United Parcel Service, Inc. v. Occupational Safety and Health Administration, U.S. Department of Labor et al

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF DELAWARE
UNITED PARCEL SERVICE,
INC.,
Plaintiff,
V.
OCCUPATIONAL SAFETY AND
HEALTH ADMINISTRATION;
U.S. DEPARTMENT OF LABOR;
and JULIE A. SU,in her official
capacity as Acting Secretary of
Labor,
Defendants.
Civil Action No. 24-1036-CFC
Jody Barillare, MORGAN LEWIS & BOCKIUS LLP, Wilmington, Delaware;
Brandon J. Bigham, MORGAN LEWIS & BOCKIUS LLP,Philadelphia,
Pennsylvania
Counselfor Plaintiff
Benjamin L. Wallace, United States Attorney, Dylan J. Steinberg, Assistant United
States Attorney, THE UNITED STATES ATTORNEY'S OFFICE FOR THE
DISTRICT OF DELAWARE,Wilmington, Delaware
Counselfor Defendants
MEMORANDUM OPINION
March 26, 2026
Case 1:24-cv-01036-CFC Document 32 Filed 03/26/26 Page 1 of 21 PageID #:
<pageID>

COLM F. mNNOLLY
CHIEF JUDGE
United Parcel Service, Inc.(UPS), a shipping, receiving, and supply chain
management company, has sued the Occupational Safety and Health
Administration(OSHA),the U.S. Department of Labor, and Julie Su, in her
official capacity as Acting Secretary of Labor, alleging violations of the Fourth
Amendment,the Occupational Safety and Health Act, and the Administrative
Procedure Act. D.I. I.
Pending before me is UPS's motion for summary judgment. D.I. 20.
1.
Congress passed the Occupational Safety and Health Act of 1970 (the OSH
Act)"to assure so far as possible every working man and woman in the Nation safe
and healthful working conditions." 29 U.S.C. § 651(b). OSHA, which is part of
the Department of Labor, carries out the OSH Act's mission of assuring that
America's workers have "safe and healthful working conditions." OSHA,About
OSHA (last visited March 25, 2026) https;//www.osha.gov/aboutosha
[https://perma.cc/TQ97-G8UQ]. It does so by
setting and enforcing standards; enforcing anti-retaliation
provisions ofthe OSH Act and other federal whistleblower
laws; providing and supporting training, outreach,
education, and assistance; and working collaboratively
with [] state OSHA programs as well as ensuring that they
Case 1:24-cv-01036-CFC Document 32 Filed 03/26/26 Page 2 of 21 PageID #:
<pageID>

are at least as effective as federal OSHA, furthering a
national system of worker safety and health protections.
Id. Under section 8(a) of the OSH Act, 29 U.S.C. § 657(a), OSHA can enter and
inspect workplaces to ensure that employers are carrying out the purposes of the
OSH Act.
On August 29, 2024, OSHA filed with Magistrate Judge Christopher J.
Burke of this Court two applications for inspection warrants for two UPS worksites
in Delaware, one in Harrington and the other in New Castle. D.I. 22-2 at 30-37;
D.I. 22-2 at 43-50. The applications are identical in all material respects. In each
application, OSHA stated that it had received "employer-reported referrals]
alleging that an employee [at each worksite] had been hospitalized" because of
heat exhaustion; that OSHA had "attempted to make entry to [each] workplace to
initiate an inspection, conduct said inspection, and discuss utilizing employee
sampling devices as part of reasonable inspection techniques"; and that UPS
"declined to allow [OSHA]access for employee sampling." D.I. 22-2 at 30-31;
D.I. 22-2 at 43^4. The applications did not mention sampling devices other than
"employee sampling devices."
The next day, August 30, Magistrate Judge Burke issued a Warrant for
Inspection for each of the Delaware worksites. Each warrant provided in relevant
part that the investigation of the facility it authorized
Case 1:24-cv-01036-CFC Document 32 Filed 03/26/26 Page 3 of 21 PageID #:
<pageID>

