Pub. Citizen Health Research Grp. v. Pizzella

• Citation: 513 F.Supp.3d 10
• Decision Date: 11 January 2021
• Docket Number: Civil Action Nos. 19-621 (TJK),Civil Action No. 19-166 (TJK)
• Parties: PUBLIC CITIZEN HEALTH RESEARCH GROUP et al., Plaintiffs, v. Patrick PIZZELLA et al., Defendants. State of New Jersey et al., Plaintiffs, v. Patrick Pizzella et al., Defendants.
• Court: U.S. District Court — District of Columbia

513 F.Supp.3d 10

PUBLIC CITIZEN HEALTH RESEARCH GROUP et al., Plaintiffs,

v.Patrick PIZZELLA ¹ et al., Defendants.

State of New Jersey et al., Plaintiffs,

v.Patrick Pizzella et al., Defendants.

Civil Action No. 19-166 (TJK)

Civil Action Nos. 19-621 (TJK)

United States District Court, District of Columbia.

Signed January 11, 2021

Allison Marcy Zieve, Michael T. Kirkpatrick, Public Citizen Litigation Group, Washington, DC, for Plaintiffs.

Michael Hendry Baer, U.S. Department of Justice, Washington, DC, for Defendants.

MEMORANDUM OPINION

TIMOTHY J. KELLY, United States District Judge

To improve the collection of work-related injury data, the Occupational Safety and Health Administration, a component of the Department of Labor, requires qualifying employers to record work-related injuries and illnesses on three standardized forms. At first, OSHA only occasionally collected these forms from employers, either during on-site inspections or as part of broader industry surveys. But in May 2016, OSHA issued a new rule requiring employers to submit them electronically each year.

But before the first filing deadline, OSHA announced that employers would be required only to submit one of the three forms, and it began a rulemaking to formalize this change. And on January 25, 2019, OSHA issued a final rule titled "Tracking of Workplace Injuries and Illnesses." The rule rescinded portions of the 2016 rule, reverting to occasional collection of two of the forms and continuing the annual, electronic collection of the third.

In response, two sets of plaintiffs, one a group of public health organizations and the other a series of states, filed related lawsuits, claiming that OSHA's rulemaking violated the Administrative Procedure Act because it is arbitrary and capricious. Plaintiffs in both cases moved for summary judgment. Defendants moved to dismiss the public health organizations’ suit for lack of subject-matter jurisdiction and cross-moved for summary judgment in the suit brought by the states. For the reasons explained below, the Court will grant Defendants’ motion to dismiss the public health organizations’ suit for lack of subject-matter jurisdiction because those plaintiffs have not suffered the required injury to support standing, and grant Defendants’ cross-motion for summary judgment in the states’ suit because the rule is neither arbitrary nor capricious.

I. Background

A. Statutory and Regulatory Background

1. The OSH Act

The Occupational Safety and Health Act, 29 U.S.C. § 651 et seq. (the "OSH Act") authorizes the Secretary of Labor to promulgate regulations that require employers to "make, keep and preserve, and make available to the Secretary," occupational health records. Id. § 657(c)(1); see also id. § 657(c)(2) (authorizing the Secretary to issue regulations requiring employers to "maintain accurate records of, and to make periodic reports on, work-related deaths, injuries and illnesses"). The Act also provides that, "the Secretary ... shall develop and maintain an effective program of collection, compilation, and analysis of occupational safety and health statistics." Id. § 673(a).

Under this authority, the Occupational Safety and Health Administration ("OSHA") requires employers with more than 10 employees to complete three forms documenting workplace injury and illness. First, Form 300, "Log of Work-Related Injuries and Illnesses," is an annual incident log that contains basic information about each incident. Form 301, "Injury and Illness Incident Report," provides more narrative details for each incident. Finally, Form 300A, "Summary of Work-Related Injuries and Illnesses," is an annual summary of all logged incidents. See 29 C.F.R. § 1904.29. Historically, employers submitted these forms only upon request, typically during workplace inspections or through industry-specific surveys.

2. The Electronic Filing Rule

In May 2016, OSHA promulgated a rule ("the Electronic Filing Rule") requiring employers with 250 or more employees to electronically submit all three forms annually. See Improve Tracking of Workplace Injuries and Illnesses, 81 Fed. Reg. 29,624 (May 12, 2016). The rule also required that in certain industries, employers with only 20 or more employees must annually submit Form 300A. See id. The rule's preamble specified that collected data would be published to OSHA's website. Id. at 29,625. OSHA thus determined that with "the information obtained through this final rule, employers, employees, employee representatives, the government, and researchers may be better able to identify and mitigate workplace hazards and thereby prevent worker injuries and illnesses." Id. at 29,629. The Electronic Filing Rule noted that all data from Form 300A could be made available, but to protect worker privacy, certain personally identifiable information (PII) would need to be redacted before publishing Forms 300 and 301. Id. at 29,632. The rule also noted that software would be used to eliminate PII from the published forms. Id.

