Case 3:20-cv-01260-MEM Document 59 Filed 03/30/21 Page 1 of 34
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`UNITED STATES DISTRICT COURT
`MIDDLE DISTRICT OF PENNSYLVANIA
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`JANE DOES I, II, III, et al.,
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` Plaintiffs
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` v.
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`EUGENE SCALIA, United States
`Secretary of Labor, et al.,
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` Defendants
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`: CIVIL ACTION NO. 3:20-1260
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`(JUDGE MANNION)
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`MEMORANDUM
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`Presently before the court is a complaint filed by plaintiffs Jane Does I,
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`II, and III and Friends of Farmworkers, Inc. d/b/a Justice at Work (collectively,
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`“Plaintiffs”), which seeks a writ of mandamus pursuant to Section 13(d) of
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`the Occupational Safety and Health Act of 1970 (the “Act”), 29 U.S.C.
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`§662(d), compelling defendants the Secretary of Labor Eugene Scalia (the
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`“Secretary”) and the Occupational Safety and Health Administration
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`(“OSHA”), (collectively, “Defendants”), to seek a court order that directs
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`Plaintiffs’ employer, Maid-Rite Specialty Foods (the “Plant”), to take steps to
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`abate imminent dangers to its employees related to the transmission of
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`COVID-19.1 (Doc. 1). Defendants have filed a motion to dismiss, (Doc. 23),
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`1 The court notes that the Secretary has delegated most of his
`responsibilities under the Act to the Assistant Secretary of OSHA. See
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`Case 3:20-cv-01260-MEM Document 59 Filed 03/30/21 Page 2 of 34
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`as well as a motion to strike certain exhibits attached to Plaintiffs’ post-
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`hearing brief, (Doc. 44).
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`In this case of first impression, the court is called upon to determine
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`whether a district court has jurisdiction over a complaint in mandamus
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`pursuant to Section 13(d) of the Act where the Secretary has not received a
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`recommendation to take legal action from an OSHA inspector and,
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`accordingly, has not rejected a recommendation to initiate imminent danger
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`proceedings. For the reasons set forth below, the court finds that it does not
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`and, accordingly, Defendants’ motion to dismiss will be GRANTED and the
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`Complaint will be DISMISSED. Additionally, the court will GRANT the motion
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`to strike.
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`I.
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`BACKGROUND
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`As by now many courts have noted, coronavirus disease 2019, or
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`COVID-19, which emerged in late 2019, is a respiratory illness that can
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`cause serious health problems, including death, and poses unique risks in
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`population-dense facilities. See United States v. Raia, 954 F.3d 594, 595-96
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`(3d Cir. 2020). Plaintiffs filed this suit on July 22, 2020, seeking, inter alia, to
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`Delegation of Authority and Assignment of Responsibility to Assistant
`Secretary for Occupational Safety and Health, 77 Fed.Reg. 3912-01 (Jan.
`25, 2012).
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`Case 3:20-cv-01260-MEM Document 59 Filed 03/30/21 Page 3 of 34
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`require OSHA to investigate conditions of the Plant which Plaintiffs believe,
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`if left unabated, pose an imminent danger to the Plant’s employees of
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`contracting COVID-19. (Doc. 1). They simultaneously filed a motion for leave
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`to proceed under pseudonym. (Doc. 3). By order dated July 23, 2020, the
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`court scheduled a hearing, and directed the parties to “be prepared to
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`present evidence” on whether the Secretary acted arbitrarily and capriciously
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`in failing to seek an injunction to restrain the Employer from practices, as
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`they relate to COVID-19, that could reasonably be expected to imminently
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`cause death or serious physical harm to employees. (Doc. 6, at 2).
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`On July 28, 2020, Defendants filed a response to the motion for leave
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`to proceed under pseudonym, indicating that they did not oppose the motion
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`but felt the court should require some evidence beyond Plaintiffs’
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`declarations in order to ensure they had standing. (Doc. 20). Defendants also
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`filed a motion to dismiss for failure to state a claim, (Doc. 23), and a brief in
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`support, (Doc. 24). On July 30, 2020, Defendants filed a motion to stay the
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`hearing scheduled for July 31 pending the disposition of their motion to
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`dismiss, (Doc. 30), which the court denied, (Doc. 33).
