Tuesday, May 5, 2020
In what for me is an ominous development the Smithfield Foods public nuisance case, about which I blogged below, has been summarily denied by a Missouri federal district court and the case has been dismissed.The decision took all of twelve days. In a nutshell, the court accepted the primary jurisdiction arguments that I have previously discussed, but will not repeat here. Sometimes cases are illustrative of clear legal principles. This, for me, is not one of those cases. Sometimes cases set “mood points.” And I fear that is the situation here. I have great concern about the prospect for an unreflective, anti-liability fervor enveloping the Great Reopening, though this decision did not directly reach questions of liability that could impact state workers’ compensation or tort law. Narrowly read, the heart of the case is simply that the court thought it should not interfere with OSHA or the USDA:
. . . OSHA has already requested information about the Plant’s safety measures. And if OSHA fails to act quickly on this information, Plaintiffs have a remedy: they may receive emergency relief through OSHA’s statutory framework. Section 662(a) of the Occupational Safety and Health Act . . . permits the Secretary of Labor to petition the court “to restrain any [dangerous] conditions or practices in any place of employment . . . 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 [the Act].” Upon the filing of such petition, “the district court shall have jurisdiction to grant such injunctive relief or temporary restraining order pending the outcome of an enforcement proceeding.” . . . If the Secretary “arbitrarily or capriciously fails to seek relief,” a worker can file a writ of mandamus to compel the Secretary to seek such an order . . . Granted, there may be some delay before Plaintiffs can invoke this procedure, but following this procedure ensures the USDA and OSHA can take a measured and uniform approach to the meat-processing plants under its oversight. The Court’s intervention at this point, on the other hand, would only risk haphazard application of the Joint Guidance. In sum, the Court holds that the issue of Smithfield’s compliance with OSHA’s guidelines and regulations falls squarely within OSHA/USDA’s jurisdiction. The Court finds dismissal without prejudice is preferable to a stay here so that Plaintiffs may seek relief through the appropriate administrative and regulatory framework.
The precise problem, of course, is that the Secretary of Labor is unlikely to petition the court “to restrain any [dangerous] conditions or practices . . .” And, yes, there “may” be “some delay” before a worker could pursue a writ of mandamus—such significant delay that the suggestion borders on the detached and unserious since workers are in hot spots now. I suspect I am not alone in failing to anticipate on the horizon the White Horses of OSHA and the USDA.
I tend to think of worker protections as front-end (regulatory) or back-end (compensatory, including tort law and workers’ compensation). The front-end here may be hopelessly tied up in various doctrines of empty-preemption and awaiting the action of inactive agencies. (Waiting for Godot?). (Granted the dismissal was "without prejudice," but I suspect courts will keep waiting). It is terrifying to contemplate the back-end somehow being obstructed by the Defense Production Act (or something worse from Congress). Although the court did opine that plaintiffs were, in any event, unlikely to prevail on the state public nuisance claim, I am not sure what comfort one can take from that determination, or whether a contrary conclusion on that issue would have changed the ultimate outcome. Perhaps it is no surprise that the article I have just had accepted by a law review is about the law of work stoppages, including the right of both union and non-union employees to act concertedly for their “mutual aid or protection.”
Michael C. Duff