Flower World Inc v. Sacks

• Court: District Court, W.D. Washington
• Decided: August 3, 2021
• Docket: 3:21-cv-05305
• Status: Unknown

Opinion

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6 7 UNITED STATES DISTRICT COURT 8 WESTERN DISTRICT OF WASHINGTON AT TACOMA 9 10 FLOWER WORLD, INC., CASE NO. 3:21-cv-05305-RJB 11 Plaintiff, ORDER GRANTING 12 v. DEFENDANTS’ SECOND MOTION TO DISMISS (DKT. 17) 13 JOEL SACKS, Director, and CRAIG BLACKWOOD, Acting Assistant Director 14 of the Washington Department of Labor and Industries in their official capacities, 15 Defendants. 16

17 This matter comes before the Court on Defendants’ Second Motion to Dismiss Under 18 Fed. R. Civ. P. 12(b)(6). Dkt. 17. The Court has considered the pleadings filed in support of and 19 in opposition to the motions and the file herein. 20 Plaintiff, Flower World, Inc. (“Flower World”), alleges that the Washington State 21 Department of Labor & Industries lacked the authority to issue Flower World a citation for 22 failure to require masking, social distancing, and temperature checks during the COVID-19 23 pandemic because federal law preempts the regulation at issue. 24 For the following reasons, Defendants’ motion to dismiss should be granted. 1 I. FACTS AND PROCEDURAL HISTORY 2 A. FACTS 3 Flower World is a horticultural enterprise in Snohomish County. Dkt. 22. On July 28, 4 2020, the Washington State Department of Labor and Industries (“WDOL”) issued Flower 5 World the following citation pursuant to WAC 29-307-045(1), which is the general duty clause

6 of the Washington Industrial Safety and Health Act (“WISHA”). 7 The employer did not ensure to furnish to each employee a place of employment free from recognized hazards that are causing or likely to cause serious injury or 8 death to employees. In this instance, the employer did not ensure that the addendum to the Governor’s 9 Proclamation 20-57 (5/28/20) was met. The addendum discusses the requirements concerning the Health of Agricultural Workers. 10 The following instances were not met: -Social Distancing of six (6) feet at all times by all employees. 11 -Masks/Face coverings were not worn at all times by all employees. -Temperature checks at the beginning of each work day are not being conducted. 12 … NOTE: Employers must comply with all conditions for operation required by 13 emergency proclamation issued under RCW 43.06.220, including Safe Start phased reopening requirements for all businesses and any industry specific requirements. 14 Id. at 3–4. 15 Flower World does not dispute the facts listed in this citation. See Dkt. 22. Instead, 16 Flower World argues that the WDOL is prohibited from issuing this citation because the 17 regulations cited are preempted by the federal Occupational Safety and Health Act (“OSH Act”). 18 Id. at 2. The Occupational Safety and Health Administration (“OSHA”) administers the OSH 19 Act. 20 Flower World requests a declaratory judgment that Proclamation 20-57 and WAC 2960307- 21 045(1) are preempted by federal law and are in violation of the Supremacy Clause in Article XI, 22 Clause 2 of the United States Constitution. 23

24 1 B. PENDING MOTION 2 In the pending motion, Defendants move to dismiss Flower World’s complaint pursuant 3 to Federal Rule of Civil Procedure 12(b)(6) on the grounds no federal authority was required for 4 the WDOL to issue the citation, and, therefore, it is not preempted. Dkt. 17. Defendants also 5 argue that there is no federal jurisdiction to bring this claim. The Court will first discuss general

6 standards for a motion to dismiss and preemption, then jurisdiction, and finally the preemption 7 analysis. 8 II. DISCUSSION 9 A. STANDARD FOR MOTION TO DISMISS 10 Fed. R. Civ. P. 12(b) motions to dismiss may be based on either the lack of a cognizable 11 legal theory or the absence of sufficient facts alleged under a cognizable legal theory. Balistreri 12 v. Pacifica Police Dep’t, 901 F.2d 696, 699 (9th Cir. 1990). Material allegations are taken as 13 admitted and the complaint is construed in the plaintiff's favor. Keniston v. Roberts, 717 F.2d 14 1295 (9th Cir. 1983). “While a complaint attacked by a Rule 12(b)(6) motion to dismiss does

