Tardy Comment on Dismissal of Amazon Covid-Related Public Nuisance Case in New York

On November 1, Federal District Court Judge Cogan, of the Eastern District Court of New York, dismissed the public nuisance suit filed against Amazon in connection with its alleged unhealthy operation of the JFK8 Fulfillment Center in the context of Covid-19. I think I pretty accurately predicted the way the case would unfold in my blogpost on the dispute back on June 6. It seems clear that federal courts will reflexively defer to federal enforcement agencies, even if it is plain as the nose on your face that the agencies are not doing anything (or are doing very little). As the court noted, “The doctrine of primary jurisdiction seeks to maintain a proper balance between the roles of courts and administrative agencies.” The primary jurisdiction rationale is that courts should rely on “agency expertise.” The court went on to note that OSHA, “has the primary responsibility for setting and enforcing standards and providing research, information, education, and training to assure safe and healthful working conditions. OSHA has broad prosecutorial discretion to carry out its enforcement responsibilities under the Occupational Safety and Health Act . . .”

Thus far, only boilerplate; for the problem arises (as so often is the case in administrative law) when the agency is transparently not applying its expertise. Next, the decision moves into a phase of argument reducible to, just because the agency has not issued a Covid-19 standard does not mean it is not doing something; in fact, it did something when it decided to do nothing. (I sigh and recall Voltaire’s Dr. Pangloss). Next, the court reminds us that courts are not expert in workplace safety matters (see page 11 of the decision). But the question is whether a court trying to do something could do a better job than an agency ideologically committed to doing nothing. This is the elephant in the room. (I feel compelled to add that when I was a blue collar worker I was deeply skeptical about what OSHA was willing to do on its best days. I wonder how that question would be answered within the general community of workers if OSHA fines were expressed not in dollar amounts but as a percentage of the daily operating profit of the offending company. I think I know, but I apologize for digressing to the real point).

I will not go through the opinion line by line but I did want to mention for this audience that I said in my blog post of June 6: I suspect that the public nuisance claims of employees may eventually be barred by operation of the exclusive remedy rule. The court did not even go as far into the analysis as I thought it might.

First, the court said that “[b]oth plaintiffs’ concern and their risk [of being harmed by Covid] present a difference in degree, not kind, from the injury suffered by the public at large and thus is not actionable in a private action for public nuisance.” But even if a public nuisance claim were available, continued the court:  

The New York Court of Appeals has not considered whether the Workers’ Compensation Law’s exclusivity provision preempts a suit for injunctive relief. But the broad language of the exclusivity provision and the trade-offs embodied in the law compel me to conclude that the Workers’ Compensation Law bars plaintiffs’ . . . claim to the extent it is based on past harm. The “Labor Law codification of the requirement to provide a safe place to work does not overrule, and indeed, is subject to the exclusivity provisions of the Workers’ Compensation Law.” . . .  The exclusivity provision broadly states that the workers’ compensation scheme serves “in place of any other liability whatsoever” for an employer to an employee . . . It is difficult to imagine a broader phrase than “any other liability whatsoever.” If “liability” was not intended to include injunctive relief, as plaintiffs argue, then the statute easily could have substituted that word with “monetary damages,” “payment of compensation” or some other phrase. As plaintiffs note, the provision also discusses “damages, contribution or indemnity” and “compensation.” But the statute uses the broad word “liability” within an even broader phrase, and so I must conclude that it was intended to cover suits for injunctive relief in addition to suits for damages. This reading is further supported by the nature of the trade-offs embodied in the law. “Fixed compensation is guaranteed to the injured employee regardless of fault and in exchange for reducing the costs and risks of litigation to the parties.” . . . In exchange for the “security” of receiving fixed benefits, “the employee has been asked to pay a price in the form of the loss of his common-law right to sue his employer in tort.” . . . The purpose of the law therefore is not just to provide a mechanism for compensation, but also to protect employers from suit . . . Allowing plaintiffs to avoid preemption by seeking only injunctive relief would thwart the purposes of the statute and the trade-offs embodied in it.

One might criticize the federal court’s sojourn into New York state law to answer an undecided question (under state law) once it had reached an adequate ground of decision on federal primary jurisdiction. It is also curious why the court considered the question of whether public nuisance claims are subject to workers’ compensation exclusivity. After all, the court concluded there was no public nuisance. Why go further? But then, after going further, the court does not really address the critical question. As the court observes, the workers’ compensation scheme serves “in place of any other liability whatsoever” for an employer to an employee. The question is whether legislatures ever considered imposition of injunctive relief as a “liability” to which workers’ compensation exclusivity applies. As the decision implicitly acknowledges, plausible textualist arguments work both ways, and it seems to me resort to deep legislative history is unavoidable. I do not think you could find such history discussing the application of exclusive remedy to public nuisance, and I have discussed elsewhere the prickly doctrinal problems in trying to do so (see also here at Section 5.3). In any event, you do not have to reach that question if public nuisance cannot be established, so I am not sure why the court did. But if a court were to find that the harm, or risk of increased harm, or fear of harm or risk of increased harm, suffered by plaintiffs exceeded that suffered by the general public so much that it became a different type of harm, you could have a public nuisance. In that case, the question of conflict with exclusivity would have to be much more carefully considered.

The plaintiffs have appealed the case to the Second Circuit. My guess is that, given the new political dynamics, the Circuit will uphold on the primary jurisdiction question and find ruling on the state questions “unnecessary.”

Michael C. Duff