Case: 20-73203, 12/31/2020, ID: 11949676, DktEntry: 13-1, Page 1 of 47
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`No. 20-73203
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`IN THE UNITED STATES COURT OF APPEALS
`FOR THE NINTH CIRCUIT
`________________________
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`AMERICAN FEDERATION OF TEACHERS; AMERICAN FEDERATION
`OF STATE, COUNTY AND MUNICIPAL EMPLOYEES; WASHINGTON
`STATE NURSES ASSOCIATION; UNITED NURSES ASSOCIATION OF
`CALIFORNIA,
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`Petitioners,
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`v.
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`OCCUPATIONAL SAFETY AND HEALTH ADMINISTRATION; UNITED
`STATES DEPARTMENT OF LABOR; EUGENE SCALIA, in his official
`capacity as Secretary of the United States Department of Labor,
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`Respondents.
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`On Petition for a Writ of Mandamus
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`DEPARTMENT OF LABOR’S OPPOSITION TO THE
`PETITION FOR A WRIT OF MANDAMUS
`_________________________
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`KATE S. O’SCANNLAIN
`Solicitor of Labor
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`EDMUND C. BAIRD
`Associate Solicitor for
` Occupational Safety and Health
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`HEATHER R. PHILLIPS
`Counsel for Appellate Litigation
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`Case: 20-73203, 12/31/2020, ID: 11949676, DktEntry: 13-1, Page 2 of 47
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`JOSEPH G. GILLILAND
`Attorney
`U.S. Department of Labor
`200 Constitution Ave., NW, Rm. S-4004
`Washington, DC 20210
`(202) 693-5636
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`December 31, 2020
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`Case: 20-73203, 12/31/2020, ID: 11949676, DktEntry: 13-1, Page 3 of 47
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`TABLE OF CONTENTS
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`TABLE OF AUTHORITIES ................................................................................... iii
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`INTRODUCTION ..................................................................................................... 1
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`STATEMENT OF THE CASE
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`I. Statutory and Regulatory Framework ........................................................... 2
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`II. Background
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`A. OSHA’s Response to Petitioners’ 2009
`H1N1-Related Requests ...................................................................... 5
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`B. OSHA’s Ongoing Response to COVID-19 ...................................... 10
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`C. The D.C. Circuit Petition .................................................................. 12
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`STANDARD OF REVIEW ..................................................................................... 12
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`ARGUMENT ........................................................................................................... 13
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`I. The Petitioners Lack Standing For Their Claim ......................................... 14
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`II. The Petition Is Barred by Res Judicata ....................................................... 20
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`III. The Petitioners Are Not Entitled to a Writ of Mandamus
`Because the Secretary is Under No Duty to Issue
`an Infectious Diseases NPRM or Final Standard ........................................ 23
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`A. The Secretary Possesses Broad Discretion in Setting
`Safety and Health Standards and in Deciding
`Rulemaking Priorities ....................................................................... 24
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`B. OSHA Has not Determined that an Infectious
`Diseases Standard Should Issue ....................................................... 26
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`i
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`IV. The Secretary’s Decision to Place the Infectious Diseases
`Rulemaking on the Long-Term Agenda and in the
`Meantime to Address the Hazard of Infectious Diseases
`by Other Means Was Reasonable ............................................................... 30
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`ii
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`TABLE OF AUTHORITIES
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`Page(s)
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`
`Cases
`
`Pub. Citizen Health Research Grp. v. Chao,
`314 F.3d 143 (3d Cir. 2002) ................................................................................. 29
`
`Pub. Citizen Health Research Grp. v. Auchter,
`702 F.2d 1150 (D.C. Cir. 1983) ............................................................................ 29
`
`Am. Diabetes Ass’n v. United States Dep’t of the Army,
`938 F.3d 1147 (9th Cir. 2019) .............................................................................. 19
`
`Associated Gen. Contractors of Am., San Diego Chapter, Inc. v. Cal. Dep’t of
`Transp.,
`713 F.3d 1187 (9th Cir. 2013) .............................................................................. 15
`
`Bldg. & Const. Trades Dep’t, AFL-CIO v. Brock,
`838 F.2d 1258 (D.C. Cir. 1988) ............................................................................ 24
`
`Cunningham v. United States,
`786 F.2d 1445 (9th Cir. 1986) ........................................................................ 23, 24
`
`Donovan v. Royal Logging Co.,
`645 F.2d 822 (9th Cir. 1981) .................................................................... 3, 6, 7, 33
`
`Dutta v. State Farm Mutual Automobile Ins. Co.,
`895 F.3d 1166 (9th Cir. 2018) .............................................................................. 20
`
`Heckler v. Chaney,
