Case 3:20-cv-01260-MEM Document 56 Filed 02/01/21 Page 1 of 17
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`UNITED STATES DISTRICT COURT
`MIDDLE DISTRICT OF PENNSYLVANIA
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`JANE DOES I, II, III and FRIENDS
`OF FARMWORKERS, INC. D/B/A
`JUSTICE AT WORK
`IN
`ITS
`CAPACITY
`AS
`EMPLOYEE
`REPRESENTATIVE,
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`
`Plaintiffs,
`
`EUGENE SCALIA, IN HIS OFFICIAL
`CAPACITY AS UNITED STATES
`SECRETARY OF LABOR;
`OCCUPATIONAL SAFETY AND
`HEALTH ADMINISTRATION,
`UNITED STATES notice
`DEPARTMENT OF LABOR,
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`Defendants.
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`I
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`Case No.: 3:20-cv-01260
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`PLAINTIFFS’ RESPONSE TO DEFENDANTS’ “SUGGESTION OF
`MOOTNESS”
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`UNITED STATES DISTRICT COURT
`MIDDLE DISTRICT OF PENNSYLVANIA
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`JANE DOES I, II, III and FRIENDS
`OF FARMWORKERS, INC. D/B/A
`JUSTICE AT WORK
`IN
`ITS
`CAPACITY
`AS
`EMPLOYEE
`REPRESENTATIVE,
`
`
`Plaintiffs,
`
`EUGENE SCALIA, IN HIS OFFICIAL
`CAPACITY AS UNITED STATES
`SECRETARY OF LABOR;
`OCCUPATIONAL SAFETY AND
`HEALTH ADMINISTRATION,
`UNITED STATES notice
`DEPARTMENT OF LABOR,
`
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`Defendants.
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`I
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`Case No.: 3:20-cv-01260
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`PLAINTIFFS’ RESPONSE TO DEFENDANTS’ “SUGGESTION OF
`MOOTNESS”
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`Case 3:20-cv-01260-MEM Document 56 Filed 02/01/21 Page 2 of 17
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`INTRODUCTION
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`Plaintiffs brought this action under 29 U.S.C. § 662(d), a provision of the
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`Occupational Safety and Health Act designed to allow judicial remedies against the
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`Occupational Safety and Health Administration (OSHA) when it declines to
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`protect workers from imminent dangers. Plaintiffs have repeatedly informed
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`OSHA that their workplace contains, and continues to subject them to, various
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`imminent dangers. These dangers include requiring workers along production lines
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`to work elbow to elbow without opportunities for physical distancing, a practice
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`that has resulted in deadly outbreaks at meat-processing plants around the country.
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`See, e.g., ECF Doc. 45 at 5; ECF Doc. 52.
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`OSHA has not denied the essential facts and has not denied the dangers that
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`Maid-Rite’s practices create for Maid-Rite’s workers. In fact, OSHA’s inspection
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`of the Maid-Rite facility—even though undermined by OSHA arbitrarily and
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`capriciously giving Maid-Rite advance notice, ECF Doc. 43 at 22—revealed that
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`“[e]mployees were not social distancing in production areas, putting workers at
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`risk for exposure to SARS-CoV-2.” ECF Doc. 51-2. Yet, OSHA continually
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`refused to take any action to protect workers at the Maid-Rite Plant, only going as
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`far as to “bring Maid-Rite’s attention” to strategies used to protect workers at other
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`facilities. See, e.g., id.
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`A lot has changed over the past week, however. While COVID-19 continues
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`1
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`to rage across the country and meat-processing workers remain particularly
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`vulnerable, on Friday, January 29, OSHA issued updated COVID-19 guidance for
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`employers, U.S. Dep’t of Labor, OSHA, Protecting Workers: Guidance on
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`Mitigating and Preventing the Spread of COVID-19 in the Workplace (Updated
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`Jan. 29, 2021), https://bit.ly/3j4oeYg (“Updated Guidance”), due to instructions
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`from President Biden.1 The Updated Guidance bears directly on some of the core
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`issues in this case. Among other things, the Updated Guidance specifies that
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`employers should increase physical space “between workers at the worksite to at
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`least 6 feet” and that this is necessary even if it will require “modifying the
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`workspace or slowing production lines.” Id.
