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Ocas v. United States, Department of Labor

United States District Court, E.D. Pennsylvania

June 26, 2017

HECTOR OCAS and ERIKA ALVA, W/H, Plaintiffs,


          Hon. Jan E. DuBois Judge

         This case arises out of the refusal by defendant United States Department of Labor's (“DOL”) to authorize the testimony of a former Occupational Safety and Health Administration (“OSHA”) inspector in a third-party state court civil matter. Plaintiffs, Hector Ocas and Erika Alva, challenge that decision as arbitrary and capricious under the Administrative Procedure Act (“APA”). Presently before the Court are DOL's Motion for Summary Judgment and plaintiffs' Cross Motion for Summary Judgment. For the reasons that follow, the Court grants DOL's Motion and denies plaintiffs' Cross Motion.

         I. BACKGROUND

         The facts of this case as set forth in the parties' briefs, accompanying exhibits, and the administrative record are summarized as follows. The facts are not contested except as otherwise noted.

         On November 8, 2014, Hector Ocas was injured while working at a Philadelphia construction site. Statement of Undisputed Facts in Supp. of DOL's Mot. for Summ. J. (“SOF”) ¶ 1. Six days after that accident, on November 14, 2014, former OSHA compliance officer Magnolia Torres inspected the construction site as part of an OSHA investigation. SOF ¶¶ 1, 3. As part of that inspection, Torres took photographs of the worksite, and interviewed the owners of both the general contractor for the worksite and a sub-contractor on the worksite tasked with carpentry work. SOF ¶ 4. Torres ultimately determined that Mr. Ocas worked as an independent contractor and that OSHA did not have jurisdiction over his employment. SOF ¶¶ 5-6.

         Plaintiffs filed a personal injury action against the worksite contractors in the Court of Common Pleas of Philadelphia County. Plaintiffs' Counter Statement of Undisputed Facts in Opp'n to Mot. for Summ. J. (“PSOF”) ¶ 1. Following a Freedom of Information Act request by plaintiffs, OSHA provided plaintiffs with a redacted copy of its investigation file. SOF ¶ 8. On March 24, 2016, plaintiffs sought Torres's testimony regarding her investigation via a subpoena delivered to DOL's Philadelphia Regional Office. PSOF ¶ 10. DOL informed plaintiffs' counsel in the civil case that former OSHA employees are prohibited from testifying in private litigation without the express permission of the Solicitor of Labor and declined to make Torres available to testify in the case unless plaintiffs provided DOL with a summary of the information sought. PSOF ¶ 7.

         Plaintiffs responded with a letter, on March 30, 2016, stating in relevant part:

The information sought by Plaintiffs is not reasonably available from any other source for several reasons. First, the photographs are difficult to decipher without some sort of orientation. Second, Mr. Camargo [the owner of the sub-contractor tasked with carpentry work at the site] has not responded to the lawsuit and is in fact in default as to an earlier version of the Complaint, and we predict he likewise will not respond to the Complaint that was recently served upon him. We are therefore unable to interview him at this time. Third, there are critical language barriers in this case, and Ms. Torres speaks Spanish and may have interviewed key witnesses in Spanish. To date, we are unable to precisely determine which workers may have been on site on the days leading up to the fall.

PSOF ¶ 8. The Office of the Solicitor for DOL sent a letter to plaintiffs' counsel on May 5, 2016, declining to authorize the testimony of Torres. SOF ¶ 12. That letter explained that Torres “has no independent recollection of the investigation beyond what is contained in the file. Thus, Ms. Torres would not be able to contribute any relevant or necessary information pertaining to the investigation other than what is already being provided to you in the file.” SOF ¶ 12.

         On October 7, 2016, plaintiffs filed this suit seeking an order requiring Torres to provide testimony. DOL filed a Motion for Summary Judgment on May 1, 2017. Plaintiffs filed a Cross Motion for Summary Judgment on May 22, 2017. Those Motions are now ripe for review.


         The parties seek review under the Administrative Procedure Act (“APA”). “While summary judgment is the proper mechanism for deciding, as a matter of law, whether an agency decision is supported by the administrative record and consistent with the APA standard of review because the district judge sits as an appellate tribunal in such cases, the usual summary judgment standard does not apply.” Uddin v. Mayorkas, 862 F.Supp.2d 391, 399 (E.D. Pa. 2012).

         Under the APA, a court may only set aside an agency decision if it is “arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with the law.” 5 U.S.C. § 706(2)(A). The scope of review under the APA “is narrow, and a court is not to substitute its judgment for that of the agency.” Motor Vehicle Mfrs. Ass'n of U.S., Inc. v. State Farm Auto Ins. Co., 463 U.S. 29, 43 (1983). “Reversal is appropriate only where the administrative action is irrational or not based on relevant factors.” NVE, Inc. v. Dep't of Health & Human Servs., 436 F.3d 182, 190 (3d Cir. 2006). In determining whether an agency acted arbitrarily and capriciously, a district court considers “whether the agency relied on factors outside those Congress intended for consideration, completely failed to consider an important aspect of the problem, or provided an explanation that is contrary to, or implausible in light of, the evidence.” Id.

         III. ...

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