`470 U.S. 821 (1985) .............................................................................................. 25
`
`In re A Community Voice,
`878 F.3d 779 (9th Cir. 2017) .......................................................................... 13, 30
`
`In re Am. Fed’n of Labor & Cong. of Indus. Orgs.,
`2020 WL 3125324 (D.C. Cir. June 11, 2020) .......................................... 12, 23, 28
`
`In re Barr Labs., Inc.,
`930 F.2d 72 (D.C. Cir. 1991) ................................................................................ 29
`
`
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`In re Cal. Power Exch. Corp.,
`245 F.3d 1110 (9th Cir. 2001) .................................................................. 13, 23, 30
`
`In re Int'l Chem. Workers Union,
`958 F.2d 1144 (D.C. Cir. 1992) ............................................................................ 29
`
`In re Nat. Res. Def. Council, Inc.,
`956 F.3d 1134 (9th Cir. 2020) ........................................................................ 30, 31
`
`Indus. Union Dep’t, AFL-CIO v. Am. Petroleum Inst.,
`448 U.S. 607 (1980) ................................................................................................ 3
`
`Intern. Union v. Chao,
`361 F.3d 249 (3d Cir. 2004) ........................................................................... 26, 27
`
`Lujan v. Defs. of Wildlife,
`504 U.S. 555 (1992) .............................................................................................. 14
`
`Media Rights Techs., Inc. v. Microsoft Corp.,
`922 F.3d 1014 (9th Cir. 2019) .............................................................................. 21
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`National Cable & Telecomm. Ass’n v. Brand X,
`545 U.S. 967 (2005) .............................................................................................. 26
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`Nat’l Cong. of Hispanic Am. Citizens v. Usery,
`554 F.2d 1196 (D.C. Cir. 1977) ............................................................................ 25
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`Nat'l Wildlife Fed’n v. Nat’l Marine Fisheries Serv.,
`524 F.3d 917 (9th Cir. 2008) ................................................................................ 19
`
`Oil, Chem. & Atomic Workers Int’l Union v. Occupational Safety & Health Review
`Comm’n,
`671 F.2d 643 (D.C. Cir. 1982) .............................................................................. 25
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`Oil, Chem. & Atomic Workers Union v. Occupational Safety & Health Admin.,
`145 F.3d 120 (3d Cir. 1998) ............................................................... 32, 33, 35, 36
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`Phelps Dodge Corp. v. Occupational Safety & Health Review Comm’n,
`725 F.2d 1237 (9th Cir. 1984) .............................................................................. 24
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`Pub. Citizen, Inc. v. Trump,
`297 F. Supp. 3d 6 (D.D.C. 2018) .............................................................. 19, 21, 28
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`Reich v. Mont. Sulphur & Chem. Co.,
`32 F.3d 440 (9th Cir. 1994) .......................................................................... 2, 3, 33
`
`Summers v. Earth Island Inst.,
`555 U.S. 488 (2009) .............................................................................................. 20
`
`Tahoe-Sierra Pres. Council, Inc. v. Tahoe Reg’l Planning Agency,
`322 F.3d 1064 (9th Cir. 2003) .............................................................................. 22
`
`Taylor v. Sturgell,
`553 U.S. 880 (2008) .............................................................................................. 22
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`Telecomms. Research & Action Ctr. v. FCC,
`750 F.2d 70 (D.C. Cir. 1984) ................................................................................ 13
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`Williams Nat’l Gas Co. v. FERC,
`872 F.2d 438 (D.C. Cir. 1989) .............................................................................. 28
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`Wojciechowski v. Kohlberg Ventures, LLC,
`923 F.3d 685 (9th Cir. 2019) ................................................................................ 20
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`Statutes
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` 5
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` U.S.C. § 609(b) ...................................................................................................... 8
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`29 U.S.C. § 654(a)(1) ................................................................................................ 2
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`29 U.S.C. § 655(b) ...................................................................................... 12, 22, 24
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`29 U.S.C. § 655(b)(1).................................................................................... 3, 26, 30
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`29 U.S.C. § 655(c) .................................................................................................. 22
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`29 U.S.C. § 655(g) ...................................................................................... 25, 31, 36
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`29 U.S.C. § 667(b) .................................................................................................... 4
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`29 U.S.C. § 667(c)(2) .............................................................................................. 18
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`29 U.S.C. § 655(b)(5).............................................................................................. 26
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`Regulations
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`29 C.F.R. § 1910.132 .......................................................................................... 4, 15
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`29 C.F.R. § 1910.133 ................................................................................................ 4