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`As OSHA’s Updated Guidance reinforces, Maid-Rite’s refusal to allow
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`spacing along production lines constitutes an ongoing imminent danger to workers
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`at the facility. There is also every reason to believe that if OSHA were to conduct a
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`new inspection of the Maid-Rite facility in light of the Updated Guidance, it would
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`come to a different conclusion than it did in early December 2020. But currently
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`before this Court is a January 12, 2020 filing wherein Defendants argued to this
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`1 Exec. Order on Protecting Worker Health & Safety (Jan. 21, 2021),
`https://www.whitehouse.gov/briefing-room/presidential-
`actions/2021/01/21/executive-order-protecting-worker-health-and-safety/
`(providing, among other things, that OSHA shall “issue, within 2 weeks of the date
`of this order and in conjunction or consultation with the heads of any other
`appropriate executive departments and agencies (agencies), revised guidance to
`employers on workplace safety during the COVID-19 pandemic”).
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`2
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`Court that they had unilaterally stripped this Court of jurisdiction by choosing to
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`formalize their decision not to act days before the change in administration. ECF
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`Doc. 53 (Defs.’ Br.).
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`For the reasons explained in Part I of this response, even without the
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`Updated Guidance, this case is not moot. OSHA’s argument that the agency can
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`act unilaterally and moot a case at its discretion is contrary to the language and
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`purposes of § 662(d). Notwithstanding OSHA’s arbitrary and capricious failure to
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`intervene, Maid-Rite’s practices continue to constitute an imminent danger to
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`workers. Section 662(d) was designed as a check on OSHA’s failure to act in
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`precisely these circumstances. It formalizing that failure does not change
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`§ 662(d)’s reach. Moreover, even if OSHA’s decision not to issue a citation
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`deprives the Court of authority to order OSHA to seek an imminent danger order
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`under § 662(b), § 662(d) allows the Court to order “further relief as may be
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`appropriate,” including a new inspection. And, under the “capable of repetition yet
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`evading review” exception to mootness, this Court should adjudicate this action to
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`prevent OSHA’s continued failure to act in the future.
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`In Part II, this response describes the remedies available to the Court in the
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`wake of the conflicting events of the past two months, including (1) OSHA’s
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`decision not to issue a citation to Maid-Rite in December 2020, and (2) OSHA’s
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`issuance of Updated Guidance in January 2021 that directly bears on the conditions
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`3
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`at the Maid-Rite plant. Considering the imminent danger that Maid-Rite continues
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`to present to workers and OSHA’s persistent arbitrary and capricious conduct
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`amplified by its own revised view of the science, the Court should order that
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`OSHA seek an imminent danger order under § 662(b) or reinspect Maid-Rite under
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`the Updated Guidance. Before deciding what steps are appropriate to redress
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`OSHA’s failures, the Court could also stay resolution of this matter and order the
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`parties to mediate their dispute and to assess whether OSHA’s Updated Guidance
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`provides a basis for an out-of-court resolution.2
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`ARGUMENT
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`(I) This Action is Not Moot.
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`(A) The Court Still May Order OSHA to Resolve the Imminent
`Danger That Continues to Confront Maid-Rites Workers.
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`Defendants begin their argument with the strawman assertion that the Court
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`does not have authority to review Defendants’ decision not to issue a citation to
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`Maid-Rite. Defs.’ Br. at 4. Of course, Defendants’ decision to issue or not issue a
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`citation to Maid-Rite is not the subject of this litigation. This case is not about how
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`much money OSHA has required Maid-Rite to pay (or not pay) for its violations.
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`This case is about OSHA’s ongoing decision not to protect workers at the Maid-
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`2 Plaintiffs’ counsel conferred with Defendants’ counsel today about the possibility
`of a stay, and Defendants’ counsel expressed opposition. Plaintiffs’ counsel
`remains optimistic, however, that because of the recent Updated Guidance, an out-
`of-court resolution is achievable.
