PRECEDENTIAL

UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT

_______________________

No. 21

- 2057

_______________________ 

### JANE DOE I; JANE DOE II; JANE DOE III; FRIENDS OF FARMWORKERS, Inc., d/b/a Justice at Work in its capacity as Employee Representative

v.

EUGENE SCALIA , in his official capacity as United States Secretary of Labor; OCCUPATIONAL SAFETY AND

HEALTH ADMINISTRATION; UNITED STATES DEPARTMENT OF LABOR

Jane Doe I; Jane Doe III; Friends of Farmworkers, Inc., d/b/a Justic e at Work in its capacity as Employee Representative. Appellants

_______________________ On Appeal from the United States District Court f

or the Middle District of Pennsylvania District Court No. 3

- 20

- cv

- 01260 District Judge: The Honorabl e Malachy E. Mannion

__________________________

### 2 Argued September 7 , 202 2

Before: JORDAN

, HARDIMAN , and SMITH

, Circuit Judges

(Filed : January 3 1 , 2023 )

Samuel H. Datlof Justice at Work 990 Spring Garden Street Suite 300 Philadelphia, PA 19123

Karla Gilbride David S. Muraskin [ARGUED] Public Justice 1620 L Street, N.W. Suite 630 Washington, DC 20036

Lerae Kroon Justice at Work 5907 Penn Avenue Suite 320 Pittsburgh, PA 15206

David H. Seligman Towards Justice 2840 Fairfax Street Suite 220

### 3 Denver, CO 80 207 Counsel for Appe ll ant s

Amy S. Tryon [ARGUED] United States Department of Labor Office of the Solicitor 200 Constitution Avenue, N.W. Suite N

- 2119 Washington, DC 20210 Counsel for Appell ee s

Sarah R. Schalman

- Bergen Litchten & Liss

- Riordan 729 Boylston Street Suite 2000 Boston, MA 02116 Counsel for Amicus Appellants

__________________________

OPINION OF THE COURT

__________________________ SMITH, Circuit Judge

.

Before us is the appeal by Jane Doe I et al

. (“Plaintiffs”) from an order of the United States District Court for the Middle District of Pennsylvania dismissing Plaintiffs’ claims. The crux of this case concerns the extent to which Section 13(d) of

### 4 the Occupational Safety and Health Act of 1970 (“OSH Act”)

, 1 29 U.S.C. § 662(d) gives employees a private right of action to remed iate dangers in the workplace

— specifically, whether an employee may maintain an action against the Secretary of Labor seeking re lief for dangerous working conditions after the Department of Labor has completed enforcement proceedings

. Th at question is a matter of first impression for this Court

, and for our sister courts of appeal s

. For the reasons set forth below,

w e hold that the OSH Act mandates the dismissal of a § 662 (d) claim once the Department has completed its enforcement proceedings . W e will affirm the District Court’s dismissal of Plaintiffs’ claims

.

I. B ACKGROUND

We begin with an overview of the OSH Act

, some command of which is necessary to understand th is case and the parties’ respective positions. From there, we will outline the factual and procedural background before turning to the merits of this dispute.

A. Overview of the OSH Act

In the OSH Act of 1 970, Congress created the Occupational Safety and Health Administration (“OSHA” or “the Agency” ) to develop and enforce workplace safety standards. In general, OSHA , rather than private litigants, is responsible for assuring workplace safety . In furtherance of

1 29 U.S.C. § 651 et seq

.

### 5 that objective, the OSH Act funnels safety grievances through OSHA’s administrative processes.

1. 29 U.S.C. § § 657

– 660

Section 657 establishes OSHA’s inspection authority and allows employees who suspect workplace safety violations to “r equest an inspection [by OSHA] by giving notice to the Secretary

. . . of such violation or danger.” 29 U.S.C. 657(a), (f)(1). However, § 657 gives OSHA the final determination as to whether “ there are no reasonable grounds to believe that a violation or danger exists .” Id. § 657(f)(1).

Section 658 authorizes OSHA to issue “citations” for any violation s of the OSH Act or OSHA’s regulations which

are discovered during an inspection . However, OSHA may issue such a citation only “ within six mont hs following the occurrence of any violation

. ” Id. § 658(c).

