Doe v. Scalia: No Private Right After OSHA Concludes Investigation

Jane Doe I, Jane Doe III, and Friends of Farmworkers, Inc. (doing business as Justice at Work), filed suit against the Secretary of Labor and OSHA, alleging that COVID-19 conditions at the Maid-Rite meatpacking plant in Pennsylvania constituted an imminent danger under the Occupational Safety and Health Act (OSH Act). They argued that OSHA had failed to act on their safety concerns and sought relief under 29 U.S.C. § 662(d), which permits employees to seek a writ of mandamus if the Secretary arbitrarily or capriciously fails to address imminent dangers.

In May 2020, plaintiffs submitted an inspection request to OSHA, citing imminent danger due to inadequate COVID-19 precautions at the plant. OSHA treated the request as non-formal and initially proceeded with document-based review. Plaintiffs sent multiple follow-ups, expressing concern about continued exposure and lack of enforcement action. OSHA conducted an on-site inspection in July 2020, with advance notice to the employer. After completing the inspection, OSHA determined that no imminent danger existed and declined to seek injunctive relief.

Plaintiffs then filed suit in the Middle District of Pennsylvania, seeking a writ of mandamus under § 662(d) and further relief. They alleged OSHA failed to pursue adequate enforcement despite continued risk to workers. OSHA moved to dismiss, and while the motion was pending, concluded its enforcement process and declined to cite the employer. OSHA argued the case had become moot.

The district court rejected the mootness claim but granted dismissal. It held that relief under § 662(d) was unavailable because the statute only authorized private suits while OSHA's enforcement process was ongoing and where the Secretary declined to act on an imminent danger finding by an inspector. Because OSHA completed its investigation without finding imminent danger, the court ruled there was no basis for relief.

Third Circuit affirmed limited scope of employee relief

The Third Circuit affirmed. It held that § 662(d) authorizes private actions only while OSHA's standard enforcement proceedings are pending. The court interpreted the statute as a limited mechanism designed to compel emergency relief during ongoing administrative investigations, not after OSHA has completed its process.

The court emphasized that the Secretary’s authority to seek emergency relief under § 662(a) terminates once enforcement proceedings conclude. As a result, no relief could be granted under § 662(d) after the agency completed its process and decided not to issue a citation. The court rejected plaintiffs' reading that "such further relief" under § 662(d) could extend beyond that window.

The panel underscored Congress’s intent to limit private actions under the OSH Act, keeping enforcement within the agency’s purview. It ruled that expanding § 662(d) to allow post-enforcement litigation would undermine the statute’s structure and purpose.

Final outcome

The Third Circuit affirmed the district court’s dismissal. It held that once OSHA’s enforcement proceedings concluded without action, employees could not seek further relief under § 662(d), even if they disagreed with the agency’s decision.

Help with OSHA safety compliance and workplace risk issues

If you’ve raised concerns about unsafe working conditions and need legal support navigating OSHA procedures or employer retaliation, Whitcomb, Selinsky PC handles matters involving workplace safety, inspection requests, and OSHA compliance disputes. Reach out to schedule a consultation and learn how our team can assist with your case.