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 Justice at Work in its capacity as Employee 

Representative.

 Appellants

_______________________

On Appeal from the United States District Court 

for the Middle District of Pennsylvania

District Court No. 3-20-cv-01260

District Judge: The Honorable Malachy E. Mannion

__________________________
2

Argued September 7, 2022

Before: JORDAN, HARDIMAN, and SMITH, Circuit Judges

(Filed: January 31, 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 80207

 Counsel for Appellants

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 Appellees

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 

remediate dangers in the workplace—specifically, whether an 

employee may maintain an action against the Secretary of 

Labor seeking relief for dangerous working conditions after the 

Department of Labor has completed enforcement proceedings. 

That question is a matter of first impression for this Court, and 

for our sister courts of appeals. For the reasons set forth below, 

we hold that the OSH Act mandates the dismissal of a § 662(d)

claim once the Department has completed its enforcement 

proceedings. We will affirm the District Court’s dismissal of 

Plaintiffs’ claims.

I. BACKGROUND

We begin with an overview of the OSH Act, some 

command of which is necessary to understand this 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 1970, 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 “request 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 violations of the OSH Act or OSHA’s regulations which 

are discovered during an inspection. However, OSHA may 

issue such a citation only “within six months 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 an 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 

orders issued under § 659(c). Id. § 660. 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 arguments 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, Congress also provided expedited mechanisms in 

§ 662 for remedying workplace hazards requiring immediate 

attention. The 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, gives the district courts “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.

The 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 measures. 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-19, “Maid-Rite . . . forced workers to work 

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

C. OSHA Investigation

Pressing their concerns, Plaintiffs sent an 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 request 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 exchange. J.A. 143 ¶ 8. OSHA 

advised Plaintiffs to notify the Agency if by May 28, 2020 

Maid-Rite had not corrected its COVID-19 prevention 

measures.

Plaintiffs followed up with a letter to OSHA dated May 

27, 2020. In that letter, Plaintiffs asserted that Maid-Rite 

workers continued to face an imminent danger of COVID-19 

spread and expressed concern that OSHA had not addressed

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 had not changed since Plaintiffs sent 

their May 19 inspection request.

Plaintiffs sent yet another letter to OSHA on June 29th, 

expressing dissatisfaction with how it was handling Plaintiffs’ 

inspection request. Plaintiffs again asserted 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 [COVID19 mitigation] guidance.” Doe App. Br. pp. 20–21.

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 History

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, asserting that employeeinitiated 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. 

While OSHA’s motion to dismiss was pending in the

District Court, 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 determination 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 decision

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 Administrator’s decision was unreviewable, the 

Court could no longer provide relief. Accordingly, OSHA

argued that the case had become moot.

Plaintiffs filed a response to OSHA’s Suggestion of 

Mootness. In their response, Plaintiffs asserted that the 

conclusion of OSHA’s standard enforcement proceedings did 

not moot the case because § 662(d) permits the Court to order 

“further relief as may be appropriate.” J.A. 12.

On March 30, 2021, the District Court dismissed 

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. That 

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 Secretary 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. Given 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. JURISDICTION AND STANDARD OF REVIEW

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 relief 

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 Secretary 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 to have been 

a wise one.
12

III. DISCUSSION

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 MaidRite’s COVID-19 mitigation practices provide inadequate 

protection from disease and so violate the OSH Act. Where, 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)

Both 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 can 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 relief 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. Employee-driven 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 expressly 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 

Enters., Inc., 489 U.S. 235, 241 (1989) (cleaned up). Here, 

Section 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, see If, Webster’s Third International 

Dictionary 1124 (unabridged ed. 1966)), suggesting that 

§ 662(d)’s private right of action is available only when the 

Secretary fails to seek relief. But the Secretary’s ability to seek 

an injunctive order against an employer expires upon the 

termination of OSHA’s “normal enforcement proceedings.” 

Whirlpool Corp. v. Marshall, 445 U.S. 1, 9 n.12 (1980); see 

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 be 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 with 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 vacuum,” 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). “It 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 proceeding.” 29 U.S.C.

§ 662(a)–(b). This evinces clear congressional 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 remedy. Id. § 662(d) 

(authorizing 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 imply 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 “Congress . . . 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). We conclude, therefore, that 

the private right embodied in § 662(d) is a narrow one, limited 

to combating imminent workplace dangers that cannot await 

the conclusion of OSHA’s enforcement proceedings. 
16

We appreciate 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 inserted § 662(d)

as a safeguard against a failure by OSHA to address an 

imminent danger while its own enforcement proceedings are 

ongoing. By design, the private right of action under § 662(d) 

is narrowly circumscribed. And in this case, given that 

OSHA’s standard enforcement proceedings had concluded, 

relief under § 662(d) was unavailable. 

IV. CONCLUSION

For the foregoing reasons, the District Court’s March 

30, 2021 order dismissing Plaintiffs’ claim under 29 U.S.C. 

§ 662(d) will be AFFIRMED.