OHSA intended the Electronic Filing Rule to come into effect over several years. And the first deadline—July 1, 2017—would only require employers to submit Form 300A for calendar year 2016. 81 Fed. Reg. at 29,640. But on June 28, 2017, shortly before this first filing deadline, OSHA issued a notice of proposed rulemaking (NPRM) to delay the deadline. See Improve Tracking of Workplace Injuries and Illnesses: Proposed Delay of Compliance Date, 82 Fed. Reg. 29,261 (proposed June 28, 2017). And in November, OSHA published a final rule delaying the first deadline until December 15, 2017. See Improve Tracking of Workplace Injuries and Illnesses: Delay of Compliance Date, 82 Fed. Reg. 55,761 (November 24, 2017). Then, in May 2018—after the first filing deadline had passed—OSHA posted an announcement on its website, specifying that again for 2017, employers would be expected only to provide Form 300A. Civil Action No. 19-166, ECF No. 1 ("Public Health Pls. Compl."), ¶ 22. The announcement also informed the public that OSHA was not accepting Forms 300 and 301 and would issue a NPRM to reconsider, revise, or remove provisions of the Electronic Filing Rule. Id.

On July 30, 2018, OSHA issued a NPRM for a rule that would rescind the electronic filing requirements for Forms 300 and 301. See Tracking of Workplace Injuries and Illnesses, 83 Fed. Reg. 36,494 (proposed July 30, 2018). OSHA proposed the continued electronic collection of Form 300A, the summary form, but a return to only occasional collection of Forms 300 and 301. OSHA cited several justifications for the proposed rule change: risks to worker privacy, the relative uncertainty of the benefits that the data in Forms 300 and 301 may provide, and the opportunity cost of diverting limited resources from other enforcement efforts. Id. OSHA also raised several issues for the public to address during the comment period, including the efficacy of the software intended to remove PII from these forms. Id. at 36,505.

3. The Revised Rule

On January 25, 2019, OSHA issued its Final Rule ("the Revised Rule") formally rescinding the requirement for electronic submission of Forms 300 and 301 but leaving in place the requirement to submit form 300A. See Tracking of Workplace Injuries and Illnesses, 84 Fed. Reg. 380 (January 25, 2019). As the basis for the Revised Rule, OSHA cited worker privacy and the resources necessary to avoid accidental disclosure of workers’ PII. OSHA noted that while none of the forms request PII, such information is sometimes inadvertently included alongside the requested information. Id. at 384. And OSHA also determined that automated PII-stripping software could not adequately protect worker privacy. Instead, OSHA concluded, its collection of Forms 300 and 301 would require a manual review process to eliminate PII and other contextual information that might allow the re-identification of impacted workers. Id. at 392. And even if it employed a costly manual screening process to remove PII, OSHA noted that it was possible that workers still could be reidentified. Id. at 384.

Alongside these costs, OSHA also concluded that third-party entities would not benefit from continued form collection because the data would not be published. Id. at 391 (noting OSHA had previously "determined publishing the data would do more harm than good" and did not intend to release it.). OSHA also contended that the "data from Forms 300 and 301 would be exempt from disclosure under FOIA exemptions." Id. at 383. OSHA acknowledged that it may have to release information due to FOIA requests but suggested that any resulting benefits are "uncertain." Id. Beyond the lack of benefits to outside entities, the Revised Rule also concluded that any benefits to OSHA itself are "uncertain." It noted that OSHA has "no prior experience" using the data collected in Forms 300 and 301 and is "unsure how much benefit such data would have for [enforcement and outreach] purposes." Id. at 388. And it discussed OSHA's experience using the data collected from Form 300A for enforcement purposes. Id. In the end, OSHA "determined that the best use of the agency's resources at this time is full utilization of 300A and severe injury data, ... especially when OSHA itself will continue to protect workers by accessing Forms 300 and 301 through on-site inspections and for specific enforcement actions as needed." Id. at 391. As a result, OSHA decided to cease electronic collection of Forms 300 and 301 and instead direct resources towards "enforcement efforts and compliance assistance, rather than collecting data with uncertain benefits." Id. at 393.

B. Plaintiffs’ Lawsuits

In Public Citizen Health Research Group, et al. v. Pizzella , 19-cv-166, plaintiffs are three public-health advocacy groups: Public Citizen Health Research Group, the American Public Health Association, and the Council of State and Territorial Epidemiologists (collectively, the "Public Health Plaintiffs"). The Public Health Plaintiffs assert...