20-3989-cv
`Palmer v. Amazon
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`In the
`United States Court of Appeals
`For the Second Circuit
`
`
`August Term, 2020
`No. 20-3989-cv
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`DERRICK PALMER, KENDIA MESIDOR, BENITA ROUSE, ALEXANDER
`ROUSE, BARBARA CHANDLER, LUIS PELLOT-CHANDLER, DEASAHNI
`BERNARD,
`Plaintiffs-Appellants,
`
`v.
`
`AMAZON.COM, INC., AMAZON.COM SERVICES, LLC,
`Defendants-Appellees.
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`
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`
`
`On Appeal from a Judgment of the United States
`District Court for the Eastern District of New York.
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`ARGUED: MAY 19, 2021
`DECIDED: OCTOBER 18, 2022
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`Before: JACOBS, CHIN, and NARDINI, Circuit Judges.
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`
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`This case involves claims brought by workers at Amazon’s
`JFK8 fulfillment center and members of the workers’ households in
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`Palmer v. Amazon
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`In the
`United States Court of Appeals
`For the Second Circuit
`
`
`August Term, 2020
`No. 20-3989-cv
`
`DERRICK PALMER, KENDIA MESIDOR, BENITA ROUSE, ALEXANDER
`ROUSE, BARBARA CHANDLER, LUIS PELLOT-CHANDLER, DEASAHNI
`BERNARD,
`Plaintiffs-Appellants,
`
`v.
`
`AMAZON.COM, INC., AMAZON.COM SERVICES, LLC,
`Defendants-Appellees.
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`
`
`
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`
`
`On Appeal from a Judgment of the United States
`District Court for the Eastern District of New York.
`
`
`ARGUED: MAY 19, 2021
`DECIDED: OCTOBER 18, 2022
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`Before: JACOBS, CHIN, and NARDINI, Circuit Judges.
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`
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`This case involves claims brought by workers at Amazon’s
`JFK8 fulfillment center and members of the workers’ households in
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`
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`connection with the COVID-19 policies, practices, and procedures at
`JFK8. In their amended complaint Plaintiffs allege causes of action for
`public nuisance, breach of the duty to protect the health and safety of
`employees under New York Labor Law (“NYLL”) § 200, violation of
`NYLL § 191 for failure to pay, on time and in full, COVID-19 sick leave
`under New York’s COVID-19 sick leave law, and injunctive relief
`against future violations of NYLL § 191. The United States District
`Court for the Eastern District of New York (Brian M. Cogan, Judge)
`dismissed Plaintiffs’ amended complaint, relying on the doctrine of
`primary jurisdiction, as well as alternative grounds, to dispose of the
`public nuisance and NYLL § 200 claims, and dismissing Plaintiffs’
`§ 191 claim for failure to state a claim for relief based on COVID-19
`sick leave payments not falling within § 191’s definition of “wages.”
`Plaintiffs now appeal. First, we reject Amazon’s contention that we
`should partially dismiss this appeal as moot. Second, we agree with
`Plaintiffs that the district court wrongly applied the primary
`jurisdiction doctrine to their public nuisance and NYLL § 200 claims.
`Ultimately, however, only their § 200 claim survives. Accordingly,
`we hold: (1) Plaintiffs’ public nuisance and NYLL § 200 claims are not
`moot; (2) the doctrine of primary jurisdiction does not apply to
`Plaintiffs’ public nuisance or NYLL § 200 claims; (3) Plaintiffs fail to
`state a claim for public nuisance under New York law because they
`do not allege a special injury; (4) Section 11 of the New York Workers’
`Compensation Law does not preclude injunctive relief under NYLL
`§ 200; and (5) COVID-19 sick leave payments are not “wages” under
`NYLL § 191. We therefore AFFIRM the district court’s dismissal of
`Plaintiffs’ public nuisance and NYLL § 191 claims; and we VACATE
`the district court’s dismissal of Plaintiffs’ NYLL § 200 claim and
`REMAND to the district court for further proceedings on that claim.
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`Judge Chin concurs in part and dissents in part in a separate
`opinion.
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`2
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`KARLA GILBRIDE, PUBLIC JUSTICE,
`Washington, DC (Emily Villano, Public
`Justice, Washington, DC, Juno Turner,
`David H. Seligman, and Valerie Collins,
`Towards Justice, Denver, CO, Beth Terrell,
`Terrell Marshall Law Group PLLC, Seattle,
`WA, on the brief), for Plaintiffs-Appellants.
