Act”), was
`
`enacted “to assure so far as possible every working man and woman in the Nation safe and
`
`healthful working conditions and to preserve our human resources.” 29 U.S.C. § 651(b). The Act
`
`authorizes “the Secretary of Labor to set mandatory occupational safety and health standards
`
`applicable to businesses affecting interstate commerce.” Id. at § 651(b)(3).
`
`OSHA is the federal agency charged with administering the Act. OSHA provides a
`
`procedure for an employee who is concerned about workplace safety to file a confidential
`
`complaint requesting that OSHA initiate an investigation into the employer’s work practices.5
`
`The Act provides for “an effective enforcement program.” Id. at § 651(b)(10). The Act
`
`authorizes OSHA to inspect or investigate any place of employment in order to carry out the
`
`purposes of the Act. Id. at § 657. OSHA may issue a citation to an employer for any violation of
`
`the Act, including the General Duty Clause, which requires an employer to furnish “a place of
`
`employment which [is] free from recognized hazards that are causing or are likely to cause death
`
`
`5 See https://www.osha.gov/workers/file_complaint.html
`
`
`
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`
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`or serious harm.” Id. at § 658. Any such citation “shall fix a reasonable time for the abatement of
`
`the violation.” Id. The Act provides for additional enforcement mechanisms if an employer does
`
`not correct a violation for which a citation has been issued. Id. at § 659. The Act further provides
`
`for penalties for violations and/or failure to abate. Id. at § 666.
`
`The Act specifically includes procedures to address an imminent danger. Id. at § 662. The
`
`Act permits the Secretary of Labor to petition the court
`
`to restrain any conditions or practices in any place of employment which are such
`that a danger exists 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 [the Act].
`
`Id. The Act authorizes an employee to file a writ of mandamus to compel the Secretary to seek
`
`such an order if the employee believes that the Secretary “arbitrarily or capriciously fails to seek
`
`relief.” Id.6 In such a case, OSHA is directly involved, and the court is not acting without the
`
`agency’s participation.
`
`OSHA has published “Guidance on Preparing Workplaces for COVID-19,” which makes
`
`clear that the agency will use the General Duty Clause to enforce any unsafe conditions relating to
`
`COVID-19. Exhibit 3 at 4. OSHA’s General Duty Clause provides that “employers are required
`
`to provide their employees with a workplace free of recognized hazards likely to cause death or
`
`serious physical harm.” Id. OSHA has also issued Interim Enforcement Guidance for Coronavirus
`
`Disease 2018 (issued April 13, 2020), which identifies applicable standards that may apply to
`
`COVID-19.7 See Exhibit 4. On Sunday, April 26, 2020, the CDC and OSHA jointly issued
`
`Interim Guidance specific to the meat processing industry. See Exhibit 5.
`
`
`6 Plaintiffs’ Opposition, which purports to provide a timeline of OSHA action, ignores these emergency procedures.
`Opposition at 3.
`7 These include the following:
`29 CFR § 1904, Recording and Reporting Occupational Injuries and Illness;
`
`
`
`-6-
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`E.
`
`Plaintiffs’ Criticisms of OSHA
`
`In Plaintiffs’ Opposition to Letter Request for Extension of Time to Respond to Plaintiffs’
`
`Emergency Motion for a Preliminary Injunction (Doc. 19), Plaintiffs make several unfounded
`
`criticisms of OSHA and its response to COVID-19, to which Smithfield briefly responds below.
`
` Plaintiffs contend that “OSHA is hardly performing any onsite inspections,”
`
`Opposition at 2-3. However, Plaintiffs do not provide any support for this statement.
`
`Whether true or not, OSHA continues to pursue its mission and is conducting
`
`aggressive investigations using electronic means and demands for information, as is
`
`evidenced by its request to Smithfield regarding the Milan Plant.
`
` Plaintiffs suggest that OSHA is not investigating meat processing plants. Opposition
`
`at 3. This is a red herring. Whatever OSHA’s general policy is with respect to meat
`
`processing plants, it has inserted itself into safety issues at Smithfield’s Milan Plant.
`
`Moreover, just yesterday, OSHA and CDC issued joint guidance regarding COVID-
`
`19 safety issues directed at meat processing facilities.
`
` Plaintiffs contend that OSHA may only issue a citation to “abate[]” a violation after
`
`an inspection. 29 U.S.C. § 658(a). Opposition at 3. This is patently incorrect.
`
`OSHA may seek an immediate injunction under its emergency powers, as discussed
`
`above.
`
`
`29 CFR § 1910.132, General Requirements [Personal Protective Equipment]
`29 CFR § 1910.133, Eye and Face Protection
`29 CFR § 1910.134, Respiratory Protection
`29 CFR § 1910.141, Sanitation
`29 CFR § 1910.145, Specifications for Accident Prevention Signs and Tags
`29 CFR § 1910.1020, Access to Employee Exposure and Medical Records
`29 CFR § 1910.1030, Bloodborne Pathogens
`
`
`-7-
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`

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`
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`F.