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`The court conducted a hearing on Friday, July 31, 2020, at which both
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`sides appeared and were permitted to present evidence and testimony.2 At
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`the beginning of the hearing the court granted Plaintiffs’ motion for leave to
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`proceed under pseudonym, (Doc. 3), in light of Defendants’ concurrence in
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`the motion, as well as Defendants’ failure to articulate any good faith basis
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`for challenging Plaintiffs’ standing. (Doc. 42, at 11).
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`At the conclusion of the hearing, the court set a briefing schedule.
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`Plaintiffs filed their post-hearing brief and brief in opposition to the motion to
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`dismiss. (Doc. 43). Defendants filed their post-hearing brief. (Doc. 46).
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`Plaintiffs then filed a reply brief. (Doc. 47).
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`Defendants separately filed a motion to strike three exhibits from
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`Plaintiffs’ brief, (Doc. 44), as well as a brief in support, (Doc. 45). Plaintiffs
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`filed a brief in opposition, (Doc. 48), and Defendants filed a reply brief, (Doc.
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`49).
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`On December 2, 2020, Defendants filed a letter informing the court that
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`OSHA had concluded its investigation of the Plant and would not be issuing
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`a citation—that is, it would not be instituting any enforcement proceedings
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`2 The court notes that, despite its order specifically directing lead
`counsel to appear in person at the hearing, (Doc. 17), and despite Plaintiffs’
`indication that “lead counsel for Plaintiffs will be physically present at the
`courthouse in Scranton,” (Doc. 27, at 2), Plaintiffs’ lead counsel appeared
`remotely.
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`against the Plant under the Act. (Doc. 51). Defendants attached two letters
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`dated December 2, 2020: one addressed to Plaintiffs, (Doc. 51-1), and one
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`addressed to the Plant, (Doc. 51-2). The letter to the Plaintiffs detailed the
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`findings of OSHA’s inspection with respect to each of the seven separate
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`items of concern in their complaint, and indicated that if Plaintiffs did not
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`agree with the inspection results, they could contact OSHA’s Acting Area
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`Director for clarification or OSHA’s Regional Administrator to request an
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`informal review. The letter to the Plant recounted the steps the Plant took in
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`response to the COVID-19 workplace concerns raised and additionally
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`suggested several other practices the Plant might consider implementing to
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`control exposure to COVID-19.
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`On December 8, 2020, Plaintiffs responded with a letter to the court,
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`indicating that they had requested an informal review. (Doc. 52). Plaintiffs
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`also attached a December 7, 2020 letter to OSHA, “object[ing] to the results
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`of [its] inspection.” (Doc. 52-1, at 1). In it, Plaintiffs reiterate many of their
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`earlier concerns about the conditions of the Plant, arguing that OSHA did not
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`sufficiently address whether various conditions and policies were sufficiently
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`remedied and that, in concluding certain conditions were acceptable, OSHA
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`chose to ignore the CDC’s, and its own, guidance—namely, that “COVID-19
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`pandemic control requires a multipronged application of evidence-based
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`Case 3:20-cv-01260-MEM Document 59 Filed 03/30/21 Page 6 of 34
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`strategies” that include, inter alia, “universal face mask use,” and “physical
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`distancing.” (Doc. 52-1, at 2) (quoting Honein et al., Summary of Guidance
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`for Public Health Strategies to Address High Levels of Community
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`Transmission of SARS-CoV-2 and Related Deaths, December 2020 (Dec. 4,
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`2020), available at https://www.cdc.gov/mmwr/volumes/69/wr/mm6949e2.
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`htm#:~:text=These%20strategies%20include%201)%20universal,)%20pro
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`mptly%20identifying%2C%20quarantining%2C%20and). Plaintiffs’
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`filings
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`also cite new declarations by two of the Plaintiffs, (Doc. 52-2; Doc. 52-3),
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`which generally state that “the dangerous conditions at [the Plant] remain
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`substantially unchanged.” (Doc. 52, at 2).
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`On January 12, 2021, Defendants filed a suggestion of mootness,
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`(Doc. 53), to which they attached a letter from OSHA’s Regional
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`Administrator, also dated January 12, 2021, (Doc. 53-1). In it, the Regional
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`Administrator addressed the Plaintiffs’ various areas of concern outlined in
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`their December 7, 2020 letter seeking review and, ultimately, affirmed the
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`determination of the Area Director that no citation to the Plant would issue.
