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Public Citizen Health Research Group v. Alexander Acosta

United States District Court, District of Columbia

December 12, 2018

PUBLIC CITIZEN HEALTH RESEARCH GROUP et al., Plaintiffs,
v.
ALEXANDER ACOSTA et al., Defendants.

          MEMORANDUM OPINION AND ORDER

          TIMOTHY J. KELLY, United States District Judge.

         As part of its effort to improve the collection of work-related injury data, the Occupational Safety and Health Administration (“OSHA”), an agency of the Department of Labor, requires qualifying employers to record work-related injuries and illnesses on a set of standardized forms. Initially, OSHA only occasionally collected these forms from employers, either during on-site inspections or as part of broader industry surveys. But in May 2016, OSHA issued a new rule requiring employers to submit them-three in total-electronically each year. In May 2018, however, and after the first filing deadline had passed, OSHA announced employers were only required to submit one of the three forms while it considered revising or rescinding the existing rule, citing privacy and waste concerns. In fact, OSHA stated that, until it completed its review, it would not accept two of the three forms from employers at all.

         Plaintiffs in this action, three public-health advocacy groups, view these forms as valuable sources of workplace health data, and they allege that they intended to use that data in their research and advocacy efforts once OSHA collected it. Plaintiffs commenced this action after OSHA announced that it was suspending the rule while it engaged in notice-and-comment rulemaking, and that it would not accept two of the forms during that time. Their complaint alleges that OSHA's conduct violated the Administrative Procedure Act (“APA”), 5 U.S.C. § 500 et seq, and thus unlawfully deprived them of access to an important source of workplace health data. See ECF No. 1 (“Compl.”). They seek declaratory and injunctive relief requiring OSHA to lift its suspension of the filing deadlines and to accept all three forms.

         Over six weeks after filing their complaint, Plaintiffs filed a motion for preliminary injunction. ECF No. 7 (“PI Mot.”). Plaintiffs did not request a hearing on their motion. While that motion was pending, Defendants filed a motion to dismiss the complaint for lack of jurisdiction, on the grounds that Plaintiffs lack standing, and for failure to state a claim, on the ground that the challenged conduct was an exercise of discretion not subject to judicial review under the APA. ECF No. 13 (“MTD”).

         The Court finds that Plaintiffs have standing to proceed with their claims and that the challenged agency conduct was not simply an exercise of enforcement discretion, but rather a complete suspension of a regulatory deadline subject to review. As a result, the Court will deny Defendants' motion to dismiss. Nonetheless, the Court finds that Plaintiffs have not demonstrated that they will suffer irreparable harm absent preliminary injunctive relief, and it will therefore deny Plaintiffs' motion for a preliminary injunction as well.[1]

         I. Background

         A. The Electronic Reporting Rule

         Under the Occupational Safety and Health Act, 29 U.S.C. § 651 et seq (the “OSH Act” or “Act”), the Secretary of Labor is authorized, among other things, to promulgate regulations requiring employers to “make, keep and preserve, and make available to the Secretary, ” occupational health records. Id. § 657(c)(1); see also Id. § 657(c)(2) (authorizing the Secretary to issue regulations requiring employers to “maintain accurate records of, and to make periodic reports on, work-related deaths, injuries and illnesses”). The Act also provides that, “[i]n order to further the purposes of this chapter, the Secretary . . . shall develop and maintain an effective program of collection, compilation, and analysis of occupational safety and health statistics.” Id. § 673(a). Pursuant to that authority, OSHA requires employers with more than 10 employees to use a set of standardized forms when recording workplace injuries and illnesses-Form 300 to generate a log of all work-related injuries or illnesses, Form 301 to generate an incident report for each individual case, and Form 300A to prepare an annual summary derived from the information collected on the log. See 29 C.F.R. §§ 1904.1(a), 1904.29. Initially, OSHA did not require employers to submit these forms, and it only collected them on an ad hoc basis, either during inspections of individual workplace sites or through industry-specific surveys. See Improve Tracking of Workplace Injuries and Illnesses, 81 Fed. Reg. 29, 624, 29, 627 (May 12, 2016). But in May 2016, OSHA issued a new rule requiring certain employers to submit the three forms electronically on an annual basis (the “Electronic Filing Rule” or “Rule”). See 29 C.F.R. § 1904.41.