shall include investigation of the establishment or other
area, workplace, or environment where work is perfonned
by employees of the employer and to all pertinent
conditions, stmctures, machines, apparatus, devices,
equipment, materials, and all other things therein
(including processes, controls, and facilities) bearing on
whether this employer is furnishing to his employees
employment and a place of employment which are free
from recognized hazards that are causing or are likely to
cause death or serious physical harm to his employees, and
whether this employer is complying with the occupational
safety and health standards promulgated under the [OSH]
Act and the rules, regulations and orders issued pursuant
to the Act....
The inspection shall also include the affixing ofmonitoring
devices upon employees to determine the extent of their
exposure to potential hazards, as authorized by 29 C.F.R.
§ 1903.7(b).
D.I. 22-2 at 39^0(emphasis added); D.I. 22-2 at 52-53 (emphasis added). Each
warrant further provided that OSHA had up to seven working days (i.e., no later
than September 10)to begin the authorized inspection, and up to ten working days
to complete the inspection.
On the morning of Thursday, September 5, OSHA staff attempted "to
conduct heat sampling on [the] trucks" located at UPS's Harrington worksite,"but
were told [by UPS]that they would not be permitted to conduct [that] sampling."
D.I. 22-2 at 69. Later that day, Matthew Epstein, a lawyer with OSHA,emailed
UPS. Epstein recounted in the email that UPS staff at the Harrington worksite had
refused to let OSHA conduct "heat sampling on trucks" that morning. He went on
Case 1:24-cv-01036-CFC Document 32 Filed 03/26/26 Page 4 of 21 PageID #:
<pageID>

to state that OSHA "had a warrant for this sampling" and that"OSHA ha[d]
reviewed this issue and concluded that [it] ha[s]jurisdiction to check for heat stress
issues on trucks because the Department of Transportation has no regulations
conceming heat stress." D.I. 22-2 at 69. Epstein further stated that "[i]f we need
to obtain the support of the U.S. Marshalls to get access to do this sampling, we
will do so, but I would prefer not to have to do that." D.I. 22-2 at 69.
Less than two hours later, Brandon Brigham, outside counsel for UPS,
contacted Epstein. In their initial phone call, the two lawyers "discussed whether
OSHA is preempted [by laws and regulations goveming the Department of
Transportation] from monitoring temperatures within UPS's trucks while they
travel on public roadways and whether the [Harrington worksite] warrant even
allows for OSHA to monitor temperature on the public roadways since the warrant,
as worded, only specifies that[OSHA] may enter [the Harrington] worksite to
conduct an inspection." D.I. 22-2 at 65. Epstein also "confirmed" during the call
"that OSHA d[id] not intend to have federal marshals enforce the [Harrington
worksite] warrant [that day] and that[OSHA] would provide [UPS] until at least
Monday[,][September 9,] to investigate the issue and relay UPS's position."
D.I. 22-2 at 65.
In the ensuing three days, Epstein and Brigham exchanged emails about the
Harrington worksite warrant, the characteristics of the QuesTemp 34 heat sampling
Case 1:24-cv-01036-CFC Document 32 Filed 03/26/26 Page 5 of 21 PageID #:
<pageID>

monitor OSHA sought to install in UPS's trucks, and whether OSHA had the
requisite authority to conduct heat sampling of trucks while those trucks were on
roads beyond the confines of the Harrington worksite. On Sunday, September 8,
Brigham told Epstein that "[i]f OSHA intends to execute the [Harrington worksite]
warrant on Monday, we intend to move for a temporary restraining order [(TRO)]
first thing tomorrow morning in [this Court]." D.I. 22-2 at 61. Epstein responded
that aflemoon that "OSHA will not enforce the wanunt tomoiTow" and asked
Brigham to speak the following "morning after I've been able to eatch up with
more people on my end." D.I. 22-2 at 60. The next day, Epstein told Brigham that
he did not "anticipate that[OSHA] would attempt to [install] monitor[s] before the
end of the week" and that OSHA was 'having some additional internal
discussions" about the situation. D.I. 22-2 at 57.
On the morning of Tuesday, September 10, Brigham told Epstein in an email
that UPS "intend[s] to file [a] complaint and motion for [a] temporary restraining
order later today, most likely in the evening, or first thing tomorrow morning" in
this Court. D.I. 22-2 at 56. Less than an hour later, Epstein emailed Brigham:
With respect to a TRO, our warrant expires this evening
and we will not be renewing it tomorrow, or expect that it
would be renewed this week. While we do not concede
the jurisdictional question, I believe that the TRO would
be moot under those cireumstances.
Case 1:24-cv-01036-CFC Document 32 Filed 03/26/26 Page 6 of 21 PageID #:
<pageID>