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`The letter indicated that the Regional Administrator’s decision was “final and
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`not subject to review.” (Doc. 53-1, at 2).
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`After requesting and receiving an extension of time to reply, Plaintiffs
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`filed a response to the suggestion of mootness on February 1, 2021. (Doc.
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`56).
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`II.
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`DISCUSSION
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`a. Mootness
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`Initially, the court must address Defendants’ suggestion of mootness.
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`Defendants contend that, in light of OSHA’s completion of its investigation of
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`the Plant, as well as the finality of the Regional Administrator’s decision
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`affirming OSHA’s decision not to issue a citation, Plaintiffs have no avenue
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`for further administrative review and this action is moot. Defendants assert
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`that, OSHA’s decision not to initiate enforcement proceedings is a “classic
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`example of the prosecutorial discretion committed to the Secretary” and
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`“unreviewable” by courts. (Doc. 53, at 4) (quoting Reich v. OSHRC, 998 F.2d
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`134, 141 (3d Cir. 1993). As a result, Defendants aver that this action must
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`be dismissed as moot since Plaintiffs disagreement with OSHA’s decision
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`does not present a live controversy in that there is no relief the court can
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`provide.
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`In their response, Plaintiffs cite updated guidance issued by OSHA on
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`January 29, 2021, upon instruction from President Biden,3 arguing that it
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`“bears directly on some of the core issues in this case,” and that there is
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`“every reason to believe that if OSHA were to conduct a new inspection of
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`the [Plant] in light of the Updated Guidance, it would come to a different
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`conclusion than it did in early December 2020.” (Doc. 56, at 3). Plaintiffs
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`additionally argue that OSHA’s decision to “formalize” its “arbitrary and
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`capricious failure to intervene” in the Plant’s practices does not moot this
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`case, since Section 13(d) of the Act permits the court to order “further relief
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`as may be appropriate.” (Doc. 56, at 4). Plaintiffs suggest this relief should
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`include, inter alia, a “new inspection.” (Doc. 56, at 4). Alternatively, Plaintiffs
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`contend the court should adjudicate this action under the, capable of
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`repetition yet evading review, exception to the mootness doctrine “to prevent
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`OSHA’s continued failure to act in the future.” (Doc. 56, at 4).
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`Both parties miss the mark. While the court agrees with Plaintiffs that
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`this action is not moot, it is not for the reasons that Plaintiffs cite. The issue
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`presented to this court from the start remains whether this court has
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`jurisdiction over a complaint in mandamus pursuant to Section 13(d) of the
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`3 Exec. Order on Protecting Worker Health and Safety (Jan. 21, 2020),
`https://www.whitehouse.gov/briefing-room/presidential-actions/2021/01/21/
`executive-order-protecting-worker-health-and-safety/.
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`Act where the Secretary has not received a recommendation to take legal
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`action from an OSHA inspector. It remains the fact that an OSHA inspector
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`has not yet made such a recommendation and OSHA’s intervening actions
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`in concluding its inspection and issuing a final decision not to cite the Plant
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`means only that such a recommendation will not occur in this case. The case
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`and controversy presented to the court, however, was never dependent upon
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`there being a possibility of such a recommendation.
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`It remains true that if Plaintiffs’ reading of Section 13(d) of the Act is
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`correct, they are still able to obtain the relief they seek regardless of the
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`status of OSHA’s inspection. That is, according to Plaintiffs theory of Section
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`13(d), any time the Secretary arbitrarily and capriciously fails to seek relief
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`under the Act—which Plaintiffs argue remains ongoing—workers are able to
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`bring an action for a writ of mandamus compelling the Secretary to ask a
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`court to require the employer—here, the Plant—to abate the imminent
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`danger. In other words, Plaintiffs would be able to petition a court for relief
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`whenever the Secretary arbitrarily and capriciously fails to take action under
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`the Act, regardless of whether OSHA believes action should be taken.
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`If, however, Defendant’s reading of Section 13(d) of the Act is correct
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`in that workers may not seek relief in federal court unless and until the
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`Secretary arbitrarily and capriciously declines a recommendation by an
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`OSHA inspector to take action, then OSHA’s recent decision not to issue a
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`citation to the Plant does not change the fact that Plaintiffs were never
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`entitled to relief under Section 13(d), since no recommendation was denied
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`by the Secretary.
