Gaspard v. Occupational Safety and Health Administration, No. 2:2015cv05858 - Document 15 (E.D. La. 2016)

Court Description: ORDER AND REASONS granting 13 Motion to Dismiss for Lack of Jurisdiction. Signed by Judge Sarah S. Vance on 8/5/16. (jjs)

Download PDF
Gaspard v. Occupational Safety and Health Administration Doc. 15 UNITED STATES DISTRICT COURT EASTERN DISTRICT OF LOUISIANA J UAN GASPARD CIVIL ACTION VERSUS NO: 15-5858 OCCUPATIONAL SAFETY AND HEALTH ADMINISTRATION SECTION: R ORD ER AN D REASON S In this lawsuit, plaintiff J uan Gaspard challenges a safety standard issued under the Occupational Health and Safety Act of 1970 (the "OSH Act"). Defendant, the United States on behalf of the Departm ent of Labor, m oves to dism iss the com plaint for lack of subject m atter jurisdiction. Plaintiff did not file his com plaint within fifty-nine days of the standard's issuance, and he did not file suit in the United States Court of Appeals, as the OSH Act requires. Accordingly, the Court grants defendant's m otion. I. BACKGROU N D In this lawsuit, plaintiff challenges the validity of a rule prom ulgated by the Occupational Safety and Health Adm inistration ("OSHA") under the OSH Act. Plaintiff contends that 29 CFR § 1910 .23, entitled "Guarding floor and wall openings and holes," is "defective" and inadequate to ensure the safety of Dockets.Justia.com individuals working in elevated positions.1 Plaintiff, who is proceeding pro se, explains his challenge as follows: OSHA STANDARD 1910 .23 is defective. . . . My entire com plaint hinges on the word, "OR", it is m y findings based on 25 years in the industry that any hole big enough for a body to fall through, 18" inches and above be double protection, to afford workers in elevated positions to reduce the risk of falling through the hole, from above the protected area, which is usually at ground, or walkway level, this walkway can be 40 -30 0 feet in the air.2 Defendant, the United States on behalf of the Departm ent of Labor, m oves to dism iss plaintiff's com plaint for lack of jurisdiction.3 In support, defendants argue that plaintiff's petition is untim ely and that was incorrectly filed in federal district court, as opposed to the United States Court of Appeals, as required by the OSH Act, 29 U.S.C. § 655(f). II. D ISCU SSION Congress enacted the OSH Act to enhance the safety of the Am erican workforce. See Indus. Union Dep't, AFL-CIO v. Am . Petroleum Inst., 448 U.S. 60 7, 611 (1980 ) (noting Congress's goal of "ensuring safe and healthful working conditions for every working m an and wom an in the Nation"). To 1 R. Doc. 1 at 1. 2 Id. 3 R. Doc. 13-1. 2 advance this goal, the OSH Act delegates authority to the Secretary of Labor, acting through OSHA, to issue workplace "standards." 29 U.S.C. § 655(b) (granting authority to prom ulgate "any occupational safety or health standard"). The OSH Act defines "occupational health and safety standard" as "a standard which requires conditions, or the adoption or use of one or m ore practices, m eans, m ethods, operations, or processes, reasonably necessary or appropriate to provide safe or healthful em ploym ent and places of em ploym ent." 29 U.S.C. § 652(9). The OSH Act also authorizes the Secretary to issue certain record-keeping requirem ents by "regulation." See 29 U.S.C. § 657(c)(1). The requirements for obtaining judicial review of OSHA rulemaking vary depending on whether the challenged rule is a "regulation" or a "standard." Persons seeking judicial review of OSHA regulations m ust file suit in federal district court pursuant to the Adm inistrative Procedure Act ("APA"), 5 U.S.C. § 70 3. See W orkplace Health & Safety Council v. Reich, 56 F.3d 1465, 1467 (D.C. Cir. 1995); Louisiana Chem . Ass'n v. Bingham , 657 F.2d 777, 778 (5th Cir. 1981). By contrast, persons "adversely affected by a standard" m ust file a petition for judicial review of the standard in the United States Court of Appeals for the circuit of the person's residence. 