Depending on the outcome of some internal discussions,
if we decide to reapply for the wamant, we would let you
know so that you could re-prepare to file for a TRO.
D.L 22-2 at 56. Brigham responded that he would confer with UPS but that he
"suspect[ed][UPS] will move forward with the TRO regardless because OSHA
still has the ability to reapply for the warrant and OSHA has not conceded the
jurisdictional question." D.I. 22-2 at 55.
The Delaware warrants expired on September 10 without OSHA ever having
installed heat monitoring equipment in a UPS truck. Two days later, on September
12, OSHA obtained from a magistrate judge in the Eastern District of Texas a
warrant "authoriz[ing][OSHA]to inspect and perform heat sampling and testing of
delivery truck(s) originating from" a UPS worksite in McKinney, Texas. D.I. 22-2
at 26. When OSHA attempted to enforce that warrant on September 17, UPS
reiterated its objection to OSHA conducting temperature readings while its drivers
operated vehicles on public roads. D.I. 22-2 at 72-73.
Hours later, still on September 17, UPS initiated this action by filing a
Complaint for Declaratory and Emergency Injunctive Relief. D.I. 1. UPS seeks by
the Complaint an order that "temporarily, preliminarily, and permanently enjoins"
OSHA from enforcing or renewing existing inspection warrants or moving for new
administrative warrants that allow OSHA to "install one or more QUESTemp 34
area heat stress monitors in UPS's commercial motor vehicles and then enter those
Case 1:24-cv-01036-CFC Document 32 Filed 03/26/26 Page 7 of 21 PageID #:
<pageID>

trucks and check those monitors throughout the day while UPS drivers are on their
routes." D.L 111. That same day, UPS also filed a motion for a temporary
restraining order and preliminary injunction. D.I. 3. I denied UPS's motion for a
TRO on September 23 because UPS "ha[d] not demonstrated an imminent harm or
emergent circumstance that would justify the issuance of the extraordinary remedy
of a temporary restraining order without hearing from Defendants." D.I. 11 at 1. I
set that day a hearing date ofNovember 13, 2024 for UPS's preliminary injunction.
On September 26, the Texas warrant expired without OSHA ever having
installed heat monitoring equipment in UPS's trucks.
On October 29, UPS withdrew its motion for a preliminary injunction
"principally because Defendants have represented, through counsel, that:(1)since
September 26, 2024,'OSHA has not applied for warrants seeking to monitor for
heat stress in UPS trucks anywhere in the country;' and,(2)Defendants have 'no
present intention' to renew the [August 30, 2024 Delaware warrants] or obtain a
[sjimilar [wjarrant." D.I. 17 at 1-2.
On November 22, 2024, UPS filed the pending motion, seeking three forms
of relief:(1) a peraianent injunction that prevents the government from "moving
for or seeking to obtain from any U.S. District Court an administrative warrant that
would allow OSHA to install one or more QUESTemp 34 area heat stress monitors
in UPS's commercial motor vehicles and then enter those trucks and check those
7
Case 1:24-cv-01036-CFC Document 32 Filed 03/26/26 Page 8 of 21 PageID #:
<pageID>