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`Therefore, because OSHA’s recent actions do not alter the court’s
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`ability to grant Plaintiffs the relief which they seek, mootness does not apply.
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`b. Motion to Strike
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`In this motion, Defendants seek to have three exhibits stricken from
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`the record that Plaintiffs’ attached to their post-hearing brief: (1) an unsworn
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`declaration from plaintiff Jane Doe II, (Doc. 43-2); (2) a declaration from an
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`anonymous non-plaintiff, identified only as a mechanic for the Plant, (Doc.
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`43-3); and (3) a declaration from Melissa J. Perry, Sc.D., M.H.S, (Doc. 43-
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`4), “an epidemiologist who has studied meat-processing plants.” (Doc. 43, at
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`15).
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`Defendants note that, despite having had the opportunity to present
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`these witnesses at the hearing, none were called and, further, Plaintiffs did
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`not seek leave of court to attach these declarations to their brief. Defendants
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`argue that they will be prejudiced by the inclusion of these documents in the
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`record because they were not afforded an opportunity to object or to cross-
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`examine these witnesses. In particular, they argue they would be prejudiced
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`by Dr. Perry’s declaration because she is offered as an expert. Defendants
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`emphasize that the Federal Rules provide strict safeguards on expert
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`testimony to ensure its accuracy and that the opposing party’s rights are
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`safeguarded, and they argue that Plaintiffs cannot circumscribe these rules
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`by simply attaching this testimony in the form of a declaration to a brief.
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`The court agrees and will GRANT the motion to strike. (Doc. 44). The
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`court’s July 23, 2020 order specifically directed the parties to “be prepared
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`to present evidence.” (Doc. 6, at 2). Significantly, Plaintiffs indicated their
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`intent to do so via a notice of “Plaintiffs’ Proposed Plans for [July] 31 Hearing”
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`in which
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`they stated
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`that
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`they planned
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`to produce witnesses by
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`videoconference. (Doc. 27, at 2). Nevertheless, Plaintiffs did not attempt to
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`produce testimonial evidence at the hearing and, instead, seek to do so via
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`the exhibits at issue. Although Plaintiffs argue that some of the information
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`in the exhibits was “not available at the time of the hearing,” (Doc. 48, at 2),
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`Plaintiffs did not seek to make arrangements with the court for post-hearing
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`submission of this evidence.
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`Having had and declined the opportunity to produce this evidence in
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`open court where it could be subject to cross examination by Defendants,
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`the court agrees with Defendants that to permit Plaintiffs to submit it as an
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`attachment to a brief without leave of court would be prejudicial to
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`Defendants. See Lujan v. Nat’l Wildlife Federation, 497 U.S. 871, 895 (1990)
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`(holding the district court did not abuse its discretion in refusing to admit
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`affidavits submitted after a hearing on a motion for summary judgment);
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`Drippe v. Tobelinski, 604 F.3d 778, 783 (3d Cir. 2010) (observing district
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`courts are afforded “great deference with regard to matters of case
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`management).
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`In any case, to the extent the exhibits would aid the court, it would be
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`solely with respect to the factual allegations about the conditions of the Plant
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`and whether they constitute an imminent danger—an issue the court does
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`not reach in light of its disposition on the motion to dismiss. Accordingly, the
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`three exhibits, (Doc. 43-2; Doc. 43-3; Doc. 43-4), are STRICKEN FROM THE
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`RECORD.4
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`c. Plaintiffs’ Claim under 29 U.S.C §662(d)
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`The Occupational Safety and Health Act of 1970, 29 U.S.C. §651 et
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`seq. was enacted “to assure so far as possible every working man and
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`woman in the Nation safe and healthful working conditions and to preserve
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`4 Defendants note that one of the declarations, (Doc. 43-2), was not
`signed under penalty of perjury. Plaintiffs acknowledge this error and have
`attempted to remedy it by submission of a supplemental declaration, (Doc.
`50). For the same reasons, it will likewise be STRICKEN FROM THE
`RECORD.
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`our human resources.” 29 U.S.C. §651(b). Thus, “Congress authorized the
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`Secretary of Labor to set mandatory occupational safety and health
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`standards applicable to all businesses affecting interstate commerce . . . .”