29 U.S.C. § 655(f) (em phasis added). Im portantly, the person m ust also file his or her petition within fifty3 nine days of the standard's prom ulgation. Id.; see N at. Res. Def. Council v. Nuclear Regulatory Com m 'n, 666 F.2d 595, 60 2 (D.C. Cir. 1981) (explaining that the OSH Act's tim e lim it "serves the im portant purpose of im parting finality into the adm inistrative process, thereby conserving adm inistrative resources and protecting the reliance interests of regulatees who conform their conduct to the regulations"). Here, the OSHA rule that plaintiff challenges is a "standard" reviewable under 29 U.S.C. § 655(f). As the Fifth Circuit holds, the "basic function of the rule, rather than the exact nature of the 'practices, means, methods, operations or processes' that it em bodies, distinguishes a standard from a regulation." Louisiana Chem ., 657 F.2d at 781. To determ ine whether a rule is a standard or a regulation, courts "m ust determ ine whether the challenged rule reasonably purports to correct a particular 'significant risk' or instead is m erely an enforcem ent or detection procedure designed to further the goals of the [OSH] Act generally." Id. at 782; see also W orkplace Health, 56 F.3d at 1468 (applying the Louisiana Chem ical test). Plaintiff challenges 29 C.F.R. § 1910 .23, an OSHA rule entitled "Guarding floor and wall openings and holes." That rule requires the use of railings, floor covers, and m anhole covers to prevent workers from falling into floor openings. See 29 C.F.R. § 1910 .23(a). It also requires sim ilar protections for wall openings, stairways, and open-side 4 platform s, and it provides detailed specifications for the railings, toe boards, and covers to be used. Id. § 1910 .23(b)-(e). Because section 1920 .23 addresses specific workplace hazards that have already been identified, its requirem ents are "standards," and 29 U.S.C. § 655(f) governs judicial review. See Louisiana Chem ., 657 F.2d at 781 (explaining that an OSHA "standard," as opposed to a "regulation" should "aim toward correction rather than m ere inquiry into possible hazards"). Plaintiff's petition fails to satisfy section 655(f) for two reasons. First, it is untim ely. OSHA issued the "Guarding floor and wall openings and holes" standard in 1974, see 39 Fed. Reg. 2350 2 (J une 27, 1974), and the standard was last am ended in 1984. See 49 Fed. Reg. 5321 (Feb. 10 , 1984). Plaintiff did not file this lawsuit until Novem ber 20 15, well after the fifty-nine day statutory deadline for challenging the standard's validity. See N at'l Ass'n of Mfrs. v. Occupational Safety & Health Adm in., 485 F.3d 120 1, 120 4-0 5 (D.C. Cir. 20 0 7) (dism issing a challenge to an OSHA standard filed twenty years after the standard was issued as untim ely). Second, plaintiff lodges his com plaint with the wrong court. Because plaintiff challenges an OSHA standard, as opposed to a regulation, jurisdiction over his com plaint lies in the United States Circuit Court of Appeals, not federal district court. See Int'l Brom inated Solvents Ass'n v. Am . Conference 5 of Governm ental Indus. Hy gienists, Inc., 393 F. Supp. 2d 1362, 138 5 (M.D. Ga. 20 0 5) (holding that district court lacked jurisdiction to consider an untim ely challenge to an OSHA standard that was not filed in the Court of Appeals); Am . Indus. Health Council v. Marshall, 494 F. Supp. 941, 945 (S.D. Tex. 1980 ) (finding that district court lacked jurisdiction to review an OSHA standard's validity). For these reasons, this Court lacks jurisdiction over plaintiff's lawsuit, and defendant's m otion to dism iss m ust be granted. III. CON CLU SION For the foregoing reasons, the Court GRANTS defendant's m otion to dism iss for lack of jurisdiction. New Orleans, Louisiana, this _5th day of August, 20 16. __ _______________________________ SARAH S. VANCE UNITED STATES DISTRICT J UDGE 6

Some case metadata and case summaries were written with the help of AI, which can produce inaccuracies. You should read the full case before relying on it for legal research purposes.

This site is protected by reCAPTCHA and the Google Privacy Policy and Terms of Service apply.