`
`JASON C. SCHWARTZ, Gibson, Dunn &
`Crutcher LLP, Washington, DC (Lucas C.
`Townsend, Lochlan F. Shelfer, Gibson,
`Dunn & Crutcher LLP, Washington, DC,
`Avi Weitzman, Zainab N. Ahmad, Gibson,
`Dunn & Crutcher LLP, New York, NY, on
`the brief), for Defendants-Appellees.
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`
`
`WILLIAM J. NARDINI, Circuit Judge:
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`Workers at Amazon’s JFK8 fulfillment center and members of
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`their households (together, “Plaintiffs”) challenge workplace COVID-
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`19 policies, practices, and procedures at JFK8. Their suit against
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`Amazon.com, Inc. and Amazon.com Services LLC (together,
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`“Amazon”) in the United States District Court for the Eastern District
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`of New York (Brian M. Cogan, Judge) asserts causes of action under
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`3
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`New York law for public nuisance, breach of the duty to protect the
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`health and safety of employees under New York Labor Law
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`(“NYLL”) § 200, violation of NYLL § 191 for failure to pay, on time
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`and in full, COVID-19 sick leave under New York’s COVID-19 sick
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`leave law, and injunctive relief against future violations of NYLL
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`§ 191. Amazon moved to dismiss Plaintiffs’ amended complaint. In
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`a memorandum decision and order filed on November 2, 2020, the
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`district court granted Amazon’s motion. On November 3, 2020, the
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`district court entered judgment dismissing Plaintiffs’ amended
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`complaint.
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`The district court dismissed Plaintiffs’ public nuisance and
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`NYLL § 200 claims without prejudice under the primary jurisdiction
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`doctrine, concluding that the questions before the court turned on
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`factual issues requiring the technical and policy expertise of the
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`Occupational Safety and Health Administration (“OSHA”). In the
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`alternative, the district court concluded that Plaintiffs failed to allege
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`4
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`the special injury required to state a claim for public nuisance; that
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`New York’s Workers’ Compensation Law preempts suit under NYLL
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`§ 200 for injunctive relief for past harm; and that Plaintiffs failed to
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`allege a cognizable injury under NYLL § 200 based on the threat of
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`future harm. The district court then dismissed with prejudice
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`Plaintiffs’ NYLL § 191 claims, concluding that COVID-19 leave
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`payments are not “wages” as defined by § 191.
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`Plaintiffs now appeal the district court’s dismissal. This appeal
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`presents five key questions: (1) whether Plaintiffs’ public nuisance
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`and NYLL § 200 claims are moot because they are premised on New
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`York Forward, a state-issued plan with industry-specific guidance for
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`businesses that has since been rescinded; (2) whether the district court
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`correctly applied the primary jurisdiction doctrine in dismissing
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`Plaintiffs’ state law claims in deference to OSHA; (3) whether
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`Plaintiffs plausibly plead a special injury to support a public nuisance
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`claim against Amazon; (4) whether the New York Workers’
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`Compensation Law bars claims for injunctive relief under NYLL
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`§ 200; and (5) whether NYLL § 191 establishes how and when COVID-
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`19 sick leave pay must be paid.
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`First, we hold that Plaintiffs’ public nuisance and NYLL § 200
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`claims are not moot. These claims continue to present a live
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`controversy because they are not based solely on since-rescinded
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`guidance associated with the New York Forward plan. Second, we
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`hold that the doctrine of primary jurisdiction does not apply to
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`Plaintiffs’ public nuisance and NYLL § 200 claims. The issues before
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`us—whether Amazon created a public nuisance and whether
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`Amazon has breached its duty owed to Plaintiffs under NYLL § 200—
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`turn on questions of state tort law that are within the conventional
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`experience of judges. Although it is certainly within OSHA’s
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`competence to evaluate and create workplace health and safety
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`standards, OSHA’s expertise would not be a material aid here; the
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`issues before us are of a legal, not factual, nature and do not require
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`the kind of highly factual inquiry that would typically be aided by
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`OSHA’s expertise. Furthermore, OSHA has not promulgated the
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`kind of cross-industry COVID-19 workplace safety standards that
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`might be applicable here. Third, we hold that although Plaintiffs may
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`plead a harm that is different in degree from the community at large,
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`they fail to plead a harm that is different in kind, thereby failing to
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`allege the special injury required to state a claim for public nuisance
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`under New York law. Fourth, we hold that New York’s Workers’
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`Compensation Law is concerned only with claims for monetary relief
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`and leaves open claims against employers for injunctive relief under
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`NYLL § 200. Lastly, we hold that NYLL § 191 determines the pay
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`frequency for “wages” but not “benefits or supplemental wages.”