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`4
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`Rite facility from the ever-present imminent dangers posed by Maid-Rite’s
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`working conditions.
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`Defendants argue, however, that by refusing to issue a citation, they have
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`effectively foreclosed their own ability to seek relief for workers from imminent
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`dangers under § 662(a) and (b) and therefore also stripped this Court of its
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`authority to issue relief under § 662(d), even if the Court were to conclude that
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`OSHA had arbitrarily and capriciously failed to address an imminent danger. But §
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`662(d) exists for situations in which OSHA “arbitrarily or capriciously fails to seek
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`relief” for workers from imminent dangers under the processes spelled out in §
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`662(a) and (b). In other words, OSHA’s failure to act is the reason for litigation
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`under § 662(d), not a reason to moot it. Reading the statute otherwise would permit
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`OSHA to negate any § 662(d) action simply by expediting its enforcement
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`proceedings. 29 C.F.R. § 1903.14(a) (providing that citation decisions can be made
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`at any point before six months after the “occurrence of any alleged violation”). It is
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`contrary to the purposes of § 662(d) to allow OSHA’s extended pattern of arbitrary
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`and capricious conduct, including a decision not to issue a citation, to tie the
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`court’s hands in ordering relief where an imminent danger exists.
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`The text of the statute is consistent with allowing Plaintiffs’ § 662(d) action
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`to proceed. While § 662(b) allows OSHA to seek relief in court “pending the
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`outcome of an enforcement proceeding,” the procedure outlined in § 662(d) is not
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`tied to or limited by a pending enforcement proceeding. Section 662(d) allows
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`workers and their representatives to seek relief in court when OSHA “arbitrarily or
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`capriciously fails to seek relief” to protect them from ongoing imminent dangers.
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`Nothing in that provision prevents workers from invoking the statute because
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`OSHA has finalized its decision not to seek relief. Indeed, as discussed more
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`below, § 662(d) allows the Court to order “further relief as may be appropriate”
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`indicating that the Court could order OSHA to initiate or reinitiate a proceeding
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`and to seek relief under § 662(b). See, e.g., 29 C.F.R. § 1903.3(a) (setting forth
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`OSHA’s wide authority to initiate inspections).
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`Defendants argue that Sears, Roebuck & Co. v. Carpet, Linoleum, Soft Tile
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`& Resilient Floor Covering Layers, Local Union No. 419, AFL-CIO, 397 U.S. 655
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`(1970), suggests this action has been mooted by OSHA’s decision not to cite Maid-
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`Rite. In fact, the contrast between the language of 29 U.S.C. § 662 and 29 U.S.C.
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`§ 160(j), the provision of the National Labor Relations Act at issue in Sears,
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`supports the Court’s jurisdiction to resolve this case.
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`Under the plain language of § 160(j) any injunctive relief issued expires
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`upon the resolution of the Board’s enforcement proceeding, 29 U.S.C. § 160(j)
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`(providing for “temporary relief or restraining order”). In contrast, were the Court
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`to grant relief under § 662(d), nothing in the text suggests that relief expires upon
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`OSHA’s resolution of an enforcement proceeding, 29 U.S.C. § 662(b) (“injunctive
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`relief or temporary restraining order” (emphasis added)). Had Congress wanted to
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`limit courts’ ability to obtain or issue orders against imminent dangers in
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`workplaces to the period before OSHA finalizes an investigation, the language in §
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`662 would have mirrored § 160. Because Congress acted otherwise, the Court
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`should conclude § 662 is broader and allows for relief regardless of OSHA’s
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`assertion that its work is complete.
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`More importantly, however, the reasoning in Sears turned on the Supreme
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`Court’s observation
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`that § 160(j) was designed “to supplement
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`the
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`pre-existing . . . power of the [National Labor Relations] Board” by providing the
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`Board with a tool to obtain injunctive relief in court pending the Board’s final
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`adjudication of a matter. Id. The scheme set out in § 662 is fundamentally different
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`because the injunctive relief available to OSHA is not subject to OSHA’s
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`unfettered discretion. Rather, § 662(d) provides that a Court may intervene to order
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`OSHA to protect workers from imminent dangers. Thus, while it makes sense to
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`allow the National Labor Relations Board to moot consideration of a § 160(j)
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`proceeding—a proceeding that the Board is free to initiate or not initiate on
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`whatever grounds it wishes—it does not make sense to allow OSHA to moot a
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`§ 662(d) proceeding initiated by workers to challenge the agency’s decision not to
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`pursue injunctive remedies.
