Jane Doe I v. Eugene Scalia

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
__________________________

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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

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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

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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. B ACKGROUND
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.

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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).

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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).

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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.

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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

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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. 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 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.
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

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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]

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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. J URISDICTION AND STANDARD 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 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.

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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 Maid-
Rite’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

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[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

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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.

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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.

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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.

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