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`Because COVID-19 leave payments are not “wages” as defined by
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`NYLL § 191, Plaintiffs do not have a private cause of action under
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`§ 191 for Amazon’s alleged failure to comply with New York’s
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`COVID-19 sick leave law.
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`7
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`Accordingly, we AFFIRM the district court’s dismissal of
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`Plaintiffs’ public nuisance claim and NYLL § 191 claims for damages
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`and injunctive relief; and we VACATE the district court’s dismissal of
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`Plaintiffs’ NYLL § 200 claim seeking a declaratory judgment and
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`injunctive relief and REMAND to the district court for further
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`proceedings on this claim.
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`I.
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`Background
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`We assume the following facts, which are taken from Plaintiffs’
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`amended complaint, to be true for the purposes of this appeal.
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`Kolbasyuk v. Cap. Mgmt. Servs., LP, 918 F.3d 236, 238 n.1, 239 (2d Cir.
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`2019).
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`A. Amazon’s Operations at JFK8
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`The JFK8 fulfillment center (“JFK8”) is a facility operated by
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`Amazon in Staten Island, New York. JFK8 covers approximately
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`840,000 square feet and runs twenty-four hours per day, seven days
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`per week. On average, JFK8 employs 3,500 workers at any given time.
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`8
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`During peak seasons—the period around Amazon Prime Day in July
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`and the months leading up to Christmas—the workforce expands to
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`approximately 5,000. During the course of the pandemic, Amazon’s
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`national workforce expanded. As of April 2020, Amazon had hired
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`175,000 more workers to account for increased demand for online
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`shopping and product delivery.
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`Amazon tracks its employees’ activity through devices workers
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`use to scan items and packages. It uses this information to determine
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`whether employees are on task and to calculate an employee’s total
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`time off task (“TOT”) for each shift. An employee’s TOT in a shift is
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`not to exceed thirty minutes. TOT greater than thirty minutes results
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`in a written warning; TOT greater than sixty minutes results in a final
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`written warning; and TOT greater than 120 minutes results in an
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`automatic
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`termination.
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` Employees accumulate TOT during
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`bathroom breaks. An employee’s supervisor must re-code certain
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`TOT activities to prevent them from contributing to an employee’s
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`9
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`total TOT. Supervisors cannot re-code TOT for bathroom breaks, but
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`they can decide whether to discipline an employee for exceeding TOT
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`limits because of those breaks.
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`B. New York’s response to the COVID-19 pandemic
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`On March 1, 2020, New York announced its first confirmed case
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`of COVID-19. On March 20, 2020, then-New York Governor Andrew
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`Cuomo issued the New York State on PAUSE Executive Order. Exec.
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`Order No. 202.6 (N.Y. Mar. 22, 2020). The Order permitted essential
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`businesses—those providing products or services required to
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`maintain the health, safety, and welfare of New Yorkers—to remain
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`open. Amazon was deemed an essential business.
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`In May 2020, New York began a phased reopening of non-
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`essential businesses under the New York Forward plan. The plan
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`provided detailed, industry-specific guidance for essential businesses
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`and non-essential businesses that were permitted to reopen. The
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`guidance outlined “minimum requirements” businesses needed to
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`follow to remain open. JFK8 was subject to the New York Forward
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`Interim Guidance for the Wholesale Trade Sector.
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`In parallel to the Governor’s executive action, on March 18,
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`2020, the New York legislature responded to the pandemic by
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`enacting a COVID-19 sick leave law (the “Leave Law”). See 2020 N.Y.
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`Sess. Laws ch. 25 (McKinney). The Leave Law requires employers to
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`pay sick leave to employees who are “subject to a mandatory or
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`precautionary order of quarantine or isolation issued by the state of
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`New York, the department of health, local board of health, or any
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`governmental entity duly authorized to issue such order to COVID-
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`19.” Id. § 1.1(a). The amount of sick leave an employer must provide
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`varies based on its number of employees. Employers with a
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`workforce of one hundred or more must give at least fourteen days of
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`paid sick leave during any mandatory or precautionary order of
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`quarantine or isolation. Id. § 1.1(c).
