UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA
PUBLIC CITIZEN HEALTH RESEARCH GROUP et al.,
Plaintiffs, v. Civil Action No. 18-1729 (TJK)
PATRICK PIZZELLA et al.,
Defendants.
MEMORANDUM OPINION
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.
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.
1 The facts recounted here are undisputed unless otherwise noted.
2 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
2 Patrick Pizzella was automatically substituted for R. Alexander Acosta as a defendant under Federal Rule of Civil Procedure 25(d).
3 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
4 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 assert
that the 2019 Rule rendered Plaintiffs’ challenge to the May 2018 announcement in this action
moot, a claim Plaintiffs strenuously dispute.
Legal Standards
“If [a] court determines at any time that it lacks subject-matter jurisdiction, the court must
dismiss the action.” Fed. R. Civ. P. 12(h)(3). Indeed, even without an objection from one of the
parties, a court must dismiss an action “on its own initiative” when it makes such a
determination. Arbaugh v. Y & H Corp., 546 U.S. 500, 506 (2006). “Federal courts lack
jurisdiction to decide moot cases because their constitutional authority extends only to actual
cases or controversies.” Iron Arrow Honor Soc’y v. Heckler, 464 U.S. 67, 70 (1983); see also
U.S. Const. art. III, § 2. In other words, the case-and-controversy requirement is unremitting; if
at any point the court determines that a case or controversy no longer presents, the court must
dismiss the action. See Decker v. Nw. Envtl. Def. Ctr., 568 U.S. 597, 609 (2013).
Analysis
The Court’s analysis begins—and ends—with an examination of its jurisdiction vel non
over this matter. In their supplemental briefing, Defendants assert that the 2019 Rule superseded
the May 2018 announcement because it permanently rescinded the July 2018 reporting
requirement that the May 2018 announcement purportedly only suspended. See Defs.’ Supp.
5 Mem. at 6–8. As a result, they argue, the Court can no longer grant Plaintiffs any effective
relief; the unlawful agency action they challenge, and seek this Court to vacate, has been
overtaken by subsequent agency action not before the Court. Id.
Plaintiffs dispute Defendants’ characterization of the 2019 Rule. They assert that “this
case is moot only if the [2019 Rule] rescinded the reporting requirement . . . for both future years
and for July 2018.” Pls.’ Supp. Mem. at 2. And the Rule, they contend, is not (and cannot be)
retroactive. See id. at 3–4. In Plaintiffs’ view, a live case or controversy still exists about
whether OSHA improperly suspended the July 2018 submission deadline for the Electronic
Reporting Rule, and the Court can therefore declare that suspension unlawful and order OSHA to
recognize and enforce that deadline.
“Simply stated, a case is moot when the issues presented are no longer ‘live’ or the
parties lack a legally cognizable interest in the outcome.” Cty. of Los Angeles v. Davis, 440 U.S.
625, 631 (1979) (quoting Powell v. McCormack, 395 U.S. 486, 496 (1969)). “This occurs when,
among other things, the court can provide no effective remedy because a party has already
‘obtained all the relief that [it has] sought.” Conservation Force, Inc. v. Jewell, 733 F.3d 1200,
1204 (D.C. Cir. 2013) (alteration in original) (quoting Monzillo v. Biller, 735 F.2d 1456, 1459
(D.C. Cir. 1984)). A claim may also be rendered moot where “intervening events make it
impossible to grant the prevailing party effective relief.” Lemon v. Geren, 514 F.3d 1312, 1315
(D.C. Cir. 2008) (quoting Burlington N. R.R. Co. v. Surface Transp. Bd., 75 F.3d 685, 688 (D.C.
Cir. 1996)).
There can be little dispute that Plaintiffs have not “obtained all the relief that they [have]
sought.” Monzillo, 735 F.2d at 1459. They seek a declaration that Defendants’ announcement
violated the APA and an injunction requiring Defendants to “implement and enforce all the
6 requirements of the Electronic Reporting Rule,” including by requiring and accepting
submissions of Form 300 and Form 301. Compl. at 10. At this time, OSHA is not accepting any
forms, and the Electronic Reporting Rule, including the July 2018 compliance deadline, is not in
effect. See Compl. ¶ 20; ECF No. 27-1 (“Edens Decl.”) ¶¶ 1–2.