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`Gade v. Nat'l Solid Wastes Mgmt. Ass'n, 505 U.S. 88, 96 (1992).
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`The Plant is an institutional food services provider that produces pre-
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`portioned frozen meat products for schools, universities, nursing homes, and
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`military bases. Justice at Work is a non-profit legal organization based in
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`Pennsylvania that has been designated by Plaintiffs to serve as their
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`representative. Jane Does I, II, and III are employees of the Plant, who
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`package raw meat into containers.
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`Plaintiff’s forty-nine-page complaint contains approximately twenty-six
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`pages of background and eighteen pages of factual allegations relating to
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`OSHA’s response to the COVID-19 pandemic, as well as the risks of the
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`COVID-19 to the employees at the Plant. Plaintiffs allege that, since the
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`beginning of March, Plant employees have complained to their bosses and
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`to OSHA about conditions at the Plaint which, they fear, substantially
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`increase the risk of spread of COVID-19. Among other things, Plaintiffs
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`contend that the Plant has configured the production line such that
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`employees cannot socially distance; has only occasionally provided masks,
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`expecting employees to provide their own; has failed to provide adequate
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`handwashing opportunities or inform workers of potential exposures; and
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`has rotated in workers from other facilities in a way that increases the risk of
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`spread.
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`Plaintiffs allege that, in early April 2020, a non-plaintiff employee
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`alerted OSHA to the conditions at the Plant, (Doc. 2-1, at 40), but OSHA
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`dismissed the complaint based upon the Plant’s response. Without
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`knowledge of the April 2020 complaint, Plaintiffs filed their own complaint
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`with OSHA, which they call the “Imminent Danger Complaint,” detailing their
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`concerns about Plant conditions, including their allegations about the lack of
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`safe personal protective equipment and the failure to slow production line
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`speeds, maintain social distancing, or provide hand-washing breaks and
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`facilities. (Doc. 2-3, at 2). Plaintiffs closed by asking that OSHA “investigate
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`this facility immediately.” (Doc. 2-3, at 6).
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`Plaintiffs contend this complaint met all requirements of a formal
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`imminent danger notice under Section 8(f)(1) of the Act, 29 U.S.C. §657(f)(1),
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`which states,
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`Any employees or representative of employees who
`believe that a violation of a safety or health standard
`exists that threatens physical harm, or that an
`imminent danger exists, may request an inspection
`by giving notice to the Secretary or his authorized
`representative of such violation or danger. Any such
`notice shall be reduced to writing, shall set forth with
`reasonable particularity the grounds for the notice,
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`the employees or
`and shall be signed by
`representative of employees, and a copy shall be
`provided the employer or his agent no later than at
`the time of inspection, except that, upon the request
`of the person giving such notice, his name and the
`names of individual employees referred to therein
`shall not appear in such copy or on any record
`published, released, or made available pursuant to
`subsection (g) of this section. . . .
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`29 U.S.C. §657(f)(1). This Subsection continues, indicating what must occur
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`after such a request is received:
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`If upon receipt of such notification the Secretary
`determines there are reasonable grounds to believe
`that such violation or danger exists, he shall make a
`special inspection in accordance with the provisions
`of this section as soon as practicable, to determine if
`such violation or danger exists. If the Secretary
`determines there are no reasonable grounds to
`believe that a violation or danger exists he shall notify
`the employees or representative of the employees in
`writing of such determination.
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`Thus, ultimately, the Secretary must either make a special inspection
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`Id.
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`“as soon as practicable,” or notify the employee of his determination that
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`there are no reasonable grounds to believe a violation or danger exists. Id.
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`Despite having received such a request, Plaintiffs argue in their complaint
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`that OSHA has neither conducted a special inspection nor notified them of a
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`determination that no reasonable grounds exist. Plaintiffs assert that they
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`have followed up with OSHA on no less than five occasions; however, OSHA
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`has provided little information with respect to the status of its investigation.
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`Plaintiffs also make the concerning allegation that their counsel was told in
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`a June 1, 2020 phone conversation with Assistant Area Director Susan
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`Giguere that OSHA will not treat any complaint regarding COVID-19 as an
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`imminent danger complaint. (Doc. 2-2, at 2-3).