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`11
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`C.
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`Plaintiffs’ allegations
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`Plaintiffs are warehouse workers at JFK8 and members of the
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`employees’ households. The employee plaintiffs are Derrick Palmer,
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`Benita Rouse, Barbara Chandler, and Deasahni Bernard. Their roles
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`all involve working close to other team members, and most of their
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`roles include touching items that other workers have handled. The
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`remaining plaintiffs (together, the “Non-Employee Plaintiffs”) live in
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`the households of the employee plaintiffs: Kendia Mesidor is in a
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`relationship with Derrick Palmer, and Alexander Rouse and Luis
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`Pellot-Chandler are the children of Benita Rouse and Barbara
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`Chandler, respectively. Chandler and Bernard contracted COVID-19
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`while employed at JFK8. Members of Chandler’s household
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`experienced symptoms of COVID-19, including her cousin who died
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`in April 2020.
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`As the pandemic hit New York in spring 2020, Plaintiffs became
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`concerned that Amazon was disregarding federal and state
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`guidance—namely, the New York Forward plan, the Leave Law, and
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`guidance from the federal government’s Centers for Disease Control
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`and Prevention (“CDC”)—and thereby creating an unsafe workplace
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`during a global pandemic.
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`Plaintiffs allege that Amazon deters workers from social
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`distancing, washing hands, and disinfecting workstations. Plaintiffs
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`point to a primary root cause: TOT requirements. Although Amazon
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`purportedly suspended TOT tracking requirements and productivity
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`feedback in March 2020, Plaintiffs allege that Amazon did not inform
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`workers of this change until an announcement on July 13, 2020.
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`According to Plaintiffs, even after Amazon’s July announcement,
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`managers continued to post TOT rate goals around the JFK8 facility
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`and to encourage workers to meet those goals. Plaintiffs assert that
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`Amazon’s mixed messages and lack of communication concerning
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`TOT and rate policies discourage workers from leaving their
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`workstations to wash their hands and from taking time to disinfect
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`13
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`their work area. Although workers in some departments can re-code
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`their time to indicate that they are “off task” to address a dangerous
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`condition, equipment malfunction, or injury, Amazon does not
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`provide the same re-coding mechanism for employees breaking to
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`wash hands, social distance, or sanitize workstations.
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`Next, Plaintiffs allege that Amazon failed to implement any
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`policy regarding social distancing. Only two of the breakrooms at
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`JFK8 are air-conditioned, concentrating workers in those rooms
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`during the hotter spring and summer months. Moreover, Amazon
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`changed its break policies, shifting from two twenty-minute breaks
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`plus lunch per shift to one thirty-five-minute break plus lunch per
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`shift. Plaintiffs allege this change thwarts workers’ ability to social
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`distance because more employees are in breakrooms, bathrooms, and
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`hallways at a given time.
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`Plaintiffs further allege that Amazon makes COVID-19 sick
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`leave inaccessible and fails to pay workers on time and in full under
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`14
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`the Leave Law, which encourages workers to forgo taking leave and
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`attend work while sick. A JFK8 worker who has symptoms of
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`COVID-19 or who is exposed to someone with the virus is required to
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`communicate with Amazon’s human resources (“HR”) team before
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`taking sick leave pursuant to the Leave Law. The process for learning
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`whether the employee can stay home is lengthy and confusing.
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`Plaintiffs recount situations in which they repeatedly called the HR
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`team but were unable to speak with one of its team members. Once
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`an employee finally learns that they must quarantine, Amazon fails
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`to timely provide the employee with full payment of COVID-19 sick
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`pay.
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`Plaintiffs also allege that Amazon’s handling of contact-tracing
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`fails to adequately track employees who test positive for COVID-19
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`and the coworkers with whom they came into close contact. Amazon
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`does not track the symptoms of workers who report exposure to
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`COVID-19, and it allegedly discourages workers from informing their
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`15
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`colleagues that they tested positive for the virus. Amazon also does
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`not ask COVID-19-positive employees with whom they have come
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`into close contact at JFK8. Amazon relies solely on surveillance
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`technology to make these contact determinations, which Plaintiffs
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`argue is inadequate.