15 not need detailed factual allegations, a plaintiff's obligation to provide the grounds of his 16 entitlement to relief requires more than labels and conclusions, and a formulaic recitation of the 17 elements of a cause of action will not do.” Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 554-55 18 (2007) (internal citations omitted). “Factual allegations must be enough to raise a right to relief 19 above the speculative level, on the assumption that all the allegations in the complaint are true 20 (even if doubtful in fact).” Id. at 555. The complaint must allege “enough facts to state a claim 21 to relief that is plausible on its face.” Id. at 547. 22 B. STANDARD FOR PREEMPTION 23 “The question of whether a certain state action is pre-empted by federal law is one of 24 1 congressional intent.” Gade v. Nat’l Sold Wastes Mgmt. Ass’n, 505 U.S. 88, 96 (1992) (quoting 2 Allis-Chalmers Corp. v. Lueck, 471 U.S. 202, 208 (1985)). Though there are three types of 3 federal preemption, conflict, express, and field, they operate in the same way: Congress enacts a 4 law that imposes restrictions or confers rights; a state law regulates the same restrictions or 5 rights; and, if the federal law clearly intended to preempt the state law, then the federal law takes

6 precedence and the state law is preempted. See id.; Murphy v. Nat’l Collegiate Athletic Ass’n, 7 138 S.Ct. 1461, 1480 (2018). 8 By enacting OSH Act, Congress sought “to assure so far as possible ever working man 9 and woman in the Nation safe and healthful working conditions.” 29 U.S.C. § 651(b). To that 10 end, “the Osh Act pre-empts all state ‘occupational safety and health standards relating to any 11 occupational safety or health issue with respect to which a federal standard has been 12 promulgated.’” Gade, 505 U.S. at 102 (quoting 29 U.S.C. § 667(b)). This intent is clear from 13 its statutory language. Section 18 of the OSH Act, which is codified as 29 U.S.C. § 667, 14 includes two clear directives. First, § 667(a) states, “Nothing in this chapter shall prevent any

15 State agency or court from asserting jurisdiction under State law over any occupational safety or 16 health issue with respect to which no standard is in effect under section 655 of this title.” 17 Second, § 667(b) allows states to promulgate standards for which there is a standard in effect, if 18 the state submits a plan to OSHA, and OSHA approves it. 19 Both the OSH Act and the WISHA include a general duty clause. Under the OSH Act, 20 each employer must “furnish to each of his employees employment and a place of employment 21 which are free from recognized hazards that are causing or are likely to cause death or serious 22 physical harm.” 29 U.S.C. § 654(a)(2). The WISHA is virtually identical and reads, “Each 23 employer: [] Shall furnish to each of his or her employees a place of employment free from 24 1 recognized hazards that are causing or are likely to cause serious injury or death to his or her 2 employees[.]” 3 Therefore, the OSH Act would preempt the WISHA citation either if there is a specific 4 standard OSHA standard in effect regulating COVID-19 health and safety standards, or if the 5 OSH Act general duty clause is considered a standard that preempts the WISHA general duty

6 clause. If neither condition applies, then the citation is allowed under 29 U.S.C. § 667(a). 7 Before reaching these questions, however, the Court will discuss why there is federal jurisdiction 8 to bring this claim. 9 1. Federal Jurisdiction Exists 10 Defendants argue that there is no federal jurisdiction because Washington has an 11 approved state plan under 29 U.S.C. § 667(b). Therefore, the only question is whether there is a 12 violation of WISHA is a question of state law. 13 While it is true that the question of whether there is a WISHA violation is a question of 14 state law, federal jurisdiction exists because Flower World contends that the OSH Act preempts