As both parties acknowledge, however, if the 2019 Rule superseded the alleged
suspension effected by the May 2018 announcement, the Court would be unable to grant
Plaintiffs any effective relief in this lawsuit. See Pls.’ Supp. Mem. at 2; Defs.’ Supp. Mem. at 7–
8. In those circumstances, if the Court were to declare the May 2018 announcement an unlawful
suspension of the Electronic Reporting Rule’s July 2018 deadline for forms covering calendar
year 2017, that pronouncement would do Plaintiffs no good. The 2019 Rule, including its
permanent recession of the electronic reporting requirements for Form 300 and Form 301, would
remain in effect. And Plaintiffs would be no closer to accessing the data they seek. See Grant v.
Vilsack, 892 F. Supp. 2d 252, 256–57 (D.D.C. 2012). Furthermore, the Court could not order
that OSHA “implement and enforce” the Electronic Reporting Rule if the agency, by a separate
action not before this Court, undertook new rulemaking to permanently rescind it. See Ctr. for
Sci. in the Public Interest v. Regan, 727 F.2d 1161, 1164–65 (D.C. Cir. 1984); Clean Water
Action v. Pruitt, 315 F. Supp. 3d 72, 87 (D.D.C. 2018). If the 2019 Rule did indeed entirely
supersede the May 2018 announcement, to be entitled to the specific relief they seek, Plaintiffs
must challenge that new rulemaking.
Whether this Court still has subject-matter jurisdiction thus turns on the scope of the 2019
Rule. Defendants contend that the 2019 Rule removed the electronic submission requirement for
Form 300 and Form 301 for all covered years, including for calendar year 2017. See Defs.’
Supp. Mem. at 8. And turning to its text, the Court can only agree. The published final
7 rulemaking confronts the electronic submission requirement in the abstract, examining whether
that aspect of the Electronic Reporting Rule is sound policy. See 84 Fed. Reg. 383–87.
Concluding that it is not, OSHA removes the requirement entirely for the two forms at issue,
striking it from the regulatory text regardless of the applicable year. See 84 Fed. Reg. 405
(describing amendments to 29 C.F.R. part 1904); see also 84 Fed. Reg. 404 (“Under the final
rule, [covered] establishments are only required to submit summary information from the OSHA
Form 300A.”).
The rulemaking does not, as Plaintiffs insist, assume that the July 2018 deadline had been
separately rescinded by the May 2018 announcement. Indeed, that would be inconsistent with
Plaintiffs’ very theory of this case. According to Plaintiffs, the May 2018 announcement
suspended the first deadline—that is, it put on hold the requirement for covered employers to
submit Form 300 and Form 301 with data from 2017. See Compl. ¶¶ 23, 29. And that alleged
suspension would necessarily become inoperative once OSHA, by a separate rulemaking not
challenged here, decided to permanently rescind the requirement rather than merely suspend it.
The circumstances here are remarkably similar to those presented in Clean Water Action.
In that case, the plaintiffs challenged an indefinite stay of a regulation imposing new effluent
limitations for power plants and specific compliance deadlines. See 315 F. Supp. 3d at 77. But
while the lawsuit was pending, the agency promulgated a new regulation, reinstating some of the
deadlines and further postponing others. See id. at 77–78. The court thus dismissed the
plaintiffs’ claims as moot because the new rule had either reinstated the compliance deadlines as
the plaintiffs sought or, notably, postponed them even more by agency action not before the
court. See id. at 86–87. The situation here is, for mootness purposes, the same as that second
8 circumstance. OSHA, by a later rulemaking not before the Court here, decided to forgo the
suspension and just lift the reporting requirements entirely. 3
Plaintiffs still protest that reading the 2019 Rule to remove the submission requirement
even for calendar-year 2017 data would render the Rule impermissibly retroactive. See Pls.’
Supp. Memo. at 3–4. As they correctly point out, the D.C. Circuit has held that the APA does
not afford an agency the authority to enact retroactive legislative rules absent direct
congressional authorization in the agency’s organic statute. See Georgetown Univ. Hosp. v.
Bowen, 821 F.2d 750, 756–58 (D.C. Cir. 1987), aff’d, 488 U.S. 204 (1988). And neither party
contends that the Occupational Safety and Health Act, 29 U.S.C. § 651 et seq., provides that
authority.