monitors throughout the day while UPS drivers are on their routes";(2) a
permanent injunction that restrains the government from "seeking to enforce any
[ijnspection [wjarrant that has already been issued"; and (3) a declaration "that
OSHA does not have statutory authority to inspect UPS's commercial motor
vehicles while in operation on the road." D.I. 20-1 at 1-2. The government argues
that I lack subject matter jurisdiction to entertain the motion. (The government has
not moved pursuant to Federal Rule of Civil Procedure 12(b)(1) to dismiss the
action for lack of subject matter jurisdiction.)
11.
Article 111 of the Constitution "extend[s]" the "judicial Power" of the federal
government only to "Cases" and "Controversies." U.S. Const, art. Ill, § 2; Lujan v.
Defs. of Wildlife, 504 U.S. 555, 559(1992). For that reason,"[a] claim is not
amenable to the judicial process when it is filed too early (making it unripe), when
it is filed too late (making it moot)[,] or when the claimant lacks a sufficiently
concrete and redressable interest in the dispute (depriving the plaintiff of
standing)." Warshak v. United States, 532 F.3d 521, 525 (6th Cir. 2008)(internal
quotation marks, citation, and alteration omitted); see also DaimlerChrysler Corp.
V. Cuno, 547 U.S. 332, 335(2006)("The doctrines of mootness[][and]
ripeness, ... originate in Article Ill's 'case' or 'controversy' language, no less
than standing does.").
8
Case 1:24-cv-01036-CFC Document 32 Filed 03/26/26 Page 9 of 21 PageID #:
<pageID>

Standing, ripeness, and mootness overlap. See Trump Hotels & Casino
Resorts, Inc. v. Mirage Resorts Inc., 140 F.3d 478,484 n.7(3d Cir. 1998)("The
constitutional dimensions of the standing question bear a close relationship to the
questions of ripeness and mootness."); Airline Pros. Ass'n ofInt'l Bhd. of
Teamsters, Loc. Union No. 1224 v. Airborne, Inc., 332 F.3d 983, 988 (6th Cir.
2003)("There is unquestionably some overlap between ripeness and standing.
When the injury alleged is not actual but merely threatened, standing and ripeness
become more difficult to distinguish.")(citation omitted); In re Methyl Tertiary
Butyl Ether(MTBE)Prods. Liab. Litig., 725 F.3d 65, 110(2d Cir. 2013)("[T]he
ripeness doctrine overlaps with the standing doctrine, most notably in the shared
requirement that the plaintiffs injury be imminent rather than conjectural or
hypothetical.")(quotation marks and citation omitted); Lutter v. JNESO,86 F.4th
111, 130(3d Cir. 2023)("[Mjuch of the mootness analysis parallels the tripartite
standing test in that a prerequisite for mootness is the loss of standing during the
pendency of the litigation."). All three jurisdictional doctrines are implicated here.
And as UPS is the party seeking to invoke the subject-matter jurisdiction of this
Court, it has the burden of establishing that it has standing and that its claims are
ripe and not moot. See Kokkonen v. Guardian Life Ins. Co. ofAm.,511 U.S. 375,
377(1994)("Federal courts are courts of limited jurisdiction .... It is to be
presumed that a cause lies outside this limited jurisdiction, and the burden of
Case 1:24-cv-01036-CFC Document 32 Filed 03/26/26 Page 10 of 21 PageID #:
<pageID>

establishing the contrary rests upon the party asserting jurisdiction.")(citations
omitted).
Standing is "an essential and unchanging part" of the case-or-controversy
requirement. Lujan, 504 U.S. at 560. "Only a party with standing can invoke the
jurisdiction of the federal courts." Const. Party ofPa. v. Aichele, 757 F.3d 347,
357(3d Cir. 2014). To meet the standing requirement, a plaintiff must allege a
"personal injury fairly traceable to the defendant's allegedly unlawful conduct and
likely to be redressed by the requested relief." Allen v. Wright, 468 U.S. 737, 751
(1984). The personal injury must be "an invasion of a legally protected interest
which is (a) concrete and particularized and (b) actual or imminent, not conjectural
or hypothetical." Lujan, 504 U.S. at 560(quotation marks and citations omitted).
"Ripeness detemiines when a proper party may bring an action." Travelers
Ins. Co. V. Obusek, 72 F.3d 1148, 1154(3d Cir. 1995)(quotation marks and
citation omitted). The ripeness doctrine exists "to prevent federal courts 'through
avoidance of premature adjudication, from entangling themselves in abstract
disagreements.'" Id. {(\uotmg Abbott Labs. v. Gardner, 387 U.S. 136, 148 (1967)).
Ripeness requires a district court "to evaluate both the fitness ofthe issues for
judicial decision and the hardship to the parties of withholding court
consideration." Texas v. United States, 523 U.S. 296, 300-01 (1998)(quotation
marks and citation omitted).
10
Case 1:24-cv-01036-CFC Document 32 Filed 03/26/26 Page 11 of 21 PageID #:
<pageID>