15 the citation at issue. The existence of a state plan does not preclude federal jurisdiction. See 16 Industrial Truck Ass’n, Inc. v. Henry, 125 F.3d 1305, 1306 (9th Cir. 1997). Theoretically, states 17 could enact new standards not approved by the plan or interpret an approved standard in a way 18 that conflicts with an existing OSH Act standard. Both could comply with state law but could 19 require federal preemption. The issue in this case presents an example of that: the OSH Act 20 could preempt WISHA citations for violating COVID-19 health and safety measures under the 21 general duties clause are if there are OSH Act COVID-19 health and safety standards in place. 22 Therefore, jurisdiction exists despite the existence of an approved state plan. 23 24 1 2. No Specific OSH Act Standard in Place Regulating COVID -19 Health and Safety 2 Plaintiff vaguely references OSH Act standards regulating respiratory hazards. Dkt. 22 at 3 15. The most applicable standard appears to be 29 C.F.R. 1910.134 (Respiratory protection), but 4 that standard is to “control those occupational diseases caused by breathing air contaminated 5 with harmful dusts, fogs, fumes, mists, gases, smokes, sprays, or vapors[.]” It does not apply to

6 protection from airborne viruses. Plaintiffs provide any other specific OSH Act standard, nor is 7 the Court aware of any other relevant standard. 8 Therefore, there is no specific standard OSH Act standard in place for the regulating 9 health and safety standards related to COVID-19. 10 3. OSH Act General Duty Clause Does Not Preempt WISHA General Duty Clause 11 The OSH Act general duty clause does not preempt the WISHA general duty clause both 12 because the WISHA general duty clause was approved by OSHA under § 667 and because it is 13 not a specific standard to which preemption would apply. 14 To the extent that the WISHA general duty clause does conflict with the OSH Act

15 general duty clause, it was approved by OSHA in 1973. 38 FR 2321 (Jan. 26, 1973). The 16 general duties clause has long been recognized as a means by which safety violations for which 17 there is no specific standard in place may be cited. See Briston Steel & Iron Works, Inc. v. 18 Occupational Safety & Health Review Comm’n, 601 F.2d 717, 721 (1979). By approving the 19 WISHA general duties clause, OSHA approved of WDOL using its general duties clause for the 20 same reason. 21 In addition, the general duty clause is not a standard. It is not found in the “Standards” 22 Section of the OSH Act. 29 U.S.C. § 655. It is in Section 5, “Duties.” 29 U.S.C. § 654. 23 24 1 “The OSH Act is not meant to interfere ‘with states’ exercise of police powers to protect 2 their citizens.’” Ramsey Winch Inc. v. Henry, 555 F.2d 1199, 1207 (10th Cir. 2009) (quoting 3 Lindsey v. Caterpillar, Inc., 480 F.3d 202, 208 (3rd Cir. 2007)). That is at least part of the 4 reason § 667(a) allows states to “assert jurisdiction under State law over any occupational safety 5 or health issue with respect to which no [OSH Act] standard is in effect[.]” To find that the

6 OSH Act’s general duty clause preempts state regulation through its own general duty clause, 7 would interfere with the State’s ability to protect employees from unanticipated hazards and 8 would frustrate states’ ability to protect its citizens. 9 Therefore, the OSH Act general duties clause does not preempt the WISHA general 10 duties clause. 11 C. CONCLUSION 12 The OSH Act does not prohibit WDOL from issuing a citation for failure to comply with 13 health and safety measures related to the COVID-19 pandemic because there is not a specific 14 federal standard in place regulate health and safety related to COVID-19. Though preemption is

15 the only issue raised in the complaint, the Parties also dispute whether issuance of the citation 16 complied with Washington State law. That is a question of Washington law not relevant to the 17 preemption question. 18 III. ORDER 19 Therefore, it is hereby ORDERED that: 20  Defendants’ Motion to Dismiss (Dkt. 17) IS GRANTED; 21  This case IS CLOSED. 22 The Clerk is directed to send uncertified copies of this Order to all counsel of record and 23 to any party appearing pro se at said party’s last known address. 24 1 Dated this 3rd day of August, 2021.

2 A

3 ROBERT J. BRYAN 4 United States District Judge

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