Section 659 outlines OSHA’s standard “enforcement procedures

, ” under which employers may contest an OSHA citation issued pursuant to § 658 but employees may contest only the “period of time fixed in the citation for the abatement of a violation.” Id. § 659(c). When a n employer or an employee initiates a challenge under § 659(c)

, OSHA is charged with resolving the dispute through its administrative processes

. Id.

Section 660 authorizes judicial review of OSHA’s order s issued under § 659(c)

. Id. § 6 60. The scope of judicial review under § 660 is narrow: a reviewing circuit court must defer to OSHA’s well

- supported factual findings and generally may not entertain novel argu ments that a party did not raise during OSHA’s administrative proceeding

. Id. § 660(a).

### 6 2. 29 U.S.C. § 662

In addition to the OSH Act’s standard enforcement procedures, C ongress also provided expedited mechanisms in § 662 for remedying workplace hazards requiring immediate attention . Th e expedited mechanisms provide that the Secretary may seek injunctive relief against an employer and an employee may seek a writ of mandamus against the Secretary to address “imminent danger [ s ] ” in the workplace. Id

. § 662 (a), ( d )

.

Section 662(a) gives U.S. district courts “jurisdiction, upon petition of the Secretary, to restrain any

. . . [workplace hazards] which could reasonably be expected to cause death or serious physical harm immediately or before the imminence of such danger can be eliminated through the enforcement procedures otherwise provided by this chapter .” Id. § 662(a). Section 662(b) , in turn, g ives the district court s “jurisdiction to grant such injunctive relief or temporary restraining order pending the outcome of an enforcement proceeding pursuant to this chapter .” Id. § 662(b) (emphasis added).

Finally, should OSHA “arbitrarily or capriciously fail[] to seek relief under this section,” § 662(d) authorizes a limited private right of action

. Id. § 662 (d). Specifically, § 662(d) provides employees the right to “bring an action against the Secretary

. . . for a writ of mandamus to compel the Secretary to seek such an order [under § 662(a )] and for such further relief as may be appropriate.” Id. § 662(d).

### 7 B. Factual Background

Plaintiffs are employees at the Maid

- Rite Specialty Foods (“Maid

- Rite”) meatpacking plant (the “Plant”) located in Dunmore, Pennsylvania. 2 They seek to employ the OSH Act’s limited private right of action under § 662(d) , contending that OSHA failed to remedy inadequate COVID

- 19 mitigation

measures at the Plant.

T he Plant ’s workers were exposed to COVID

- 19 for the first time in early 2020 . As the virus spread , Plaintiffs became concerned that Maid

- Rite had taken inadequate COVID

- 19 prevention measure s . While Maid

- Rite had implemented some preventative measures such as issuing masks and face shields

, Plaintiffs believed Maid

- Rite was not doing enough to assure worker safety. For example, Plaintiffs alleged that despite the threat of COVID

- 1 9, “Maid

- Rite .

. . forced workers to work shoulder

- to

- shoulder on its production line.” J.A. 77.

C. OSH A Investigation

Pressing their concerns , Plaintiffs sent a n inspection request to OSHA on May 19, 2020

. 3 In that request

, Plaintiffs asked for “ an investigation under 29 U.S.C. § 657(f) because the [] conditions and practices [at the Plant] pose[d] an imminent danger” to employees working there

. J.A. 147.

2 Plaintiffs also include Friends of Farmworkers, Inc. (d/b/a Justice at Work) as an employee representative.

3 Plaintiffs styled their inspection request as an “imminent danger complaint.” J.A. 147.

### 8 Two days later

, OSHA notified Maid

- Rite of Plaintiffs’ inspection req uest and asked for a response within a week

. OSHA also notified Plaintiffs that the Agency would treat Plaintiffs’ inspection request as “non

- formal,” which meant that the initial handling of Plaintiffs’ inspection request would proceed through document ex change. J.A. 143 ¶ 8 . OSHA advised Plaintiffs to notify the Agency if by May 28, 2020 Maid

- Rite had not correct ed its COVID

- 19 prevention

measures.