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`29 C.F.R. § 1910.134 ................................................................................................ 4
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`29 C.F.R. § 1910.138 ................................................................................................ 4
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`29 C.F.R. § 1910.141 ................................................................................................ 4
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`29 C.F.R. § 1953.5(a) .............................................................................................. 18
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`Delegation of Authority and Assignment of Responsibility, Secretary’s,
`85 Fed. Reg. 58393, 58393 (2020) ......................................................................... 3
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`Infectious Diseases,
`75 FR 24835 (May 6, 2010) ................................................................................... 8
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`INTRODUCTION
`Petitioners ask this Court for a drastic remedy: a writ of mandamus
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`compelling the Occupational Safety and Health Administration (OSHA) to engage
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`in a rulemaking the agency has determined, in its discretion, does not warrant
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`immediate action. They seek this extraordinary remedy at a time when OSHA is
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`responding around the clock to a far-reaching and unprecedented pandemic. Their
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`petition claims that OSHA has abrogated its responsibility to address infectious
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`diseases in the healthcare sector. To the contrary, OSHA’s aggressive, multi-
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`faceted approach to the current pandemic demonstrates that the agency has been
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`far from idle in addressing the risk infectious diseases pose to workers.
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`From the outset of the COVID-19 crisis, OSHA has worked tirelessly to
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`protect workers. It has vigorously enforced existing requirements by conducting
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`thousands of COVID-19-related investigations and issuing hundreds of citations.
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`Further, OSHA has issued extensive guidance, much of which is industry-specific
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`and all of which may be easily and quickly updated as information regarding
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`COVID-19 continues to evolve.
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`Amidst this pandemic, Petitioners, however, want OSHA to divert its
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`resources towards proposing and then finalizing a complex health standard for
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`infectious diseases applicable to only one segment of the workforce. But to the
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`extent that the Petitioners actually seek a COVID-19 standard, this action is
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`1
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`squarely precluded by the D.C. Circuit’s rejection of their representative’s previous
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`petition. And if their goal is a standard beyond COVID-19, Petitioners cannot
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`establish that anything non-COVID-19-related should be given priority given the
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`agency’s limited resources and the desire to incorporate lessons from the COVID-
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`19 pandemic into any final standard.
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`Ultimately, the Secretary has discretion, exercised with the Department’s
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`expertise, to allocate scarce agency resources as he determines is most appropriate.
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`Because the Secretary has no clear and indisputable duty to issue a standard, the
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`Court should soundly reject Petitioners’ invitation to make expertise and policy-
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`laden determinations that Congress has squarely placed within the Secretary’s
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`purview.
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`STATEMENT OF THE CASE
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`I.
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`Statutory and Regulatory Framework
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`The Occupational Safety and Health Act (the OSH Act or the Act) imposes
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`two duties on employers: a “general duty” to provide employment and places of
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`employment “free from recognized hazards that are causing or are likely to cause
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`death or serious physical harm” to employees, 29 U.S.C. § 654(a)(1) (“general
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`duty clause”); and a specific duty to comply with all applicable standards
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`promulgated under the Act, id. § 654(a)(2); see also Reich v. Mont. Sulphur &
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`Chem. Co., 32 F.3d 440, 445 (9th Cir. 1994). As to the latter, the Act allows that
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`2
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`the Secretary “may promulgate” an occupational safety and health standard when
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`he determines “that a rule should be promulgated in order to serve the [Act’s]
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`objectives . . . .”1 29 U.S.C. § 655(b)(1).