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`Lastly, Plaintiffs allege that Amazon fails to deep clean JFK8
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`and close the facility, whether in whole or in part, after receiving
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`confirmation that a worker tested positive for COVID-19.
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`D. District court proceedings
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`On June 3, 2020, Plaintiffs filed a complaint in the U.S. District
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`Court for the Eastern District of New York asserting claims for public
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`nuisance, breach of duty under NYLL § 200, and violations of NYLL
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`§ 191 for failure to pay, on time and in full, COVID-19 sick leave.
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`Plaintiffs also filed a motion for a preliminary injunction, which they
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`subsequently withdrew after Amazon’s announcement on July 13,
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`2020, concerning changes to productivity policies.
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`On July 28, 2020, Plaintiffs filed an amended four-count
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`16
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`complaint expanding their NYLL § 191 claims into a statewide class
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`action and adding an additional named Plaintiff. In Count I, Plaintiffs
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`assert that Amazon is creating a public nuisance by failing to comply
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`with minimum basic health and safety standards at JFK8. Plaintiffs
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`seek injunctive relief and a declaratory judgment under 28 U.S.C.
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`§ 2201. In Count II, Plaintiffs allege that Amazon is breaching its duty
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`to protect the health and safety of its employees under NYLL § 200,
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`seeking injunctive relief and a declaratory judgment under 28 U.S.C.
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`§ 2201. In Count III, Plaintiffs seek damages for Amazon’s alleged
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`failure to timely pay earned COVID-19 sick leave under NYLL § 191.
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`In Count IV, Plaintiffs seek to enjoin Amazon from future failures to
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`pay earned COVID-19 sick leave on time under NYLL § 191.
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`On August 11, 2020, Amazon filed a motion to dismiss the
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`amended complaint under Federal Rules of Civil Procedure 12(b)(1)
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`and 12(b)(6). The district court granted Amazon’s motion on
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`November 2, 2020, and entered judgment the following day. Under
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`17
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`the doctrine of primary jurisdiction, the district court dismissed,
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`without prejudice, Plaintiffs’ public nuisance and NYLL § 200 claims.
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`The court concluded that because the relief Plaintiffs seek “involves
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`detailed aspects of how Amazon regulates its workplace,” Plaintiffs’
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`claims turned “on factual issues requiring [OSHA’s] technical and
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`policy expertise.” App’x at 137. The risk of inconsistent rulings
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`absent agency deferral and the advantages of applying the doctrine
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`also tipped in favor of invoking primary jurisdiction. In the
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`alternative, the district court concluded that Plaintiffs fail to state a
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`public nuisance claim because they do not allege special injury, that
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`Plaintiffs’ claim for past harm under NYLL § 200 is preempted by
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`New York’s Workers’ Compensation Law, and that Plaintiffs’ NYLL
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`§ 200 claim based on the threat of future harm fails to allege a
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`cognizable injury. As to Plaintiffs’ NYLL § 191 claims, the district
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`court concluded that Plaintiffs cannot state a claim for relief because
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`COVID-19 sick leave payments are not “wages” under § 191.
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`18
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`On November 24, 2020, Plaintiffs filed a timely notice of appeal.
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`II. Discussion
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`We review de novo a district court’s grant of a motion to dismiss
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`under Rules 12(b)(1) and 12(b)(6), accepting the allegations in the
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`complaint as true and drawing all reasonable inferences in favor of
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`the plaintiff. Atterbury v. U.S. Marshals Serv., 805 F.3d 398, 403 (2d Cir.
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`2015); see also Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). When a district
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`court invokes the primary jurisdiction doctrine, our standard of
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`review is likewise de novo. Nat’l Commc’ns Ass’n, Inc. v. Am. Tel. & Tel.
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`Co., 46 F.3d 220, 222 (2d Cir. 1995) [hereinafter AT&T Co.] (“[T]he
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`standard of review [of a dismissal on the basis of the primary
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`jurisdiction doctrine] is essentially de novo.” (citation omitted)); see also
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`Seneca Nation of Indians v. New York, 988 F.3d 618, 629 (2d Cir. 2021)
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`(“We review a district court’s decision not to apply the doctrine of
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`primary jurisdiction de novo.”); Ellis v. Tribune Television Co., 443 F.3d
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`71, 83 n.14 (2d Cir. 2006) (same).