         Under the Electronic Filing Rule, employers with 250 or more employees are required to electronically submit to OSHA Forms 300, 300A, and 301 each year, and employers in certain industries with 20 or more employees must electronically submit Form 300A. Id. The Rule, however, was set to come into full effect progressively over the course of several years. For the first year, all covered employers were required to submit only the summary Form 300A for calendar-year 2016 by July 1, 2017. See Id. § 1904.41(c); Improve Tracking of Workplace Injuries and Illnesses: Delay of Compliance Date, 82 Fed. Reg. 55, 761 (Nov. 24, 2017). For the following year, covered employers were required to submit their applicable forms-all three for employers with 250 or more employees, but only Form 300A for employers with 20 or more but less than 250 employees-for calendar-year 2017 by July 1, 2018. 29 C.F.R. § 1904.41(c). And then beginning in 2019, covered employers were required to submit their applicable forms for the preceding calendar year by March 2. Id.

         On June 28, 2017, shortly before the first deadline, OSHA issued a notice of proposed rulemaking to delay the initial filing deadline. See Improve Tracking of Workplace Injuries and Illnesses: Proposed Delay of Compliance Date, 82 Fed. Reg. 29, 261 (June 28, 2017). And on November 24, 2017, OSHA published a final rule delaying that first filing deadline until December 15, 2017. 82 Fed. Reg. 55, 761. Then, in May 2018-after the first filing deadline had passed-OSHA posted the following announcement on its website:

Covered establishments with 250 or more employees are only required to provide their 2017 Form 300A summary data. OSHA is not accepting Form 300 and 301 information at this time. OSHA announced that it will issue a notice of proposed rulemaking (NPRM) to reconsider, revise, or remove provisions of the “Improve Tracking of Workplace Injuries and Illnesses” final rule, including the collection of the Forms 300/301 data. The Agency is currently drafting that NPRM and will seek comment on those provisions.

Compl. ¶ 20 (quoting OSHA, Final Rule Issued to Improve Tracking of Workplace Injuries and Illnesses, https://osha.gov/recordkeeping/finalrule/index.html) [hereinafter OSHA, May 2018 Announcement]. On July 30, OSHA issued the notice of proposed rulemaking to rescind the electronic filing requirements for Forms 300 and 301. See Tracking of Workplace Injuries and Illnesses, 83 Fed. Reg. 36, 494 (proposed July 30, 2018). As part of that notice, OSHA stated that although “the initial deadline for electronic submission of information from OSHA Forms 300 and 301 by covered establishments with 250 or more employees was July 1, 2018[, ]. . . OSHA will not enforce this deadline without further notice while this rulemaking is underway.” Id. at 36, 496. The public comment period for that proposed rescission closed on September 28, 2018. See Id. at 36, 494.

         B. Plaintiffs' Lawsuit

         Plaintiffs to this action are three organizations engaged in research, education, and advocacy on matters of public health, including issues of workplace health and safety. Public Citizen Health Research Group (“PCHRG”) “promotes research-based, system-wide changes in health care policy, including in the area of occupational health, and advocates for improved safety standards at work sites.” Compl. ¶ 5. PCHRG alleges that it regularly uses information reported to government agencies, including publicly available data from OSHA, to analyze public health problems. See Id. American Public Health Association (“APHA”), a public health advocacy group and professional association, “has an Occupational Health and Safety Section that advocates for the health, safety and well-being of workers, families, communities, and the environment.” Id. ¶ 6. Like PCHRG, APHA states that its members regularly rely on information reported to government agencies and made available to the public. See Id. The Council of State and Territorial Epidemiologists (“CSTE”) “is an organization of member states and territories representing public health epidemiologists, ” and it likewise alleges that its members use information reported to government agencies to track the incidence of work-related injuries and diseases. Id. ¶ 7. PCHRG, APHA, and CSTE (collectively, “Plaintiffs”) allege that they each “rely on the type of data required to be reported and made publicly available under the [Electronic Reporting] Rule and [the Freedom of Information Act] to effectively track, investigate, and work to prevent work-related injury and disease in the United States.” PI Mot. at 6. And they specifically allege that they intended to use the information submitted by covered employers under the Electronic Reporting Rule to conduct research on occupational health. See Compl. ¶¶ 5-7; see also Carome Decl. ¶ 3; Benjamin Decl. ¶ 3; Harrison Decl. ¶¶ 4-5.

         On July 25, 2018, Plaintiffs commenced this action, alleging that OSHA's partial suspension of the Electronic Reporting Rule violates the APA and naming as defendants the Secretary of Labor in his official capacity, the Department of Labor, and OSHA (collectively, “Defendants”). See Compl. Plaintiffs bring two claims under the APA. First, they allege that “[b]y failing to engage in notice-and-comment rulemaking before suspending the July 1, 2018[] deadline, OSHA failed to observe procedures required by law, in contravention of the APA.” Id. ¶ 26. And second, they contend that “OSHA's suspension of the requirement that covered establishments submit their 2017 Forms 300 and 301 by July 1, 2018, is arbitrary, capricious, or an abuse of discretion, in contravention of the APA.” Id. ¶ 29. Plaintiffs seek a declaratory judgment finding OSHA's actions in violation of the APA, a permanent injunction requiring Defendants to “implement and enforce all the requirements of the Electronic Reporting Rule, ” and an order requiring Defendants to accept submissions under the Rule within 30 days. Compl. at 10.