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`For the Secretary to exercise his discretionary authority, he must first
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`determine that a standard is “reasonably necessary and appropriate to remedy a
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`significant risk of material health impairment.” Indus. Union Dep’t, AFL-CIO v.
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`Am. Petroleum Inst., 448 U.S. 607, 639-40 (1980) (plurality opinion) (“Benzene”).
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`“In determining the priority for establishing standards …, the Secretary shall give
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`due regard to the urgency of the need for mandatory safety and health standards for
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`particular … workplaces or work environments.” Id. § 655(g).
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`Health and safety standards issued under the Act “do not define the entire
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`universe of OSHA’s investigatory authority.” See Mont. Sulphur & Chem. Co., 32
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`F.3d at 445. OSHA possesses the same authority to investigate and cite employers
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`under the general duty clause as it does under its standards. See id. Wherever
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`OSHA has not promulgated a standard, the general duty clause applies. Donovan v.
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`Royal Logging Co., 645 F.2d 822, 829 (9th Cir. 1981).
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`1 The Secretary has delegated his responsibilities under the Act to the Assistant
`Secretary for Occupational Safety and Health, who heads OSHA. Delegation of
`Authority and Assignment of Responsibility, Secretary’s Order 8-2020, 85 Fed.
`Reg. 58393, 58393 (2020). This brief uses the terms “Secretary” and “OSHA”
`interchangeably.
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`3
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`The OSH Act permits states, with federal approval, to “assume
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`responsibility for development and enforcement therein of occupational safety and
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`health standards relating to an occupational safety or health issue with respect to
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`which a [f]ederal standard has been promulgated . . . .” 29 U.S.C. § 667(b).
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`Standards developed by these “State Plans” must be at least as effective in
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`providing safe and healthful employment as federal standards; that is, the federal
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`standard establishes a floor and states may only establish stricter requirements. Id.
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`§ 667(c)(2). Subject to certain requirements, State Plans develop and enforce their
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`own requirements for these safety and health issues in lieu of enforcement by
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`Federal OSHA. See id. § 667(b)-(c). Federal standards applicable in the context of
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`infectious diseases include standards covering respiratory protection (29 C.F.R.
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`§ 1910.134), personal protective equipment (PPE) (29 C.F.R. §§ 1910.132, .133,
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`.138), and sanitation (29 C.F.R. § 1910.141). See Declaration of Loren Sweatt,
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`Principal Deputy Assistant Secretary of Labor for Occupational Safety and Health
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`(“Sweatt Decl.”), Addendum Tab C, ¶¶ 16-20. Where no federal standard exists
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`with respect to a particular safety or health issue, states are free to assert
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`jurisdiction over that issue under state law. Id. at § 667(a).
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`II.
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`Background
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`A. OSHA’s Response to Petitioners’ 2009 H1N1-Related Requests
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`OSHA’s consideration of an infectious disease standard originated with the
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`2009 H1N1 influenza pandemic. In May 2009, Petitioners the American
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`Federation of State, County and Municipal Employees (AFSCME) and the
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`American Federation of Teachers (AFT), along with several other unions affiliated
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`with the American Federation of Labor and Congress of Industrial Organizations
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`(AFL-CIO), submitted two letter petitions to OSHA requesting certain actions to
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`address the H1N1 virus. Pet. App. at Tab A (“AFSCME 2009 Petition”), p. A2;2
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`Pet. App. at Tab B (“AFL-CIO 2009 Petition”), p. A5. The AFSCME requested
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`that OSHA “use its existing standards covering respiratory protection and personal
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`protective equipment and use its authority to enforce those standards in health care
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`settings and where workers may be at higher risk of exposure to this flu virus” and
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`“use its authority to make the current OSHA [H1N1 guidance for the healthcare
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`sector] mandatory for health care facilities under its general duty clause.”
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`AFSCME 2009 Petition at A2. AFSCME also expressed its “support” for OSHA
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`2 Citations to “Pet. App.” refer to the appendix submitted by Petitioners along with
`their petition. Citations to “Addendum” refer to the addendum to this brief.
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`5
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`“moving quickly to develop and issue a mandatory comprehensive standard” for
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`infectious diseases. Id.