"Mootness""presents questions at the opposite end of the timing spectrum
from ripeness." Charles H. Koch, Jr. & Richard Murphy,4 Admin. L. & Prac.
§ 13:30(3d ed.). "A [claim] becomes moot—and therefore no longer a 'Case' or
'Controversy' for purposes of Article III—'when the issues presented are no longer
"live" or the parties lack a cognizable interest in the outcome.'" Already, LLC v.
Nike, 568 U.S. 85, 91 (2013)(citation omitted).
III.
Standing, ripeness, and mootness turn on the relief sought. See Friends of
the Earth, Inc. v. Laidlaw Env't Servs. (TOG), Inc., 528 U.S. 167, 185 (2000)("[A]
plaintiff must demonstrate standing separately for each form of relief sought.");
United States v. Jimenez, 168 F.4th 118, 132(2d Cir. 2026)("[Rjipeness is an
issue-specific inquiry."); Huawei Techs. USA, Inc. v. FCC,2 F.4th 421,434 n.27
(5th Cir. 2021)("We assess ripeness claim by claim."); Road-Con, Inc. v. City of
Phila., 120 F.4th 346, 356(3d Cir. 2024)("Mootness, like standing, tums on the
relief sought."). I agree with the govemment that I lack subject matter jurisdiction
over all three claims for relief sought by UPS's motion.
11
Case 1:24-cv-01036-CFC Document 32 Filed 03/26/26 Page 12 of 21 PageID #:
<pageID>

A.
UPS's request for a permanent injunction precluding OSHA from
"obtain[ing] from any U.S. District Court an administrative warrant that would
allow [it] to install one or more QUESTemp 34 area heat stress monitors in UPS's
commercial motor vehicles and then enter those trucks and check those monitors
throughout the day while UPS drivers are on their routes" is premature (unripe)
and would not address an actual or imminent alleged hann necessary for UPS to
have standing. For UPS to suffer the alleged harm it complains of numerous future
events would have to occur:(1)UPS would have to fail to address excessive heat
hazards in its delivery trucks;(2)UPS employees would have to suffer from severe
heat stress while operating UPS trucks on public roads;(3)reports of UPS
employees suffering from severe heat stress while operating UPS trucks on public
roads would have to come to OSHA's attention;(4) OSHA would have to decide
that the reports of these heat stress injuries justified an application for an inspection
warrant;(5) a federal magistrate judge would have to determine that probable
cause exists to conduct such an inspection; and (6)the magistrate judge would
have to issue a warrant that authorized OSHA to install a heat sampling monitor in
a UPS truck and to enter that truck and check the monitor throughout the day while
a UPS driver drove the truck on her route. This sixth event is particularly
noteworthy because neither of the August 30, 2024 Delaware warrants authorized
12
Case 1:24-cv-01036-CFC Document 32 Filed 03/26/26 Page 13 of 21 PageID #:
<pageID>

OSHA to install a heat sampling monitor in a UPS truck, let alone to enter a UPS
truck and check the monitor throughout the day when the truck was not on a UPS
worksite.
UPS argues that "OSHA's refusal to disavow that it will inspect UPS's
[trucks].. . weighs heavily in favor of finding that the injury is imminent." D.I. 25
at 6. In support of this argument, it cites Greenberg v. Lehocky, 81 F.4th 376(3d
Cir. 2023). The Third Circuit held in Greenberg that "[cjourts often determine that
there is a credible threat of[enforcement]" when the government refuses to
disavow future enforcement efforts. Id. at 386. In this case,"OSHA has not
assured UPS that it will never seek to obtain and enforce a warrant seeking to
conduct heat monitoring in UPS package trucks at some point in the future if new
facts arose that would establish administrative probable cause." D.I. 24 at 6. But
the problem with UPS's imminence argument is that UPS has not alleged, let alone
adduced evidence to show, when or how OSHA will learn offacts establishing
probable cause to obtain a warrant authorizing it to install a heat sampling monitor
in a UPS truck and enter that truck and check the monitors throughout the day
while UPS drivers are on their routes.
Because UPS's claim for an injunction against future warrants "rests upon
contingent future events that may not occur as anticipated, or indeed may not occur
at all," it is "not ripe for adjudication." Texas, 523 U.S. at 300(quotation marks
13
Case 1:24-cv-01036-CFC Document 32 Filed 03/26/26 Page 14 of 21 PageID #:
<pageID>