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`(B) Even if Relief Under 29 U.S.C. § 662(a) and (b) Is No Longer
`Available, the Court May Order Other Remedies to Protect
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`Workers.
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`Even if the Court were to determine OSHA’s decision not to issue a citation
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`means that the Court cannot order OSHA to seek an imminent danger order
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`because it reads § 662(a)-(b) as requiring a pending proceeding, this does not mean
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`that this action is moot. Section 662(d) allows the Court to order OSHA to seek an
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`imminent danger order and to provide “further relief as may be appropriate.”
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`Precisely because of the absurd results that would follow from allowing OSHA to
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`unilaterally moot proceedings challenging its own arbitrary and capricious
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`conduct, the Court should read § 662(d)’s “further relief as may be appropriate”
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`language broadly.
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`In this case, regardless of whether the Court can protect workers from
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`imminent dangers by ordering OSHA to seek a § 662(b) order, there are other
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`remedies that may address OSHA’s arbitrary and capricious conduct. The Court
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`could, for example, order that OSHA conduct a new inspection, this time without
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`advance notice, to review whether an imminent danger exists under OSHA’s
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`Updated Guidance. 29 C.F.R. § 1903.3(a) (providing that OSHA can initiate an
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`inspection without a new formal complaint).
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`In Part II below, Petitioners further describe remedies available to the Court
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`at this juncture, but the language of § 662(d) allowing for “further relief as may be
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`appropriate,” leaves the Court with substantial discretion to order remedies to
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`protect workers and address OSHA’s conduct. The availability of those remedies
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`reinforces that this case is not moot.
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`(C) These Circumstances Are Capable of Repetition Yet Avoiding
`Review
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`Even if this case were otherwise mooted by OSHA’s unilateral decision to
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`close its investigation, OSHA’s conduct would bring the case within the
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`well-established exception to mootness for disputes that are capable of repetition
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`yet evading review. The exception applies where “(1) the challenged action is in its
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`duration too short to be fully litigated prior to cessation or expiration, and (2) there
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`is a reasonable expectation that the same complaining party will be subject to the
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`same action again.” Federal Election Commission v. Wisconsin Right To Life, Inc.
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`551 U.S. 449, 462 (2007).
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`That doctrine was first announced in Southern Pacific Terminal Company v.
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`Interstate Commerce Commission, 219 U.S. 498, 514 (1911), the facts of which are
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`strikingly similar to this case. There, a federal agency issued a time limited order.
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`While a challenge to that order was pending, the agency claimed the term of the
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`order “ha[d] expired, and that, the case having thereby come moot, the appeal
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`should be dismissed.” S. Pac. Id. at 514. The Supreme Court determined that
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`jurisdiction would not be stripped “by shortterms orders, capable of repetition, yet
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`evading review.” Id. The parties must have a mechanism to “have their rights
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`determined.” Id.
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`Of a more recent vintage, in Wisconsin Right To Life, the Court considered
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`an as-applied challenge to a rule prohibiting certain electoral advertisements. 551
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`U.S. at 461. The FEC argued that because the “election has passed” and the
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`would-be advertiser could not demonstrate the same issues would be present in
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`future ads, the case was moot. Id. at 462. The Court disagreed, stating the case fit
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`“comfortably within the established exception to mootness for disputes capable of
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`repetition, yet evading review.” Id. It would be unreasonable to expect litigation to
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`be complete within a “2-year window between elections.” Id. This was self-evident
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`by the fact that four years had “come and gone” during the pendency of Wisconsin
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`Right to Life, confirming it would be improper to hold the case moot. Id.