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`The AFL-CIO’s May 18, 2009 letter similarly requested that “OSHA
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`immediately issue” guidance making clear the hazard the novel H1N1 virus poses
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`in healthcare settings and in emergency response activities. It further asked that the
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`guidance specify that OSHA’s respiratory protection standard, personal protective
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`equipment standard, and general duty clause apply to exposures to the novel H1N1
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`virus in these settings. AFL-CIO 2009 Petition, at A6. The AFL-CIO also “urge[d]
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`OSHA to move expeditiously to develop and adopt a mandatory comprehensive
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`standard to protect healthcare workers and others at high risk, from airborne
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`infectious diseases similar to the existing comprehensive standard on bloodborne
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`diseases.” Id. at A7.
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`By letter dated June 5, 2009, OSHA’s then-Acting Assistant Secretary
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`acknowledged the AFL-CIO’s request for more enforcement guidance related to
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`the novel H1N1 pandemic. Addendum Tab A. OSHA’s letter stated that the agency
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`was “considering these and several other options” to address the short term threat
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`of the H1N1 virus and “the potential long-term threat of airborne transmissible
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`diseases,” and noted that the agency would further respond to the petition once it
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`completed its evaluation of the request. Id.
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`On July 24, 2009, then-Secretary Solis sent a similar letter to AFSCME.
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`Addendum Tab B. Secretary Solis informed AFSCME that OSHA was “evaluating
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`various options” to address the H1N1 virus and “the potential long-term threat of
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`airborne transmissible diseases” and that the agency would “seriously consider
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`[AFSCME’s] request in our deliberations ....” Id.
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`Ultimately, OSHA issued multiple guidance documents addressing
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`pandemic H1N1 influenza. These included a Fact Sheet identifying methods to
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`protect healthcare workers,3 a Compliance Directive informing OSHA inspectors
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`how and when to cite employers under existing standards and the general duty
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`clause,4 and the 100-page Pandemic Influenza Preparedness and Response
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`Guidance for Healthcare Workers and Healthcare Employers.5 Some of this
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`guidance was developed in cooperation with the Petitioners. See Decl. of Rhonda
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`Weingarten, Pet. App. at Tab F, p. A199, ¶11.
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`3 See OSHA Fact Sheet: Healthcare Workplaces Classified as Very High or High
`Exposure Risk for Pandemic Influenza, What to do to protect workers. (May
`2009), available at https://www.osha.gov/Publications/exposure-risk-
`classification-factsheet.pdf.
`4 Enforcement Procedures for High to Very High Occupational Exposure Risk to
`2009 H1N1 Influenza, CPL-02-02-075 (November 20, 2009), available at
`https://www.osha.gov/OshDoc/Directive_pdf/CPL_02_02-075.pdf.
`5 Available at https://www.osha.gov/Publications/OSHA_pandemic_health.pdf.
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`Additionally, on May 6, 2010, OSHA published a request for information
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`(“RFI”) on infectious diseases in healthcare and healthcare-related settings.
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`Infectious Diseases, 75 FR 24835 (May 6, 2010). The RFI sought information to
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`assist “OSHA in determining the effectiveness of approaches currently being used
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`to eliminate and minimize occupational exposure to infectious agents” and in
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`“determin[ing] what action, if any, the Agency may take to address these issues.”
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`Id. at 24839. In July 2011, OSHA held two informal stakeholder meetings “as an
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`extension of the May 2010 RFI.” See Stakeholder Meetings Report, Pet. App. at
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`Tab D, p. A172.
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`OSHA subsequently convened a Small Business Advocacy Review Panel in
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`October 2014 (“SBAR Panel”), as required by the Small Business Regulatory
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`Enforcement Fairness Act (“SBREFA”), 5 U.S.C. § 609(b). See SER Background
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`Doc., Pet. App. at Tab C, p. A12. As part of the SBREFA process, OSHA
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`developed a draft framework “that demonstrat[ed] OSHA’s current thinking on the
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`elements” that a potential infectious diseases standard might contain should OSHA
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`decide to propose such a standard. Id. at A10. OSHA expressly noted, however,
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`that it had not yet developed a proposed rule or standard addressing occupational
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`exposure to infectious diseases. Id. at A122. OSHA explained that it was
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`conducting the SBAR panel early in the regulatory process and that the agency had
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`“not yet estimated the aggregate benefits and costs” of such a rule. Id. at A4.