`
`
`
` Plaintiffs contend that “even if their claims were not emergent, the wait for OSHA to
`
`act would likely be years.” Opposition at 3. Again, this is incorrect. Plaintiffs cite
`
`to statutes of limitations (6 months for OSHA to issue a citation) and employer
`
`response times (15 days), which are outer limits. Moreover, Plaintiffs assume an
`
`appeals process—a process that is available in the courts is well.
`
`State and Local Public Health Authority Over COVID-19
`
`
`
`While OSHA is responsible for workplace safety, Missouri state and local government has
`
`a corresponding responsibility for public safety. Missouri, like other states around the country,
`
`has implemented statewide policies to address the threat of COVID-19 exposure and transmission.
`
`
`
`Governor Parson, through the Missouri Department of Health and Senior Services
`
`(“MDHSS”), issued a “stay-at-home” order on April 3, 2020.8 The order includes general COVID-
`
`19 safety requirements and guidelines pertaining to individuals, as well as the operations of both
`
`essential and non-essential businesses.9 The Governor assigned responsibility for implementing
`
`and enforcing specific COVID-19 safety measures to “all local and state health authorities.” Mo.
`
`Rev. Stat. Ann. § 192.290.10
`
`
`
`MDHSS continues to fulfill this responsibility, as it has issued dozens of guidance
`
`statements11 containing specific COVID-19 safety measures, including several statements
`
`pertaining specifically to workplace safety.12 Additionally, MDHSS and local health agencies
`
`
`8 Mo. Exec. Order (April 3, 2020), https://governor.mo.gov/priorities/stay-home-order, see Exhibit 1.
`9 See id., Items 1-3.
`10 See id., p. 2.
`11 See MDHSS, HEALTH ALERTS, ADVISORIES & UPDATES,
`https://health.mo.gov/emergencies/ert/alertsadvisories/index.php (last accessed April 26, 2020)
`12 See, e.g., MDHSS, INTERIM GUIDANCE FOR IMPLEMENTING SAFETY PRACTICES FOR CRITICAL INFRASTRUCTURE
`WORKERS, https://health.mo.gov/emergencies/ert/ alertsadvisories/pdf/update 4920.pdf (last accessed April 26,
`2020); MDHSS, COVID-19 AND RETURN TO WORK MESSAGING - EXPANDED GUIDANCE FOR CRITICAL
`INFRASTRUCTURE PERSONNEL INVOLVED IN THE PROVISION OF DIRECT CLIENT CARE,
`https://health.mo.gov/emergencies/ert/alertsadvisories/pdf/guidance41720.pdf (last accessed April 26, 2020).
`
`
`-8-
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`have worked closely with a number of private businesses to monitor and develop their COVID-19
`
`safety measures.13 MDHSS has also worked closely with federal agencies in responding to the
`
`virus,14 and the Center for Disease Control has made itself available to assist state and local
`
`agencies in their response to health emergencies such as COVID-19.15
`
`Missouri’s COVID-19 response led by state and local agencies is consistent with—and in
`
`fact required by—Missouri law. All “public health functions and programs” in Missouri must be
`
`supervised and managed by the MDHSS. Mo. Rev. Stat. Ann. § 192.005. Further, Missouri
`
`regulations specifically provide that the Director of MDHSS must use “the legal means necessary
`
`to control … any disease or condition listed in 19 Mo. CSR 20-20.020 which is a threat to the
`
`public health.” 19 Mo. C.S.R. 20-20.040. Listed diseases and conditions include “[o]utbreaks
`
`(including nosocomial) or epidemics of any illness, disease, or condition that may be of public
`
`health concern.” 19 Mo. C.S.R. 20-20.020. That provision undoubtedly covers COVID-19.
`
`Under MDHSS regulations, upon report of an infectious disease under Section 20-20.020,
`
`both the Director and “local health authorit[ies]” have a duty to take appropriate measures to lessen
`
`the effect of the disease:
`
`
`13 See, e.g., JEFFERSON COUNTY HEALTH DEPARTMENT BLOG, “Jefferson County Health Department Reports
`COVID-19 Outbreak At Festus Manor Care Center,” (April 17, 2020)
`http://www.jeffcohealth.org/blog/2020/4/17/jefferson-county-health-department-reports-covid-19-outbreak-at-
`festus-manor-care-center (noting that a nursing facility is “working closely with Jefferson County Health
`Department to contain the virus”); “Coronavirus Latest,” KMOV4 News, (April 8, 2020)
`https://www.kmov.com/coronavirus-covid-latest-info-in-st-louis/article_f35c5f16-7038-11ea-9c06-
`f30dcb4bc9eb.html (noting that a hospital “is continuous contact with St. Charles Health Department so that they
`can notify individuals who may have been exposed during this time and determine a proper course of action”).