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`Due to the continued signals to the Plant that it need not make changes
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`despite OSHA’s awareness of the safety issues present since April 2020,
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`Plaintiffs contend that their only relief was to file the present complaint in
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`mandamus pursuant to Section 13(d) of the Act, 29 U.S.C. §662(d). Plaintiffs
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`argue that they have “done everything else they can do to bring the dangers
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`at issue to OSHA’s attention,” and yet OSHA has failed to acknowledge the
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`clear and imminent danger posed by COVID-19 to the Plant’s workers. This,
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`Plaintiffs argue, is arbitrary and capricious and therefore they are entitled to
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`petition the court in mandamus under Section 13(d) in order to obtain
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`immediate relief from the imminent dangers that they face. Despite framing
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`their complaint as seeking mandamus relief, however, Plaintiffs seek
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`additional specific relief as follows:
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`this Court all
`to Plaintiffs and
`a. Disclose
`communications to and from Maid-Rite regarding this
`matter;
`b. Conduct an immediate onsite inspection of the Plant;
`and
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`in all other actions and proceedings
`c. Engage
`necessary to resolving all the imminent dangers
`identified in th[e] Complaint, inadequate personal
`protective equipment, including inadequate social
`distancing
`on
`production
`lines,
`insufficient
`opportunities
`to engage
`in personal hygiene,
`improper incentives to continue attending work when
`sick, and insufficient information about workers’
`exposure to COVID-19 at the plant.
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`(Doc. 1, at 47).5
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`Mandamus provides a “drastic remedy that a court should grant only
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`in extraordinary circumstances.” Hahnemann Univ. Hosp. v. Edgar, 74 F.3d
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`456, 461 (3d Cir. 1996) (internal citations and quotation marks omitted).
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`As the writ is one of the most potent weapons in the
`judicial arsenal, three conditions must be satisfied
`before it may issue. First, the party seeking issuance
`of the writ [must] have no other adequate means to
`attain the relief he desires—a condition designed to
`ensure that the writ will not be used as a substitute
`for
`the regular appeals process. Second,
`the
`petitioner must satisfy the burden of showing that
`[his] right to issuance of the writ is clear and
`indisputable. Third, even if the first two prerequisites
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`5 After learning that OSHA had conducted an onsite inspection on July
`9, 2020, Plaintiffs in their post-hearing brief ask that Defendants be required
`to conduct “another onsite inspection . . . this time unannounced.” (Doc. 43,
`at 30). Plaintiffs, however, have not amended their Complaint and may not
`do so via a brief in opposition to a motion to dismiss. See Commonwealth of
`Pa. ex rel. Zimmerman v. PepsiCo, Inc., 836 F.2d 173, 181 (3d Cir. 1988)
`(“[I]t is axiomatic that the complaint may not be amended by the briefs in
`opposition to a motion to dismiss.” (internal quotation marks omitted)).
`Accordingly, the court will proceed on the basis of the relief sought in the
`Complaint—a portion of which is now moot, given an onsite inspection has
`been done.
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`have been met, the issuing court, in the exercise of
`its discretion, must be satisfied that the writ is
`appropriate
`under
`the
`circumstances.
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`Cheney v. U.S. Dist. Court for D.C., 542 U.S. 367, 380-81 (2004) (internal
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`citations and quotation marks omitted).
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`Before the court reaches the issue of the merits of the writ, however, it
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`must satisfy itself that this action is properly before this court. Defendants, in
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`their filings, generally argue that the Complaint should be dismissed because
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`Plaintiffs cannot establish the prerequisites to filing a claim under Section
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`13(d).6 Namely, Defendants note that the Secretary has not received a
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`recommendation from an OSHA inspector that an imminent danger exists
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`and that he should seek an injunction and, as a result, they argue the court
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`lacks jurisdiction to review whether the Secretary has acted arbitrarily or
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`capriciously in failing to seek that recommended relief. Defendants
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`emphasize that this is a first-of-its-kind lawsuit and that no court has ever
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`6 Defendants initially argued that the case should be dismissed for
`failure to state a claim under Federal Rule of Civil Procedure 12(b)(6). In their
`post-hearing brief, Defendants argue that the case should also be dismissed
`for lack of subject matter jurisdiction.
`The court finds that it is does indeed possess federal question subject
`matter jurisdiction over this action pursuant to 28 U.S.C. §1331, insofar this
`case presents a question under federal law—to wit, 29 U.S.C. §662(d).