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`OSHA also explained that it was “continuing to analyze the available information
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`and [had] not yet made any final determinations regarding risk,” as required by the
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`OSH Act. Id. at A25-A26.
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`The draft framework represented OSHA’s “initial thinking” at the time, and
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`its “preferred alternative;” but the agency was clear that it was “still considering a
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`number of alternatives and options . . . .” Id. at A36. Indeed, OSHA sought input
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`from the SBAR panel on ten regulatory alternatives and eight options, including
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`non-regulatory solutions such as enforcement through the general duty clause. See
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`id. at A128-A143. The SBAR panel issued its report and recommendations on the
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`draft framework and alternatives on December 22, 2014. SBAR Panel Report, p.
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`3.6
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`In the two years following the SBREFA process, OSHA continued to
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`analyze the information, data, and stakeholder feedback regarding a potential
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`infectious diseases standard, but did not publish a proposed rule. In 2017, the
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`agency assessed the information at hand and determined that the potential
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`infectious diseases rulemaking should be redesignated as a “Long-Term Action”
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`on the Unified Regulatory Agenda. See Declaration of Andrew Levinson, Deputy
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`Director, OSHA Directorate of Standards and Guidance (“Levinson Decl.”),
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`Addendum Tab D, ¶¶ 1, 4. Specifically, OSHA determined that the existing
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`6 Available at https://www.osha.gov/dsg/id/SBREFA_Panel_Report_Final.pdf.
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`enforcement tools the agency possessed—including existing standards, general
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`duty clause enforcement, and compliance assistance activities—all could be used
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`to address the risk of infectious diseases in this sector while the agency considered
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`the need for further action. Id. ¶ 2. In light of these available tools, the agency
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`chose to prioritize other rulemaking efforts in the short term. Id. ¶¶ 2-3.
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`Nonetheless, OSHA retained the infectious diseases rulemaking on the regulatory
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`agenda with the intent of further evaluating the appropriateness of a new standard
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`in the future. Id. ¶ 4.
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`B. OSHA’s Ongoing Response to COVID-19
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`In January 2020 when a novel coronavirus emerged in China, OSHA began
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`coordinating with other federal agencies and launched a dedicated website about
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`the virus to readily publish and distribute critical information for workers,
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`employers, and the general public. Sweatt Decl., ¶¶ 2-3. Since then, OSHA has
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`developed a broad collection of guidance materials, including detailed elaborations
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`of recommended mitigation measures, shorter alerts, news releases, posters, and
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`videos addressing COVID-19-related health and safety issues. Id. ¶ 4. These
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`include guidance specific to the healthcare sector, which acknowledges healthcare
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`settings as involving a “high” to “very high” risk of exposure to COVID-19 and
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`identifies various engineering controls, administrative controls, work practices, and
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`PPE to protect workers. Id. ¶¶ 5-6. The guidance also informs workers and
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`employers that existing OSHA standards such as those covering respiratory
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`protection, PPE, and sanitation apply in the context of protecting healthcare
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`workers from exposure to COVID-19. Id. ¶¶ 9, 16-20; see also OSHA Health
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`Topics Page: COVID-19 Control and Prevention, Healthcare Workers and
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`Employers, https://www.osha.gov/SLTC/covid-19/healthcare-workers.html.
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`OSHA also issued an interim enforcement response plan (Enforcement Plan)
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`on April 13, 2020, outlining OSHA’s COVID-19 enforcement approach. Sweatt
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`Decl., ¶ 9. The Enforcement Plan prioritized inspection of complaints and referrals
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`from workplaces at high risk for COVID-19 exposure as well as reports of
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`fatalities and imminent danger exposures related to COVID-19.7 Id.
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`As of December 30, 2020, OSHA had conducted over 11,427 investigations
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`of COVID-19-related complaints and initiated over 1,430 workplace inspections.
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`Id. ¶ 13. As a result of these inspections, OSHA has cited 294 employers for over
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`800 violations. Id. Of the 294 cited employers, 261 were healthcare establishments.
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`Id. The cited violations include failures to provide appropriate respiratory
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`protection or PPE; implement a written respiratory protection program; provide a
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`medical evaluation, respirator fit test, training on the proper use of a respirator and
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`personal protective equipment; report an injury, illness, or fatality; record an injury
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`7 In May 19, 2020, OSHA issued an updated interim enforcement response plan.