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`Moreover, because the would-be advertiser “credibly claim[ed]” engaging in
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`political advertisements is part of its regular activities, it risked being subject to the
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`same rule in the future. Id. at 463.
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`This action also meets this test. First, “the challenged action is in its duration
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`too short to be fully litigated prior to cessation or expiration.” Id. at 462. Under
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`OSHA’s logic, workers have at most six months to pursue a 29 U.S.C. § 662(d)
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`claim, as that is the amount of time the agency has to reach an enforcement
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`decision. See Defs.’ Br. at 13. The notion that Plaintiffs could have brought their
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`suit, received a decision, proceeded through appeal, and closed out the time for
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`Supreme Court review within no more than six months is absurd. Belitskus v.
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`Pizzingrilli, 343 F.3d 632, 649 (3d Cir. 2003) (election campaign too short a period
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`to allow for litigation). The out-of-circuit case OSHA cites concerned litigation “of
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`national importance” regarding the “temporary appointment to the United States
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`Senate,” for which the court recognized there are special procedures to expedite.
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`Hamamoto v. Ige, 881 F.3d 719, 723 (9th Cir. 2018). Given the unique facts of that
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`case, the Court held that although “years” is normally insufficient to litigate a
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`matter, “two years and five months” would be sufficient to resolve whether a
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`Senator was legally serving. Id. Leaving aside the differences in the cases, that is
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`nearly five times as long as OSHA claims Plaintiffs have to litigate any § 662(d)
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`action.
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`Second, “there is a reasonable expectation that the same complaining party
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`will be subject to the same action again.” Wisconsin Right To Life, 551 U.S. at 462.
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`Plaintiffs have credibly claimed the conditions at Maid-Rite remain unchanged,
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`see, e.g., ECF Doc. 52-3, meaning Maid-Rite workers and OSHA are likely to have
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`a future dispute regarding whether OSHA should protect Maid-Rite workers from
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`an imminent danger under § 662. OSHA’s argument that because each OSHA
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`complaint is considered “at the time” it is made and factual nuances may
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`distinguish any future complaint from the current complaint, Defs.’ Br. at 12, does
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`not change this analysis. The Court in Wisconsin Right to Life explained that it was
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`irrelevant that particular future advertisements might differ from the ones at issue
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`in the litigation. There need not be a “repetition of every legally relevant
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`characteristic,” so long as the same parties might have a new dispute largely
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`similar to the one currently before the court. Id. at 463 (cleaned up).
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`Indeed, under OSHA’s logic no plaintiff could ever obtain a final judgment
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`on a § 662(d) claim, which is reason alone to reject OSHA’s argument. According
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`to OSHA, a plaintiff would have to litigate the entire action before OSHA reached
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`an enforcement decision, as once that occurs OSHA can argue that the original
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`§ 662(d) case is moot. The Third Circuit has explained that where “a finding that [a
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`particular] case is moot would essentially doom all challenges” the courts should
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`assume an equivalent dispute between the parties will recur. Belitskus, 343 F.3d at
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`649 n.11 (citing Arkansas AFL–CIO v. Federal Communications Comm’n, 11 F.3d
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`1430, 1436 (8th Cir.1993)).
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`(II) The Court Should Order Relief That Protects Workers and Allows
`OSHA to Apply Its Updated Guidance.
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`For the reasons explained above, the Court has discretion to order OSHA to
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`seek an imminent danger order to protect workers at the Maid-Rite plant from
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`ongoing imminent dangers. As Plaintiffs have articulated throughout this action,
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`Defendants’ conduct has been arbitrary and capricious, and the conditions at Maid-
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`Rite constitute an imminent danger. That entitles Petitioners to their requested
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`relief.
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`There are, however, alternative remedies available, which would be
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`consistent with the language of § 662(d), permitting “further relief as may be
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`appropriate,” and which would also take account of the dramatic recent shift in
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`OSHA’s guidance over the past week.
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`First, the Court could order that OSHA re-inspect Maid-Rite, this time
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`without providing advance notice, consistent with OSHA’s Updated Guidance.