`However, as explained infra, the court concludes that it must dismiss this
`matter because the limited circumstances under which a district court has
`jurisdiction over a Section 13 action are not present here.
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`concluded that Section 13(d) of the Act permits private litigants to challenge
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`how OSHA conducts its investigations, evaluates complaints, or handles
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`enforcement actions.7
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`
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`Defendants observe that the Secretary has broad prosecutorial
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`discretion to enforce the Act and, with limited exceptions, nearly all
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`enforcement actions are heard by the Occupational Safety and Health
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`Review Commission (“OSHRC”). Cases are heard by an OSHRC
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`administrative law judge, whose decision may be reviewed by the full
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`OSHRC. Only after exhausting this administrative process is it possible to
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`petition a court of appeals.
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`Section 13 of the Act, however, provides a limited vehicle by which the
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`Secretary may petition a district court without delay. Defendants describe the
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`Section 13 process as follows. Under Section 13(a), where conditions exist
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`in a place of employment that “could reasonably be expected to cause death
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`or serious physical harm” before it can be eliminated though other
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`enforcement procedure in the Act, the Secretary may seek an order from a
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`district court requiring the employer to eliminate the imminent danger. 29
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`U.S.C. §662(a). Section 13(c) states that, if an OSHA inspector concludes
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`7 Defendants state that the Secretary has only sought an injunction
`under Section 13 of the Act on three occasions.
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`that such imminent danger conditions exist in a place of employment, “he
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`shall inform the affected employees and employers of the danger and that
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`he is recommending to the Secretary that relief be sought.” 29 U.S.C.
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`§662(c).
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`
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`If, however, the Secretary “arbitrarily or capriciously fails to seek relief
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`under [] [S]ection [13], any employee who may be injured by reason of such
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`failure, or the representative of such employees, might bring an action
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`against the Secretary in the United States district court for the district . . . for
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`a writ of mandamus to compel the Secretary to seek such an order and for
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`such further relief as may be appropriate.” 29 U.S.C. §662(d). Thus,
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`Defendants contend that Section 13(d) only provides the ability for an
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`employee to seek mandamus to force the Secretary to do that which he
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`arbitrarily and capriciously refused to—i.e., to file a petition in the district
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`court seeking to restraining the imminent danger. Parenthetically, in light of
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`Defendants’ December 2, 2020 letter, this process will not play out in the
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`present case since OSHA has concluded its investigation and has indicated
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`that it will not recommend that the Secretary take action.
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`As outlined at the hearing, Defendants indicate that there are several
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`internal steps in the Section 13(d) investigatory process. When OSHA
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`receives a complaint, an OSHA inspector, also known as Compliance Safety
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`and Health Officer (“CSHO”), see 29 C.F.R. §1903.13, makes a
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`determination as to whether an imminent danger exists. If the inspector
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`determines that there is no imminent danger, the Section 13 process ends,
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`but OSHA may continue to investigate, issue citations, and seek the
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`employer’s compliance.
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`If, however, the inspector determines there is an imminent danger, the
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`inspector must inform the affected employees and employer and recommend
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`to the Secretary that he seek injunctive relief against the employer. At that
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`point, Defendants assert the Secretary can either agree and file suit or
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`disagree. However, Defendants argue, it is only where the Secretary
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`disagrees and arbitrarily or capriciously rejects the recommendation to take
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`action that an employee can step in an seek judicial intervention.
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`In this case, Defendants indicate that OSHA’s Wilkes-Barre Area
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`Office received two complaints in April and May 2020 alleging that the Plant
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`was not taking steps to protect employees from the spread of COVID-19.
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`Defendants state that OSHA considered the two complaints together as one
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`non-formal complaint, which it sent to the Plant.8 The Plant responded and
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`8 Defendants explain that, “[t]ypically, non-formal complaints are
`initially handled through an ‘inquiry,’ under which OSHA notifies the
`employer of the complaint and asks for a response,” after which a formal
`inspection may occur depending upon the employer’s response. (Doc. 24, at
`20). At the hearing, Ms. Giguere testified that whether a complaint is
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`sent documentation detailing its efforts to control the virus. Area Director
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`Mark Stelmack (“Stelmack”) and Assistant Area Director Susan Giguere
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`(“Giguere”) reviewed the case and, in late May 2020, determine