`Sweatt Decl., ¶ 10.
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`or illness on OSHA recordkeeping forms; and comply with the general duty clause.
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`Id. Of the cited violations, 656 involved PPE or respiratory protection. The
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`citations issued to date have resulted in proposed penalties totaling $3,849,222. Id.
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`C. The D.C. Circuit Petition
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`On March 6, 2020, Petitioner AFT and the federated union to which the
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`Petitioners are affiliated, the AFL-CIO, petitioned OSHA to adopt the infectious
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`diseases standard through an emergency temporary standard (ETS), which by
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`statute would be followed by notice-and-comment rulemaking.8 When the agency
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`opted to maintain its current pandemic-response strategy, the Petitioners, through
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`the AFL-CIO, sought a writ of mandamus from the D.C. Circuit. See Pet. for Writ
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`of Mandamus (“AFL-CIO Mandamus Pet.”), In re Am. Fed’n of Labor & Cong. of
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`Indus. Orgs., No. 20-1158, 2020 WL 3125324 (D.C. Cir. June 11, 2020). The D.C.
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`Circuit converted that action into a petition for judicial review and denied it. Id. at
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`1.
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`STANDARD OF REVIEW
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`Mandamus is “an extraordinary remedy justified only in exceptional
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`circumstances.” In re Cal. Power Exch. Corp., 245 F.3d 1110, 1120 (9th Cir. 2001)
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`
`8 While the vast majority of OSHA standards are promulgated through notice-and-
`comment rulemaking, see 29 U.S.C. § 655(b), the Secretary has authority in very
`limited circumstances to immediately impose an emergency standard without first
`using the notice-and-comment process. Id. § 655(c)(1) (emphasis added).
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`(internal quotation marks omitted). In the context of agency decisionmaking, use of
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`the writ is “even more rare” and “[t]he circumstances that will justify [the Court’s]
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`interference with nonfinal agency action must be truly extraordinary ....” Id.
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`(quoted source omitted). Petitioners must demonstrate: “(1) [their] claim is clear
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`and certain; (2) the duty is ministerial and so plainly prescribed as to be free from
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`doubt; and (3) no other adequate remedy is available.” In re Cal. Power Exch.
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`Corp., 245 F.3d at 1120 (quoted source omitted).
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`When determining whether to grant mandamus for an agency’s alleged
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`unreasonable delay, the existence of a clear, non-discretionary duty to act is a
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`threshold issue, because “an agency cannot unreasonably delay that which it is not
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`required to do.” In re A Community Voice, 878 F.3d 779, 784 (9th Cir. 2017). Only
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`if the Court finds that the agency’s duty to act is indisputable does the Court turn to
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`whether the agency’s delay has been unreasonable, applying the six-factor “TRAC”
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`balancing test. See id. citing Telecomms. Research & Action Ctr. v. FCC, 750 F.2d
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`70, 75 (D.C. Cir. 1984) (“TRAC”).
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`ARGUMENT
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`Petitioners seek a writ of mandamus that would compel the Secretary to
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`issue within ninety days a notice of proposed rulemaking (NPRM) for an
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`occupational health standard for infectious diseases in the healthcare industry, and
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`to thereafter “proceed on a priority, expedited basis to promptly issue a standard.”
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`Case: 20-73203, 12/31/2020, ID: 11949676, DktEntry: 13-1, Page 22 of 47
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`Pet. at 2. As a threshold matter, the Petitioners lack standing to bring this petition.
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`But regardless, the principles of res judicata bar the Petitioners’ claims. Though the
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`Court need not reach the merits, Petitioners have also failed to make the showing
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`required for the extraordinary relief of mandamus. The Court should therefore
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`deny the petition.
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`I.
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`The Petitioners Lack Standing For Their Claim
`Petitioners have failed to demonstrate that their alleged harms—the alleged
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`increased risk of contracting an infectious disease and diversion of union resources
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`due to a lack of a standard—are fairly traceable to OSHA’s actions or likely
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`redressable by a grant of mandamus from this Court.
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`To establish Article III standing to bring a claim, Petitioners must
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`demonstrate: (1) that they have suffered or are likely to suffer an injury-in-fact;
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`(2) that is fairly traceable to OSHA’s alleged del