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`19
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`On appeal, Plaintiffs ask us to vacate the grant of Amazon’s
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`motion to dismiss, challenging the district court’s conclusions that:
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`deference is due to OSHA under the primary jurisdiction doctrine;
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`Plaintiffs fail to plausibly allege special harm sufficient to state a claim
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`for public nuisance; the claim under NYLL § 200 is preempted by
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`New York’s Workers’ Compensation Law; and COVID-19 sick leave
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`payments do not constitute “wages” as defined by NYLL § 191.
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`Amazon moves for partial dismissal of Plaintiffs’ appeal, arguing that
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`Plaintiffs’ public nuisance and NYLL § 200 claims are moot because
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`New York has since rescinded the guidance upon which these claims
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`rely.
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`As a preliminary matter, we deny Amazon’s motion for partial
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`dismissal. Plaintiffs’ public nuisance and NYLL § 200 claims are not
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`moot because these claims do not rely solely upon rescinded New
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`York guidance, and it is still possible for a court to grant Plaintiffs
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`injunctive and declaratory relief if they are the prevailing party.
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`20
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`Turning to the merits, we agree with Plaintiffs that the district court
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`wrongly applied the primary jurisdiction doctrine to their public
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`nuisance and NYLL § 200 claims. But ultimately, as we explain below,
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`only Plaintiffs’ NYLL § 200 claim survives dismissal.
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`A.
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`Plaintiffs’ public nuisance and NYLL § 200 claims are
`not moot
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`As a threshold matter, we must consider Amazon’s motion for
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`partial dismissal of the appeal on mootness grounds. “[M]ootness
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`doctrine ensures that [a] litigant’s interest in the outcome continues
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`to exist throughout the life of the lawsuit.” Conn. Citizens Def. League,
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`Inc. v. Lamont, 6 F.4th 439, 444 (2d Cir. 2021) (internal quotation marks
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`omitted). If because of changed circumstances “a case that presented
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`an actual redressable injury at the time it was filed ceases to involve
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`such an injury, it ceases to fall within a federal court’s Article III
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`subject matter jurisdiction and must be dismissed for mootness.” Id.
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`(internal quotation marks omitted). “A case becomes moot when it is
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`impossible for a court to grant any effectual relief whatever to the
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`21
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`prevailing party.” Id. (internal quotation marks omitted).
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`Amazon argues that Plaintiffs’ public nuisance and NYLL § 200
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`claims are moot because the guidance on which these claims rely, the
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`New York Forward plan, has since been rescinded.1 We read the
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`amended complaint differently. Contrary to Amazon’s argument,
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`Plaintiffs’ claims do not rely solely on alleged violations of New York
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`Forward guidance. Instead, Plaintiffs use the New York Forward
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`guidance as one of several guideposts—alongside, for example, the
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`Leave Law and CDC guidance—for establishing the minimum duty
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`Amazon owes to Plaintiffs with respect to worker health and safety at
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`JFK8 in the face of COVID-19.
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`Accordingly, a live controversy remains. In particular,
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`rescission of the New York Forward guidance did not resolve
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`1 As of June 15, 2021, New York lifted most COVID-19 restrictions,
`including most New York Forward guidance. New York State, New York Forward,
`Archived Industry Guidance, https://forward.ny.gov/archived-industry-guidance
`(last visited October 14, 2022) (explaining how the “archived New York Forward
`industry reopening guidance documents are no longer mandatory”).
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`22
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`whether Amazon “provide[s] reasonable and adequate protection to
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`the lives, health and safety” of its employees in conformity with
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`NYLL § 200,2 App’x at 120, nor did it resolve whether Amazon has
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`created a public nuisance. Even if Plaintiffs now lack their preferred
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`guidepost to establish Amazon’s minimum duty to its employees,
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`“[a]s long as [Plaintiffs] have a concrete interest in the outcome of the
`
`litigation, the case is not moot.” Firefighter’s Local 1784 v. Stotts, 467
`
`U.S. 561, 568 (1984); see New Eng. Health Care Emps. Union, Dist. 1199
`
`v. Mount Sinai Hosp., 65 F.3d 1024, 1029 (2d Cir. 1995) (“[S]o long as
`
`
`2 Amazon also points to a May 10, 2022, decision of the First Department
`of the Appellate Division of the New York Supreme Court to argue that Plaintiffs’
`NYLL § 200 claim should be dismissed as moot. See Appellees’ Rule 28(j) Ltr. (May
`12, 2022). There, the First Department concluded that the New York Attorney
`General’s NYLL § 200 claim “seeking a permanent injunction requiring Amazon
`to undertake policies consistent with COVID-19 workplace guidelines issued by
`the State must be dismissed as moot, as the State has withdrawn the public health
`guidance that the claim seeks to enforce, including by prospective injunctive
`relief.” New York v. Amazon.com, 205 A.D.3d 485, 487 (1st Dep’t 2022). That
`decision does not alter our conclusion here. At bottom, the New York Attorney
`General in the New York case specifically sought to enforce guidance that is no
`longer in place. In comparison, as we explain above, Plaintiffs do not seek to
`enforce the now-withdrawn New York guidance. Rather, Plaintiffs rely upon New
`York guidance as one of several guideposts to argue that Amazon is breaching the
`duty of care it owes to JFK8 workers under NYLL § 200.