         On September 7, 2018, six weeks after filing their complaint, Plaintiffs filed a motion for a preliminary injunction. They did not, however, request a hearing on their motion. In addition to elaborating on their claims under the APA, Plaintiffs describe the harm that they are allegedly suffering as a result of Defendants' conduct. Specifically, they maintain that when OSHA decided to suspend the submission deadline and to refuse to accept any submissions of Forms 300 and 301, it deprived them of “access to an important source of timely injury and illness information, which will make it more difficult for each of them and their members to analyze the causes of workplace injuries and illnesses and work toward preventing them.” PI Mot. at 6.

         On October 29, 2018, with Plaintiffs' motion for a preliminary injunction pending, Defendants filed a motion to dismiss the complaint under Federal Rule of Civil Procedure 12(b)(1) and (b)(6), arguing that Plaintiffs do not have standing to bring their claims and that they seek to challenge nonjusticiable exercises of OSHA's enforcement discretion. See MTD at 1-2, 7. Defendants contend first that Plaintiffs lack Article III standing because the relief that they seek-an injunction requiring OSHA to lift the suspension of the Electronic Reporting Rule and accept forms submitted under the Rule-is not likely to redress the injury they have alleged. Specifically, they argue that OSHA has no intention of making the information it would collect under the Rule publicly available and that the information would be exempt from disclosure under the Freedom of Information Act (“FOIA”) even if Plaintiffs requested access to it. See Id. at 10-12. Alternatively, Defendants argue that even if Plaintiffs have standing, their complaint must nonetheless be dismissed for failure to state a claim because the conduct Plaintiffs seek to challenge constitutes an exercise of OSHA's enforcement discretion and is therefore unreviewable under the APA, 5 U.S.C. § 701(a)(2). See Id. at 12-16.[2]

         Both Plaintiffs' motion for preliminary injunctive relief and Defendants' motion to dismiss are ripe for review. As Defendants' motion could potentially dispose of the entire action, the Court will address that motion first.

         II. Motion to Dismiss

         A. Legal Standard

         A motion to dismiss under Federal Rule of Civil Procedure 12(b)(1) “presents a threshold challenge to the court's jurisdiction.” Haase v. Sessions, 835 F.2d 902, 906 (D.C. Cir. 1987). As federal courts are courts of limited jurisdiction, it is “presumed that a cause lies outside this limited jurisdiction.” Kokkonen v. Guardian Life Ins. Co., 511 U.S. 375, 377 (1994). Thus, when faced with a motion to dismiss under Rule 12(b)(1), “the plaintiff bears the burden of establishing jurisdiction by a preponderance of the evidence.” Maron v. U.S. Capitol Police Bd., 820 F.Supp.2d 48, 53 (D.D.C. 2011) (citing Lujan v. Defenders of Wildlife, 504 U.S. 555, 561 (1992)). In reviewing such a motion, while the Court is not limited to the allegations in the complaint and may consider materials outside the pleadings, the Court must “accept all of the factual allegations in [the] complaint as true.” Jerome Stevens Pharm., Inc. v. Food & Drug Admin., 402 F.3d 1249, 1253-55 (D.C. Cir. 2005) (alteration in original) (quoting United States v. Gaubert, 499 U.S. 315, 327 (1991)).

         A party may also move to dismiss a complaint under Federal Rule of Civil Procedure 12(b)(6) on the ground that it “fail[s] to state a claim upon which relief can be granted.” “To survive a motion to dismiss [under Rule 12(b)(6)], a complaint must contain sufficient factual matter, accepted as true, to ‘state a claim to relief that is plausible on its face.'” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)). Unlike consideration of a motion under 12(b)(1), “[i]n determining whether a complaint states a claim, the court may [only] consider the facts alleged in the complaint, documents attached thereto or incorporated therein, and matters of which it may take judicial notice.” Stewart v. Nat'l Educ. Ass'n, 471 F.3d 169, 173 (D.C. Cir. 2006). Though “a court must accept as true all of the allegations contained in a complaint, ” “[t]hreadbare recitals of the elements of a cause of action, supported by mere conclusory statements, do not suffice.” Iqbal, 556 U.S. at 678 (citing Twombly, 550 U.S. at 556).

         B. Analysis

         1. ...


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