Plaintiffs followed up with a letter to OSHA dated May 27, 2020. In th at letter, Plaintiffs asserted that Maid

- Rite workers continued to face an imminent danger of COVID

- 19 spread and expressed concern that OSHA had not address ed that danger beyond confirming receipt of Plaintiffs’ inspection request

. Plaintiffs also contacted the Agency on June 2, 2020, requesting Maid

- Rite’s response to OSHA’s outreach and reasserting that conditions ha d not changed since Plaintiffs sent their May 19 inspection request

.

Plaintiffs sent yet another letter to OSHA on Ju ne 29th

, expressing dissatisfaction with how it was handling Plaintiffs’ inspection request

. Plaintiffs again assert ed that “Maid

- Rite has made no changes in the [Plant].” J.A. 166.

On July 8, 2020, OSHA informed Maid

- Rite that OSHA would be inspecting the Plant the following day . In a hearing before the District Court on July 31, 2020 , OSHA acknowledged that advance notice of an inspection “was not a typical practice

, ” J.A. 222 , but that the need “to protect [OSHA’s] employees” from COVID

- 19 necessitated such notice. J.A. 223. In Plaintiffs’ view, the lack of a surprise

### 9 element “allow[ed] Maid

- Rite to direct its employees to change their conduct and create [d] the appearance [that] the [Plant] was closer in line with the OSHA and CDC [COVID

19 mitigation] guidance.” Doe App. Br. p p . 2 0

– 21

.

After completion of the inspection, OSHA determined that conditions at the Plant did not constitute an imminent danger. For that reason, OSHA did not seek expedited relief pursuant to § 662. Yet

, the Agency’s investigation of the Plant under § 657(a), as part of OSHA’s standard enforcement proceedings, remained an ongoing matter

.

D

. Procedural H istory

On July 22, 2020, Plaintiffs filed a Complaint and Emergency Petition for Emergency Mandamus Relief (“Complaint”) in the U.S. District Court for the Middle District of Pennsylvania against the Secretary and OSHA

. Plaintiffs sought relief under § 662(d) and alleged that OSHA was failing to take action to address what were insufficient COVID

- 19 prevention measures at the Plant. On July 28, 2020, OSHA moved to dismiss the Complaint

, asser ting that employee

initiated relief under § 662(d) is proper only when the Secretary of Labor arbitrarily and capriciously declines to take legal action upon the recommendation of an OSHA inspector

.

W hile OSHA’s motion to dismiss was pending in the District C ourt, OSHA concluded its standard enforcement proceedings against Maid

- Rite and declined to issue a citation

. Soon thereafter , the OSHA Regional Administrator affirmed OSHA’s decision not to issue a citation to Maid

- Rite , noting

### 10 that his de termination was “final and not subject to review.” J.A. 233

– 34.

In light of the conclusion reached during OSHA’s standard enforcement proceedings

, and OSHA’s final d ecision

not to issue a citation to Maid

- Rite

, the Agency submitted a supplemental filing with the District Court on January 12, 2021

. It was styled as a “ Suggestion of Mootness.” Dist. Dkt. ECF No. 53. In that submission

, OSHA asserted that because its enforcement proceedings had concluded

, and because the Regional Administ rator ’s decision was unreviewable, the Court could no longer provide relief

. According ly, OSHA argued that the case had become moot.

Plaintiffs filed a response to OSHA’s S uggestion of
M ootness. In th eir response, Plaintiffs asserted that the conclusion of OSHA’s standard enforcement proceedings did not moot the case because § 662(d) permits the C ourt to order “further relief as may be appropriate.” J.A. 12.

On March 30, 2021, the District Court dismisse d Plaintiffs’ claims. First, the Court concluded that the case was

not moot and observed that “if Plaintiffs ’ reading of [ § 662(d )] is correct, they are still able to obtain the relief they seek regardless of the status of OSHA’s inspection.” J.A. 13. Th at rendered the controversy live and properly before the Court.

Having ruled out mootness, the District Court proceeded to set forth its basis for dismissal. The Court concluded that “Section [662(d)] affords employees relief only

. . . [when] the Secr etary has been presented with a finding of imminent danger by an OSHA inspector and [the Secretary]

### 11 has arbitrarily and capriciously rejected the recommendation to take legal action.” 4 J.A. 31

. G iven that the OSHA inspector did

not find an imminent danger in the Plant

— and did not recommend that the Secretary take any action

— the District Court explained that there was “no Secretarial decision” to review. J.A. 34

– 35

. The Court therefore held that since “the prerequisites [of] a [§ 662 (d)] action [were] not met

, ” it lacked jurisdiction and dismissal was required. J.A. 35. Plaintiffs then brought this appeal

.