`
`
`
`23
`
`
`
`the appellant retains some interest in the case, so that a decision in its
`
`favor will inure to its benefit, its appeal is not moot.”). Having
`
`considered the remainder of Amazon’s justiciability arguments, we
`
`find them meritless and turn to the substance of Plaintiffs’ appeal.
`
`B.
`
`The district court incorrectly applied the primary
`jurisdiction doctrine in dismissing Plaintiffs’ state law
`claims in deference to OSHA
`
`The
`
`federal
`
`courts have
`
`a
`
`“virtually unflagging
`
`obligation . . . to exercise the jurisdiction given them.” Tassy v.
`
`Brunswick Hosp. Ctr., Inc., 296 F.3d 65, 73 (2d Cir. 2002) (quoting Colo.
`
`River Water Conservation Dist. v. United States, 424 U.S. 800, 817 (1976)).
`
`Here, we must address a “relatively narrow” exception to this
`
`obligation: the doctrine of primary jurisdiction. Goya Foods, Inc. v.
`
`Tropicana Prods., Inc., 846 F.2d 848, 851 (2d Cir. 1988). The doctrine is
`
`a prudential one, Schiller v. Tower Semiconductor Ltd., 449 F.3d 286,
`
`294–95 (2d Cir. 2006), fashioned by the courts, TCG N.Y., Inc. v. City of
`
`White Plains, 305 F.3d 67, 74 (2d Cir. 2002), concerned primarily with
`
`“promoting relationships between the courts and [the] administrative
`
`
`
`24
`
`
`
`agencies charged with particular regulatory duties,” Ellis, 443 F.3d at
`
`81 (quoting United States v. W. Pac. R.R. Co., 352 U.S. 59, 63 (1956)),
`
`and with ensuring the two “do not work at cross-purposes,” id.
`
`(internal quotation marks omitted). The doctrine of primary
`
`jurisdiction “applies where a claim is originally cognizable in the
`
`courts, but enforcement of the claim requires, or is materially aided
`
`by, the resolution of threshold issues, usually of a factual nature,
`
`which are placed within the special competence of the administrative
`
`body.” Golden Hill Paugussett Tribe of Indians v. Weicker, 39 F.3d 51,
`
`58–59 (2d Cir. 1994).
`
`For a court to invoke the primary jurisdiction doctrine, it must
`
`determine that the agency, not the courts, should have the “initial
`
`decisionmaking responsibility.” Ellis, 443 F.3d at 81 (emphasis
`
`added) (internal quotation marks omitted). A court’s application of
`
`the primary jurisdiction doctrine thus “does not [necessarily] deprive
`
`the court of jurisdiction.” Reiter v. Cooper, 507 U.S. 258, 268–69 (1993).
`
`
`
`25
`
`
`
`Rather, once a court determines that the doctrine applies, it has
`
`discretion either: (1) to retain jurisdiction or (2) to dismiss the case
`
`without prejudice. Id.
`
`If the court retains jurisdiction, the case is “held pending the
`
`conclusion of an appropriate administrative proceeding.” Gen. Am.
`
`Tank Car Corp. v. El Dorado T. Co., 308 U.S. 422, 433 (1940); see W. Pac.
`
`R.R. Co., 352 U.S. at 64 (“[T]he judicial process is suspended pending
`
`referral of such issues to the administrative body for its views.”). In
`
`other words, the case is “stayed so as to give the plaintiff a reasonable
`
`opportunity within which to apply to the [agency] for a ruling.”