and citation omitted). And because UPS has offered no evidence to show that
those future events are imminent and not conjectural or hypothetical, it lacks
standing to seek an injunction precluding OSHA from seeking warrants in the
future. Lujan, 504 U.S. at 560. The fact that UPS's motion has been pending since
November 22, 2024, including through the summer of 2025, and OSHA has yet to
apply for a warrant to install a heat monitoring device in a UPS truck further
confirms that UPS's allegations about the potential for future warrants are
conjectural and hypothetical.'
B.
UPS's request for a permanent injunction that restrains the government from
seeking to enforce "any [ijnspection [wjarrant that has already been issued" is
moot because the Delaware and Texas warrants long ago expired.
As best I can tell, UPS argues that this case, and thus this claim for relief, is
not moot because the voluntary cessation exception to mootness applies. See D.I.
25 at 8. "One seenario in which [courts] are reluctant to declare a case moot is
when the defendant argues mootness because ofsome action it took unilaterally
after the litigation began. This situation is often called '[vjoluntaiy cessation,' and
it will moot a case only if it is absolutely clear that the allegedly wrongful behavior
could not reasonably be expected to recur." Hartnett v. Pa. State Educ. Ass'n, 963
F.3d 301, 306(3d Cir. 2020)(alteration in original)(citations and quotation marks
14
Case 1:24-cv-01036-CFC Document 32 Filed 03/26/26 Page 15 of 21 PageID #:
<pageID>

omitted). According to UPS,"Defendants' 'voluntary cessation of[inspecting
UPS's trucks] does not moot[UPS's] claims for prospective relief because
Defendants have not met 'the heavy burden of establishing that there is no
reasonable expectation that the wrong will be repeated.'" D.I. 25 at 8 (alterations
in original)(citation omitted).
The voluntary cessation exception, however, does not apply here because the
inspection warrants that UPS seeks to prevent the government from enforcing
expired by their own terms and not due to any action by OSHA. See Cnty. of
Butler V. Governor ofPa., 8 F.4th 226, 230(3d Cir. 2021)("[T]he voluntary
cessation doctrine does not apply here because the orders expired by their own
terms ...."); Trump v. Hawaii, 583 U.S. 941 (2017)(explaining that because
orders had "expired by their own tenns[,] the appeal no longer present[ed] a live
case or controversy")(citation and quotation marks omitted). UPS argues that
Butler and Trump "are inapposite because th[e] defendants [in those cases] no
longer had the legal authority to act," and that in this case "OSHA ... maintains
that it has legal authority to inspect UPS's trucks" and "can thus return to its old
ways, meaning an active controversy exists." D.I. 25 at 8-9 (brackets, quotation
marks, and citation omitted). But in point of fact, OSHA does not claim, and has
never claimed, that it has the legal authority to inspect UPS's trucks without a
15
Case 1:24-cv-01036-CFC Document 32 Filed 03/26/26 Page 16 of 21 PageID #:
<pageID>