II. J URISDICTION AND S TANDARD OF R EVIEW

This Court has jurisdiction under 28 U.S.C. § 1291. The District Court had jurisdiction under 28 U.S.C. § 1331. Given that this case hinges on a question of statutory interpretation, our review is plenary

. See Morgan v. Gay , 466 F.3d 276, 277 (3d Cir. 2006)

.

4 Though OSHA argued before the District Court that relie f under § 662(d) is only available when the Secretary has first rejected a recommendation from an OSHA inspector that the Department take legal action, OSHA now disavows that argument on appeal. See OSHA App. Br. p. 10 (“After due consideration, the Secret ary has concluded that [§ 662(d)] does not require a rejected recommendation from [an OSHA inspector] before an employee [] may bring suit under that provision.”)

. We need not reach that issue, although we consider OSHA’s decision not to pursue this path t o have been a wise one.

### 12 III. D ISCUSSION

A. Mootness

As an initial matter, we agree with the District Court that this case is not moot. A “ case ‘becomes moot only when it is impossible for a court to grant any effectual relief whatever to the prevailing party.’” Chafin v. Chafin , 568 U.S. 165, 172 (2013) (quoting Knox v. Serv

. Emps

. Int ’l Union, Local 1000

, 567 U.S. 298, 307 (2012) )

. So long as a case presents live issues such that “the parties have a concrete interest, however small, in the outcome of the litigation, the case is not moot.” Id. at 172 (quoting Knox , 567 U.S. at 307

– 08). Here, the proper construction of § 662(d) is a live legal issue , and our ultimate resolution of that issue will determine whether Plaintiffs may proceed in this action against the Secretary

. Nor is this dispute a theoretical matter

, as Plaintiffs continue to believe that Maid

Rite’s COVID

- 19 mitigation practices provide inadequate protection from disease and so violate the OSH Act. W here, as here, a court faces a novel question of statutory interpretation

— the resolution of which bears directly on plaintiffs’ ongoing claim for relief

— “[t]he opportunity for meaningful relief is still present” and the case is not moot

. Artway v. Att ’ y Gen. of N.J. , 81 F.3d 1235, 1246 (3d Cir. 1996)

.

B. Relief under § 662(d)

B oth sides agree that injunctive relief under § 662 is unavailable at this juncture. Consistent with the plain language of § 662

— that a district court can “restrain any conditions or practices ” that could cause “serious physical harm

. . . before the imminence of such danger c an be eliminated through

### 13 [OSHA’s] enforcement procedures”

— the Secretary may not seek emergency injunctive relief after OSHA has completed its standard enforcement proceedings. 29 U.S.C. § 662(a ) (emphasis added)

. It follows that a district court may not grant

— and a plaintiff may not seek

— a writ of mandamus compelling the Secretary to seek injunctive relief under § 662(d) after OSHA’s enforcement proceedings are completed

.

Plaintiffs contend , however, that § 662(d) authorizes them to seek “such further rel ief as may be appropriate” even after OSHA has completed its enforcement proceedings. Their position is that the “such further relief” language grants employees the ability to challenge OSHA’s determinations on “imminent dangers” in the workplace, divorced from the time constraint applicable to injunctive relief.

We are not persuaded. E mployee

- d riven relief under § 662(d)

— whether it be a writ of mandamus compelling OSHA to seek an injunction or “such further relief as may be appropriate”

— is available only during the pendency of OSHA’s standard enforcement proceedings. Although § 662(d) does not e xpressly tie the availability of “such further relief” to the pendency of OSHA’s enforcement proceedings, that is the only plausible reading in light of § 662’s manifest

purpose.