`14 See, e.g., Office of the Governor Press Release, “Governor Parson Gives Updates On Missouri National Guard,
`Department of Economic Development Efforts to Assist with COVID-19 Response,” https://governor.mo.gov/press-
`releases/archive/governor-parson-gives-updates-missouri-national-guard-department-economic (Mar. 31, 2020);
`Office of the Governor Press Release; MDHSS Press Release, “DHSS Director Williams meets at White House to
`discuss federal, state and local health officials’ strategic alignment on COVID-19,”
`https://health.mo.gov/news/newsitem/uuid/ffc9eb47-c189-4cc7-8a24-6130a710dbb3/dhss-director-williams-meets-
`at-white-house-to-discuss-federal-state-and-local-health-officials-strategic-alignment-on-covid-19 (Feb. 27, 2020).
`15 U.S. CENTERS FOR DISEASE CONTROL AND PREVENTION, “CDC Support to Health Officials,”
`https://www.cdc.gov/publichealthgateway/healthdepartmentresources/health-official-support.html (last accessed
`April 26, 2020) (noting states’ 10th Amendment police powers to respond to health emergencies, and offering
`various means of assistance aimed to helping states to implement those powers).
`
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`Case 5:20-cv-06063-DGK Document 29 Filed 04/27/20 Page 13 of 25
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`(A) Inspect any premises that they have reasonable grounds to believe are in a
`condition conducive to the spread of the disease; . . .
`
`(E) Establish and maintain quarantine, isolation or other measures as required;…
`
`(G) Establish appropriate control measures which may include isolation,
`quarantine, disinfection, immunization, closure of establishment, notification
`to the public of the risk or potential risk of the disease and such information
`required to avoid or appropriately respond to the exposure, the creation and
`enforcement of adequate orders to prevent the spread of the disease and other
`measures considered by the department and/or local health authority as
`appropriate disease control measures based upon the disease, the patient’s
`circumstances, the type of facility available, and any other available
`information related to the patient and the disease or infection.
`
`19 Mo. C.S.R. 20-20.040.
`
`III. ARGUMENT
`
`A.
`
`The Court Should Dismiss or Stay This Action In Favor of OSHA’s Primary
`Jurisdiction Over Workplace Safety.
`
`1.
`
`Legal Standard for Invoking Primary Jurisdiction Doctrine
`
`The doctrine of primary jurisdiction applies to claims “properly cognizable in court that
`
`contain some issue within the special competence of an administrative agency.” Reiter v. Cooper,
`
`507 U.S. 258, 268 (1993). It is a “common-law doctrine that is utilized to coordinate judicial and
`
`administrative decision making.” Access Telecommunications v. Southwestern Bell Tel. Co., 137
`
`F.3d 605, 608 (8th Cir. 1998) (citations omitted). The doctrine “is concerned with promoting
`
`proper relationships between the courts and administrative agencies charged with particular
`
`regulatory duties.” United States v. Western Pac. R.R. Co, 352 U.S. 59, 63 (1956).
`
`There is no set formula for when the doctrine applies, but “[i]n every case the question is
`
`whether the reasons for the existence of the doctrine are present and whether the purposes it serves
`
`will be aided by its application in the particular litigation.” Chlorine Inst., Inc. v. Soo Line R.R.,
`
`792 F.3d 903, 909 (8th Cir. 2015) (quoting United States v. Western Pac. R.R. Co., 352 U.S. 59,
`
`64 (1956)); Asarco, LLC v. NL Indus., No. 11-00123-CV-SW-BP, 2013 U.S. Dist. LEXIS 43013,
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`*9 (W.D. Mo. Mar. 18, 2013). The two primary reasons for applying the primary jurisdiction
`
`doctrine are: (1) “to obtain the benefit of the agency’s expertise and experience”; and (2) “to
`
`promote uniformity and consistency within the particular field of regulation.” Sprint Spectrum
`
`L.P. v. AT&T Corp., 168 F.Supp.2d 1095, 1097-98 (W.D. Mo. 2001) (citations omitted).
`
`The doctrine of primary jurisdiction may be applied even where claims arise under state
`
`law. For example, in Sprint Sprectrum L.P., the plaintiff asserted state law claims for implied
`
`contract and quantum meruit. 168 F.Supp.2d at 1099. Nevertheless, the court stayed the case in
`
`favor of an FCC proceeding because the outcome turned on the “reasonableness” of Sprint’s rates,
`
`“a fact that must be proven and one which the FCC is in a better position than the Court to
`
`evaluate.” Id. at 1099-1100; see also Nader v. Allegheny Airlines, 426 U.S. 290, 296-97 (1976)
`
`(observing that the D.C. Court of Appeals determined that the viability of plaintiff’s common-law
`
`fraudulent misrepresentation claim would be affected by agency determination).16
`
`Moreover, as the cases cited herein demonst