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Appeals Court to Decide if Federal Judges Can Order OSHA to Act

Sept. 6, 2022, 5:00 PM

A case over OSHA’s failure to cite a Pennsylvania-based meat processing plant for alleged Covid-19 health and safety violations is testing how far workers can go to address imminent dangers in the workplace.

Wednesday’s oral arguments in the US Court of Appeals for the Third Circuit will be the first time a federal appeals court has considered whether the law that created the US Occupational Safety and Health Administration also gives federal judges the power to intervene when workers seek judicial aid because they don’t believe OSHA is adequately protecting them.

Section 13(d) of the Occupational Safety and Health Act of 1970 says if OSHA “arbitrarily or capriciously fails to seek relief” for an “imminent danger” employees can ask a district judge to compel the agency to act.

Here, a federal district judge ruled that because OSHA hadn’t found an imminent danger, workers at Maid-Rite Specialty Foods Inc. couldn’t petition the court for relief.

“This case is about whether workers have any meaningful right to protect themselves from some of the most significant workplace dangers,” attorney David Muraskin of Public Justice P.C., who will argue on behalf of the workers at the Third Circuit, told Bloomberg Law.

The US Solicitor of Labor and OSHA didn’t respond to requests for comment on the case.

Covid Safety Claims

In response to Covid-19 complaints in 2020, OSHA twice inspected Maid-Rite’s Dunmore, Pa., plant but didn’t issue Covid-related citations.

Because of OSHA’s perceived inaction, workers represented by three advocacy groups—Public Justice P.C., Justice at Work, and Towards Justice—petitioned the US District Court for the Middle District of Pennsylvania in July 2020, citing Section 13(d) of the OSH Act.

The Trump administration OSHA fought the petition, and the lower court sided with the agency.

The workers and interest groups appealed to the Third Circuit, where the Biden administration OSHA continues to oppose the workers’ initiative.

Failure to Act

A host of unions and private attorneys representing workers have tried and failed to convince federal district and appeals courts judges to order OSHA to take specific actions in response to the Covid-19 pandemic.

Most recently, the US Court of Appeals for the District of Columbia Circuit Aug. 26 ruled against unions that asked the court to require OSHA to issue a permanent Covid health-care standard within 30 days and restart enforcement of the agency’s emergency temporary standard.

But those arguments didn’t involve the specific OSH Act provisions involved in the Maid-Rite case before the Third Circuit, Muraskin said.

No previous lawsuit has sought to enforce those provisions, and “it’s a question that has been open since the OSH Act was passed and has never before been resolved,” the attorney said.

Time Limit Issue

A district judge can’t order OSHA to act if an inspection was more than six months old—the time limit for OSHA to issue a citation once a violation is found—Labor Department attorneys wrote in a brief to the Third Circuit.

If the workers continue to believe an imminent danger exists, they should make a new complaint to OSHA, the brief said.

But a six-month limit would enable OSHA to quash a petition by dragging its feet on a citation decision, the workers said in their brief.

The OSH Act’s provision for “further relief” allows for action beyond OSHA inspections and citations, the workers added. For example, the judge could require OSHA to provide the workers with an earlier inspection case file and information from both OSHA and the employer that led to the decision not to cite the company, they said.

Judges Thomas Hardiman, Kent Jordan, and D. Brooks Smith are scheduled to hear the case Wednesday.

The case is Jane Doe I v. Walsh, 3d Cir., No. 21-2057, oral argument scheduled 9/7/22.

To contact the reporter on this story: Bruce Rolfsen in Washington at BRolfsen@bloomberglaw.com

To contact the editors responsible for this story: Laura D. Francis at lfrancis@bloomberglaw.com; Martha Mueller Neff at mmuellerneff@bloomberglaw.com