“ We begin, as always, with the text of the law. ” United States v. Ashurov , 726 F.3d 395, 398 (3d Cir. 2013) . If a

“ statute ’ s language is plain, the sole function of the courts is to enforce it according to its terms.” United States v. Ron Pair
Ent e rs

. , Inc. , 489 U.S. 235, 241 (1989) ( cleaned up). Here, S ection 662(d) authorizes a private right of action “ if the

### 14 Secretary . . . fails to seek relief under [Section 662(a)].” 29 U.S.C. § 662(d) (emphasis added). The word “if” indicates a condition precedent

, s ee If

, Webster ’ s Third International Dictionary 1124 ( unabridged ed. 1966 ))

, suggesting that § 662(d)’ s private right of action is available only when the S ecretary fails to seek relief. But the Secretary’s ability to seek an injunctive order against an employer expires upon the termination o f OSHA’s “ normal enforcement proceedings .” Whirlpool Corp. v. Marshall , 445 U.S. 1, 9 n.12 (1980) ; s ee also 29 U.S.C. § 662(b) (providing that the “district court shall have jurisdiction to grant such injunctive relief or temporary restraining order pending the outcome of an enforcement proceeding pursuant to this chapter”). And as the Secretary cannot fairly b e said to “fail[] to seek relief” when the Secretary lacks the very authority to pursue that relief , it follows that § 662(d)’s private right of action likewise expires once OSHA has completed its enforcement proceedings.

This construction also accords wit h the enforcement scheme Congress established in the OSH Act. Even if the “statute’s language is arguably not plain, ” Congress’s intent to create a time

- limited private cause of action is further evidenced by “ the statutory language in the larger context or structure of the statute in which it is found.” Panzarella v. Navient Sols., Inc. , 37 F.4th 867, 878 (3d Cir. 2022)

. “ Statutory language cannot be construed in a vacuu m,” Sturgeon v. Frost

, 577 U.S. 424, 438 (2016)

, and it is “ our duty to construe statutes, not isolated provisions ,” Singh v. Att’y Gen. , 12 F.4th 262, 272 (3d Cir. 2021) (cleaned up)

. “ I t is a fundamental canon of statutory construction that the words of a statute must be read in their context and with a view to their place in the overall statutory scheme.” Gundy v. United States , 139 S. Ct.

### 15 2116, 2126 (2019)

. Here, § 662 makes manifest that it is concerned with “imminent dangers” that might exist “ pending the outcome of an enforcement p roceeding

. ” 29 U.S.C. § 662 (a)

– (b). This evinces clear c ongressional intent to establish in § 662 a limited mechanism to remedy imminent dangers that cannot await the conclusion of OSHA’s standard enforcement process.

Moreover, the text of § 662(d) gives no indication that Congress intended the “such further relief” language to permit employees to challenge OSHA’s determinations outside of the imminent

- danger context. Instead, the “ such further relief” language is linked to the injunctive re medy

. Id. § 662(d) ( authoriz ing employees to pursue a “writ of mandamus to compel the Secretary to seek [] an [injunction or restraining order to remedy an imminent danger] and for such further relief as may be appropriate” ). The text does not state or imp ly that “further relief” is available outside the context of imminent dangers and the pendency of OSHA’s enforcement proceedings that are the focus of § 662’s statutory scheme. What’s more, the broad private right of action that Plaintiffs propose would undermine the OSH Act’s agency

- driven enforcement structure

. And it is a well

- established presumption of statutory interpretation that “C ongress

. . . does not alter the fundamental details of a regulatory scheme in vague terms or ancillary provisions .” Whitman v. Am. Trucking Ass ’ ns , 531 U.S. 457, 468 (2001)

. W e conclude , therefore, that the private right embodied in § 662(d) is a narrow one, limited to combating imminent workplace dangers that c annot await the conclusion of OSHA’s enforcement proceedings.

### 16 We a ppreciate Plaintiffs’ concern that this interpretation of § 662(d) means that it will provide an avenue for relief in only limited circumstances

. Yet it seems to us that such a limitation is exactly what Congress intended in enacting § 662

. The proper reading of § 662 is that Congress i nserted § 662(d)

as a safeguard against a failure by OSHA to address an imminent danger while its own enforcement proceedings are ongoing. B y desi gn, the private right of action under § 662(d) is narrow ly circumscribed

. And in this case , given that OSHA’s standard enforcement proceedings ha d concluded, relief under § 662(d) was unavailable

.

IV. C ONCLUSION

For the foregoing reasons

, t he District Court’s March 30, 2021 order dismissing Plaintiffs’ claim under 29 U.S.C. § 6 62(d) will be AFFIRMED

.