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Public Citizen Health Research Group v. Pizzella

United States District Court, District of Columbia

September 26, 2019

PATRICK PIZZELLA et al., Defendants.



         In May 2018, the Occupational Safety and Health Administration (OSHA) posted an announcement on its website informing certain employers that they were no longer required to comply with a workplace-injury data reporting regulation OSHA had promulgated several years earlier. Under the regulation in question, covered employers had to provide the information to OHSA electronically on a set of standard forms. At that time, the first deadline to provide all the relevant data was approaching on July 1, 2018. OSHA’s announcement also informed employers that it intended to issue a notice of proposed rulemaking to permanently rescind the requirement. Plaintiffs, several public-health advocacy groups that intended to use the data collected under the regulation, promptly sued, challenging OSHA’s action as an unlawful suspension of the regulation that violated the Administrative Procedure Act.

         Defendants moved to dismiss the complaint, arguing that the advocacy groups lacked standing to challenge the suspension and that, in any event, the announcement was merely a policy statement about their exercise of enforcement discretion not subject to judicial review. The Court rejected those arguments and denied the motion to dismiss, and soon after Plaintiffs moved for summary judgment.

         In January 2019, and before Plaintiffs’ motion was fully briefed, OSHA promulgated the new rule rescinding the electronic submission requirements from the 2016 regulation. And Plaintiffs promptly challenged that rule in a separate suit. Accordingly, in response to Plaintiffs’ motion for summary judgment, OSHA moved to stay this case pending the resolution of the case challenging the final rule. Though neither party asserted mootness, the Court ordered supplemental briefing addressing whether it still has jurisdiction over Plaintiffs’ claims given the later rulemaking. Upon consideration of those filings and the entire record, the Court holds that it does not, and thus it will dismiss this action for lack of subject-matter jurisdiction.

         I. Factual and Procedural Background

         The Court detailed the background of this case and the regulations at issue in its prior opinion, Public Citizen Health Research Group. v. Acosta, 363 F.Supp.3d 1 (D.D.C. 2018), and thus it will only recount the salient points here.[1]

         Under existing OSHA regulations, covered employers must record workplace injuries and illnesses on a set of three standardized forms-Form 301 to report individual incidents, Form 300 to record all work-related injuries on a log, and Form 300A to prepare an annual summary derived from the log. See 29 C.F.R. §§ 1904.1(a), 1904.29. To aid enforcement efforts and improve workplace safety, OSHA promulgated a rule (the “Electronic Reporting Rule”) in May 2016 requiring certain employers to submit these forms to OSHA electronically each year. See Improve Tracking of Workplace Injuries and Illnesses, 81 Fed. Reg. 29, 624, 29, 627 (May 12, 2016). During the first year the rule was in effect, covered employers only had to submit Form 300A. By July 1, 2018, however, covered employers had to submit all three forms for calendar year 2017. See Pub. Citizen, 363 F.Supp.3d at 7-8.

         But in May 2018, OSHA published 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.

ECF No. 1 (“Compl.”) ¶ 20; see also ECF No. 32 (“Ans.”) ¶ 20 (admitting that announcement was posted on website in May 2018).

         Plaintiffs in this action-Public Citizen Health Research Group, the American Public Health Association, and the Council of State and Territorial Epidemiologists-are organizations engaged in research, education, and advocacy on public health issues, including workplace health and safety. Pub. Citizen, 363 F.Supp.3d at 8–9. They allege that they intended to use the information submitted by covered employers under the Electronic Reporting Rule for those aims. Id. After OSHA published the May 2018 announcement, Plaintiffs sued Patrick Pizzella[2] in his official capacity as Acting Secretary of Labor, the Department of Labor, and OSHA (collectively, “Defendants”), bringing claims alleging that OSHA violated the Administrative Procedure Act (APA), 5 U.S.C. § 500 et seq., and seeking declaratory relief and an injunction ordering OSHA to implement and enforce the requirements of the Electronic Reporting Rule. See Compl. Plaintiffs also filed a motion for a preliminary injunction, asserting that they were likely to suffer irreparable harm to their organizational efforts absent prompt relief. See ECF No. 7. Defendants later moved to dismiss the complaint, arguing that Plaintiffs lacked standing to bring their claims and that, in any event, they were challenging a nonjusticiable exercise of OSHA’s enforcement discretion. See ECF No. 13. The Court rejected both arguments. First, it concluded that Plaintiffs had standing to bring their claims. Second, the Court determined that Plaintiffs had plausibly alleged that the announcement did not constitute a policy statement about the exercise of OSHA’s enforcement discretion, but rather a “wholesale suspension of the Electronic Reporting Rule.” Pub. Citizen, 363 F.Supp.3d at 18. And that alleged suspension, the Court found, would be subject to judicial review under the APA. See Id. at 18–19. Even so, the Court denied Plaintiffs’ motion for a preliminary injunction because Plaintiffs had not shown the requisite irreparable harm. See Id. at 20–23.

         About a week after the Court denied both parties’ motions, Plaintiffs moved for summary judgment. ECF No. 18 (“Pls.’ MSJ”). They argue that OSHA unlawfully suspended the Electronic Reporting Rule’s July 2018 compliance deadline in violation of the APA and request that the Court “declare [D]efendants’ suspension of the Rule’s submission deadline unlawful[] and order [D]efendants promptly to notify covered employers that they must electronically submit OSHA Form 300 and 301 data that the regulation required the employers to submit by July 2018.” Id. at 15.

         On January 25, 2019, and before Defendants responded to Plaintiffs’ motion, OSHA promulgated a new rule “rescinding the requirement for establishments . . . to electronically submit information from OSHA Forms 300 and 301.” Tracking of Workplace Injuries and Illnesses, 84 Fed. Reg. 380 (Jan. 25, 2019) (hereinafter “2019 Rule”). Plaintiffs here and several States promptly challenged the final rule in two separate lawsuits. See Complaint, Pub. Citizen Health Research Grp. v. Acosta, No. 1:19-cv-00166-TJK (D.D.C. January 25, 2019); Complaint, New Jersey v. Acosta, No. 1:19-cv-00621-TJK (D.D.C. March 6, 2019). In light of the new rule and the attendant legal challenges, Defendants moved to stay this case pending the outcome of the two cases cited above. See ECF No. 27 (“Defs.’ MTS”).

         Defendants did not, however, argue that the new rule rendered Plaintiffs’ claims moot. So the Court ordered the parties to file supplemental briefing addressing that very question. See ECF No. 33. The parties have each submitted supplemental memoranda, see ECF No. 35 (“Pls.’ Supp. Mem.”); ECF No. 36 (“Defs.’ Supp. Mem.”), and responses, see ECF No. 37 (“Pls.’ Supp. Opp’n”); ECF No. 38 (“Defs.’ Supp. Opp’n”). Perhaps unsurprisingly, Defendants now ...

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