But a “provision operates retroactively when it ‘impair[s] rights a party possessed when
he acted, increase[s] a party’s liability for past conduct, or impose[s] new duties with respect to
transactions already completed.’” Nat’l Mining Ass’n v. Dep’t of Labor, 292 F.3d 849, 859 (per
curiam) (quoting Landgraf v. USI Film Prods., 511 U.S. 244, 280 (1994)). Applied “[i]n the
administrative context, a rule is retroactive if it ‘takes away or impairs vested rights acquired
under existing law, or creates a new obligation, imposes a new duty, or attaches a new disability
3 Plaintiffs seek to distinguish this case from Clean Water Action, noting that in that case the agency expressly stated that it withdrew the challenged stay of compliance deadlines in the later rulemaking. 315 F. Supp. 3d at 86. But while that certainly confirms the agency’s intent, the Court does not think such an express revocation necessary when the later rulemaking, by its terms, can only have the effect of rendering obsolete the interim stay. To be sure, in the published rulemaking for the 2019 Rule, OSHA explains, consistent with its insistence that the May 2018 announcement was not in fact a suspension of the Electronic Reporting Rule, that it merely “announced that it would not enforce this requirement without notice during this rulemaking.” 84 Fed. Reg. 382. But even under that conception of the May 2018 announcement, the 2019 Rule necessarily supersedes the effect of that announcement by lifting the requirement that covered employers must submit Form 300 and Form 301 regardless of the year, including for the year that had passed and the deadline that, according to Defendants, they chose not to enforce.
9 in respect to transactions or considerations already past.’” Id. (quotation marks omitted)
(quoting Nat’l Mining Ass’n v. U.S. Dep’t of the Interior, 177 F.3d 1, 8 (D.C. Cir. 1999)). The
2019 Rule causes none of those effects. As to the parties directly regulated by the 2019 Rule—
the covered employers—it lifts an existing obligation, and thus it cannot be said to “impose[] a
new duty” or “attach[] a new disability” to something that those employers have done or not
done. Nor, for that matter, can it be said to impair their “vested rights.” And Plaintiffs do not
assert that they themselves have any vested rights directly impacted by the 2019 Rule. See Pls.’
Supp. Opp’n at 2. Indeed, the sole injury Plaintiffs claim in support of their standing to bring
this suit is their inability to access data, and they have not alleged that they have taken any action
that would confer on them a vested legal right to that as-yet uncollected information. For these
reasons, Plaintiffs’ attempts to cast the 2019 Rule as impermissibly retroactive do not succeed. 4
At bottom, Plaintiffs in this lawsuit challenge an agency action as unlawful. They claim
that OSHA wrongfully delayed the compliance deadline for one of its regulations. But before
this Court entered judgment, OSHA went through the rulemaking process and tried again, this
4 There are of course two well-recognized exceptions to mootness: (1) the “voluntary cessation” exception and (2) the “capable of repetition but evading review” exception. See, e.g., Cierco v. Mnuchin, 857 F.3d 407, (D.C. Cir. 2017). But Plaintiffs make no argument that either might apply here, and for good reason. To the extent the issuance of the 2019 Rule constitutes “voluntary cessation” of the allegedly unlawful May 2018 announcement, as noted, issuance of the 2019 Rule entirely replaced the May 2018 announcement and thus “completely eradicated the effects of” it. NRDC v. U.S. Nuclear Regulatory Comm’n, 680 F.2d 810, 814 n.8 (D.C. Cir. 1982). Indeed, in the administrative context, “repromulgation of [a rule] pursuant to notice and comment . . . is more accurately characterized as the provision of appropriate relief . . . than as cessation of illegal conduct.” Id. (quotation marks omitted). Nor is there any non-speculative threat that OSHA would suspend the Electronic Reporting Rule’s reporting requirements again in the future, given that OSHA has permanently rescinded them. See Clean Water Action, 315 F. Supp. 3d at 87. For the second exception to apply, Plaintiffs would likewise need to show a “reasonable expectation that [they] would be subjected to the same action again.” Murphy v. Hunt, 455 U.S. 478, 482 (1982) (quoting Weinstein v. Bradford, 423 U.S. 147, 149 (1975) (per curiam)). As noted, on this record, they have not done so.
10 time deciding not just to delay the compliance deadline, but to remove it altogether. To be sure,
Plaintiffs still insist that they are being deprived of access to data that OSHA is required by law
to collect, but it is not because of the May 2018 announcement. That action is a dead letter.
Rather, it is due to the 2019 Rule, which Plaintiffs have already challenged in a separate lawsuit.
This case, on the other hand, is moot.
Conclusion
For all these reasons, the Court will, by separate order, dismiss this action for lack of
subject-matter jurisdiction. And the Court will therefore deny Plaintiffs’ Motion for Summary
Judgment, ECF No. 18, and deny Defendants’ Motion to Stay, ECF No. 27, as moot.
/s/ Timothy J. Kelly TIMOTHY J. KELLY United States District Judge
Date: September 26, 2019