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`OSHA says that “compelling another inspection at this juncture would be futile
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`and do nothing to change the determination.” Defs.’ Br. at 11. But while conditions
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`at the Plant have not changed, OSHA’s own guidance has. The agency has now
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`clarified that employers like meat-processing plants must space workers along
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`production lines, even when doing so requires changes to production practices.
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`Other measures, like masks or even placing plastic barriers between workers are
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`not, on their own, sufficient in workplaces where workers can be placed more than
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`six feet apart.
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`Second, before ordering a re-inspection, the Court could stay this litigation
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`and order the parties to mediate regarding this dispute and any impact that the
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`Updated Guidance may have on it. The Updated Guidance marks a clear shift in
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`OSHA’s appreciation of the dangers of physical distancing along production lines
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`in meat-processing plants. That shift presents a promising opportunity for out-of-
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`court resolution.
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`CONCLUSION
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`For all of the reasons stated above, this case is not moot. The Court should
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`order that OSHA pursue an imminent danger order under § 662(b). If the Court
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`declines to issue such an order, the Court should alternatively order a re-inspection
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`or stay the litigation and order mediation in light of OSHA’s Updated Guidance.
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`s/ David H. Seligman
`David H. Seligman, CO Bar No. 49394
`Juno Turner, NY Bar No. 4491890
`Brianne Power, CO Bar No. 53730
`TOWARDS JUSTICE
`1410 High St., Suite 300
`Denver, CO 80218
`Telephone.: 720-239-2606
`david@towardsjustice.org
`juno@towardsjustice.org
`brianne@towardsjustice.org
`
`David Muraskin, D.C. Bar No. 1012451
`Karla Gilbride, D.C. Bar No. 1005586
`PUBLIC JUSTICE, P.C.
`1620 L Street NW, Suite 630
`Washington, DC 20036
`Telephone: (202) 797-8600
`Fax: (202) 232-7203
`kgilbride@publicjustice.net
`dmuraskin@publicjustice.net
`
`Adrienne H. Spiegel, CA Bar No. 330482
`PUBLIC JUSTICE, P.C.
`475 14th Street, Suite 610
`Oakland, CA 94612
`Telephone: (510) 622-8207
`aspiegel@publicjustice.net
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`Attorneys for Friends of Farmworkers, Inc.,
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`Case 3:20-cv-01260-MEM Document 56 Filed 02/01/21 Page 16 of 17
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`d/b/a Justice at Work
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`Lerae Kroon, PA Bar No. 325464
`Nina Menniti, PA Bar No. 326828
`Samuel Datlof, PA Bar No. 324716
`FRIENDS OF FARMWORKERS, INC.,
`D/B/A JUSTICE AT WORK
`990 Spring Garden St, Suite 300
`Philadelphia, PA 19123
`Telephone: (215) 733-0878
`Fax: (215) 733-0878
`lkroon@justiceatworklegalaid.org
`nmenniti@justiceatworklegalaid.org
`sdatlof@justiceatworklegalaid.org
`Attorneys for Jane Does I, II, and III
`
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`Matthew H. Morgan, MN Bar No. 304657
`Anna P. Prakash, MN Bar No. 0351362
`NICHOLS KASTER, PLLP
`4600 IDS Center
`80 S. Eighth Street
`Minneapolis, Minnesota 55402
`Telephone: (612) 256-3200
`Fax: (612) 338-4878
`morgan@nka.com
`aprakash@nka.com
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`Attorneys for Friends of Farmworkers, Inc.,
`d/b/a Justice at Work
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`15
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`Case 3:20-cv-01260-MEM Document 56 Filed 02/01/21 Page 17 of 17
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`CERTIFICATE OF SERVICE
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`I hereby certify that I caused this brief to be filed be filed in ECF, which
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`caused a copy to be served on counsel for all parties.
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`s/ David H. Seligman
`David H. Seligman, CO Bar No. 49394
`TOWARDS JUSTICE
`1410 High St., Suite 300
`Denver, CO 80218
`Telephone: 720-239-2606
`david@towardsjustice.org
`juno@towardsjustice.org
`brianne@towardsjustice.org
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`16
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