warrant issued by a court. OSHA must seek warrants, supported by probable
cause, if it wishes to inspect UPS's trucks.
Accordingly, UPS's motion is moot to the extent it seeks a permanent
injunction that bars OSHA from "seeking to enforce any [ijnspection [w]arrant that
has already been issued."
C.
As with UPS's first request for relief, its request for a declaration that OSHA
lacks statutory authority to inspect UPS's trucks while in operation on the road is
not ripe for adjudication and would not address an actual or imminent alleged harm
necessary for UPS to have standing.
UPS insists that its request for this declaration "does not depend on any
future contingent events" because when OSHA obtained and tried to enforce the
Delaware and Texas warrants it "exceeded its statutory authority, acted ultra vires,
and violated the [OSH] Act." D.I. 28 at 1. UPS, however, cannot rely solely on
OSHA's past actions to establish that it has standing to pursue declaratory relief.
As the Third Circuit held in Yaw v. Del. River Basin Comm.'n:
When a plaintiff seeks retrospective (backward-looking)
relief in the form of money damages, [it] can establish
standing through evidence of a past injury. But when a
plaintiff seeks prospective (forward-looking) relief in the
form of... a declaratory judgment,[it] must show that [it
is] likely to suffer future injury. The future injury must
also be imminent, meaning that it is certainly impending
rather than just merely possible.
16
Case 1:24-cv-01036-CFC Document 32 Filed 03/26/26 Page 17 of 21 PageID #:
<pageID>

49 F.4th 302, 318-19(3d Cir. 2022)(footnotes, quotation marks, and emphasis
omitted). Accordingly, to establish it has standing to pursue its claim for
declaratory relief, UPS cannot rely solely on OSHA's past actions; it must instead
show that it is "likely to suffer future injury" and that this future injury is
"imminent." And, as discussed above in connection with UPS's first claim for
injunctive relief, UPS has not shown that OSHA's obtaining a new warrant from a
magistrate judge to install a heat monitor in a UPS truck is imminent.
UPS also says that "the law and undisputed facts show[] UPS was subjected
to an unauthorized search that imposed more than a minimal burden on it in
violation of the OSH Act, an injury sufficient to confer standing on it." D.I. 28
at 3. This argument, however, relies on a faulty factual premise. As UPS's
counsel admitted at oral argument, OSHA never installed temperature tracking
devices in UPS's vehicles to monitor its drivers while on public roads:
THE COURT: And just to be clear, of the three prior
instances, in no instance ofthe three were the heat devices
actually installed in the trucks, correct?
MR. BRIGHAM: Only because we sought redress from
the Court, Your Honor.
1.22.25 Tr.(docketed as D.I. 26)31:6-10. Thus, UPS was not subject to the only
search that it claims was unauthorized—^the installation of temperature tracking
17
Case 1:24-cv-01036-CFC Document 32 Filed 03/26/26 Page 18 of 21 PageID #:
<pageID>

devices to monitor its drivers' working conditions on public roads. Accordingly,
UPS has not suffered an injury sufficient to confer standing.
Even if UPS had standing, it has not shown that its claim for declaratory
relief is ripe for review. To decide whether a claim for declaratory relief is ripe,
the Third Circuit employs a three-factor test first articulated in Step-Saver Data
Systems, Inc. v. Wyse Technology, 912 F.2d 643(3d Cir. 1990). Plains All Am.
Pipeline L.P. v. Cook, 866 F.3d 534, 539^0(3d Cir. 2017). Under the Step-Saver
test, courts consider(1)the adversity of the parties' interests,(2)the
conclusiveness of the judgment, and (3)the praetical help, or utility, of the
judgment. Step-Saver, 912 F.2d at 647.
UPS fails the first prong of the Step-Saver test. "Parties' interests are
adverse where hann will result if the declaratory judgment is not entered."
Obusek, 72 F.3d at 1154. "Where the plaintiffs action is based on a contingency,
it is unlikely that the parties' interests will be suffieiently adverse." Armstrong
World Indus., Inc. by Wolfson v. Adams,961 F.2d 405,411 (3d Cir. 1992). Here,
as discussed above, the threatened unauthorized inspection UPS seeks to have
declared unlawful rests on a chain of speculative events that are far from certain to
occur and indeed may never materialize. In short, UPS has not shown that a threat
of an alleged unauthorized search "is real and substantial,[and]'of sufficient
immediacy and reality to warrant the issuance of a declaratory judgment.'"
18
Case 1:24-cv-01036-CFC Document 32 Filed 03/26/26 Page 19 of 21 PageID #:
<pageID>