`
`Mitchell Coal & Coke Co. v. Pa. R.R. Co., 230 U.S. 247, 267 (1913); see also
`
`Reiter, 507 U.S. at 268 n.3 (observing that “‘[r]eferral’ is sometimes
`
`loosely described as a process whereby a court refers an issue to an
`
`agency,” and clarifying that the Supreme Court’s decision in Mitchell
`
`Coal “spelled out the actual procedure contemplated [in] holding that
`
`further action by the district court should be stayed so as to give the
`
`
`
`26
`
`
`
`plaintiff a reasonable opportunity within which to apply to the
`
`[agency] for a ruling as to the reasonableness of the practice” (internal
`
`quotation marks omitted)).
`
`A court in its discretion may choose to dismiss the case without
`
`prejudice—but only “if
`
`the parties would not be unfairly
`
`disadvantaged.” Reiter, 507 U.S. at 268. To determine whether a party
`
`will be unfairly disadvantaged, a court can look to the relief the party
`
`is seeking. For example, in Carnation Co. v. Pacific Westbound
`
`Conference, the Supreme Court distinguished between a plaintiff
`
`seeking injunctive relief and a plaintiff seeking damages. 383 U.S. 213,
`
`222–23 (1966). There, the Supreme Court noted how, unlike a suit for
`
`injunctive relief from continuing conduct—a suit that “could easily be
`
`reinstituted if and when the [agency] determined” the questions at
`
`issue—a “damage[s] action for past conduct cannot be easily
`
`reinstated at a later time” because “[s]uch claims are subject to the
`
`Statute of Limitations.” Id. Our Court applied these principles in
`
`
`
`27
`
`
`
`Mathirampuzha v. Potter, where we vacated the district court’s
`
`dismissal and remanded with instructions to stay the proceedings
`
`pending a final determination by the administrative agency because
`
`dismissing the case presented “a significant danger of unfair
`
`disadvantage . . . inasmuch as the plaintiff’s claim [was] subject to a
`
`statute of limitations.” 548 F.3d 70, 84–85 (2d Cir. 2008).
`
`When determining whether to apply the doctrine of primary
`
`jurisdiction, a court must look to “whether the reasons for the
`
`existence of the doctrine are present and whether the purposes it
`
`serves will be aided by its application in the particular litigation.” W.
`
`Pac. R.R. Co., 352 U.S. at 64. These reasons and purposes are two-fold.
`
`Tassy, 296 F.3d at 68. First, the doctrine seeks to foster “uniformity
`
`and consistency in the regulation of business entrusted to a particular
`
`agency.” Goya Foods, 846 F.2d at 851 (alteration omitted) (quoting
`
`Nader v. Allegheny Airlines, Inc., 426 U.S. 290, 303–04 (1976)); see Tex. &
`
`Pac. Ry. Co. v. Abilene Cotton Oil Co., 204 U.S. 426, 440 (1907)
`
`
`
`28
`
`
`
`(concluding that “without previous action by the [agency], power
`
`might be exerted by courts and juries generally to determine the
`
`reasonableness of an established rate, [and] it would follow that
`
`unless all courts reached an identical conclusion a uniform standard
`
`of rates in the future would be impossible”). Second, the doctrine
`
`recognizes that, for certain matters, “‘the expert and specialized
`
`knowledge of the agencies’ should be ascertained before judicial
`
`consideration of the legal claim.” Goya Foods, 846 F.2d at 851 (quoting
`
`W. Pac. R.R., 352 U.S. at 64); see Great N. Ry. Co. v. Merchs.’ Elevator Co.,
`
`259 U.S. 285, 291 (1922) (invoking primary jurisdiction because “the
`
`inquiry is essentially one of fact and of discretion in technical
`
`matters”).
`
`With the doctrine’s reasons and purposes in mind, we turn to
`
`whether deferring to OSHA here is appropriate. Although “[n]o fixed
`
`formula exists for applying the doctrine of primary jurisdiction,” Ellis,
`
`443 F.3d at 82 (quoting W. Pac. R.R. Co., 352 U.S. at 64), and we
`
`
`
`29
`
`
`
`generally conduct our analysis on a “case-by-case basis,” Gen. Elec.
`
`Co. v. MV Nedlloyd, 817 F.2d 1022, 1026 (2d Cir. 1987), in Ellis v. Tribune
`
`Television Co., our Court highlighted four factors—which we ref
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