Salvation Army v. Dep 't ofCmty. Affs., 919 F.2d 183, 192(3d Cir.1990)(quoting
Stejfelv. Thompson,415 U.S. 452, 460(1974)).
IV.
For the reasons discussed above, I will deny UPS's motion for summary
judgment because I lack subject matter jurisdiction over it.
The Court will issue an Order consistent with this Memorandum Opinion.
'There are many reasons why I have not addressed UPS's motion until today. I
will say a word about a few ofthem.
For starters, UPS filed its motion more than two months after the Delaware
warrants had expired and fifty-seven days after the Texas warrant had expired, and
OSHA had not sought any new inspection warrants after the Texas warrant expired.
On the day it filed the motion—^November 22, 2024—^the high temperature in
Dover, Delaware,(the nearest city to Harrington that the National Weather Service
publishes temperature records for) was fifty-five degrees Fahrenheit and the low
temperature was thirty-six degrees. Nat'l Weather Serv., Almanacfor Dover, DE
November 22, 2024 (last accessed March 26, 2026)
https://www.weather.gov/wrh/Climate?wfo=phi [https://perma.cc/B48L-NNEM].
The temperature in McKinney, Texas that day ranged between thirty-six and sixty-
seven degrees Fahrenheit. Nat'l Weather Serv., Almanacfor McKinney Municipal
AP, TXNovember 22, 2024 (last accessed March 26, 2026)
https://www.weather.gov/wrh/Climate?wfo=fwd [https://perma.cc/V88K-EVKR].
Thus, there was at the time the motion was filed no imminent threat of heat
exhaustion to UPS drivers in the relevant geographic regions and, accordingly, no
likelihood that OSHA would seek or that a magistrate judge would issue a warrant
authorizing OSHA to install heat monitors in UPS trucks.
The motion was filed seventeen days after Donald Trump was elected President,
briefing on the motion was completed on December 23, and I held oral argument
on the motion on January 22, 2025, two days day after President Trump's
19
Case 1:24-cv-01036-CFC Document 32 Filed 03/26/26 Page 20 of 21 PageID #:
<pageID>

inauguration. In the applications for the Delaware warrants, OSHA had stated that
"the heat stress hazards alleged in the [employer-]referrals [that had prompted
OSHA's investigation of UPS][we]re the subject of a National Emphasis Program"
and that "[ajccordingly, the conditions alleged in the referrals are sufficient to
establish administrative probable cause to believe that violations of the [OSH]Act
occurred at the workplace and that the regulations enforced pursuant to the Act
exist at the workplace." D.I. 22-2 at 35; D.I. 22-2 at 48. The National Emphasis
Program was issued in "response to President Biden's Executive Order(EG)
14008,'Tackling the Climate Crisis at Home and Abroad.'" D.I. 25-1 at 9. On
January 16, 2025, the Biden Administration issued a notice extending the National
Emphasis Program "until April 8, 2026, or until superseded by an updated
directive." D.I. 28-1 at 3. Four days later, on President Trump's first day in office,
he issued EO 14148,"Initial Recissions of Harmful Executive Orders and
Actions." See Exec. Order No. 14148, 90 Fed. Reg. 8237 (Jan. 20, 2025).
EO 14148 revoked several executive orders, including EO 14008, and instructed
the "Director of the Domestic Policy Council(DPC)and the Director of the
National Economic Council(NEC)[to] review all Federal Government actions
taken pursuant to" the revoked orders and to "take necessary steps to rescind,
replace, or amend such actions as appropriate." See id. Thus, EO 14148's
revocation ofthe National Emphasis Program provided an additional reason to
believe that UPS's motion did not present a live controversy amendable to judicial
process under Article III.
UPS said nothing at the January 22 oral argument to persuade me that its motion
presented a justiciable dispute. And by then, we were in the middle of winter. I
decided to sit tight until the weather wanned to see if OSHA would try again to
install heat monitors in UPS trucks. It apparently did not. Summer came and went
without any word from UPS of its drivers suffering from heat exhaustion or of
OSHA seeking to obtain or enforce an inspection warrant for a UPS truck. At that
point, there being no doubt that this case has never presented an emergency,I
moved the motion to the bottom of the pile of the 150 or so motions I am tasked
with deciding every six months.
20
Case 1:24-cv-01036-CFC Document 32 Filed 03/26/26 Page 21 of 21 PageID #:
<pageID>