Freese et al v. USCIS Nebraska Service Center et al

Filing 52

MEMORANDUM AND ORDER - Defendants' Motions to Dismiss (filing nos. 20 and 29 ) are granted and this matter is dismissed without prejudice as to Defendants USCIS Nebraska Service Center and AFGE AFL-CIO Local 3928. The Clerk of the cou rt is directed to terminate USCIS Nebraska Service Center and AFGE AFL-CIO Local 3928 as Defendants in this matter. Defendants Marathon Properties and Star City Federal's Motion for Leave to Conduct Discovery (filing no. 51) is granted. A separate progression order will be entered progressing this matter to final disposition. All other pending motions are denied. Ordered by Senior Judge Richard G. Kopf. (Copy mailed to pro se party) (Party AFGE AFL-CIO (Local 3928) and USCIS Nebraska Service Center ((NSC)) terminated) (TEL)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEBRASKA
STUART W. FREESE, and DEBRA
D. FREESE,
Plaintiffs,
v.
USCIS NEBRASKA SERVICE
CENTER, et al.,
Defendants.

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4:11CV3182

MEMORANDUM
AND ORDER

This matter is before the court on Defendant USCIS Nebraska Service Center’s
(“NSC”) Motion to Dismiss (filing no. 29) and Defendant AFGE AFL-CIO Local
3928’s (“Local 3928”) Motion to Dismiss (filing no. 20). As set forth below, the
Motions are granted.
I.

BACKGROUND AND SUMMARY OF COMPLAINT

Plaintiffs filed this matter on October 21, 2011. (Filing No. 1.) Liberally
construed, Plaintiffs allege that they are civilians employees of NSC. (Id.) Defendant
Stuart W. Freese (“Stuart”) became very ill after being transferred to another NSC
location in Lincoln, Nebraska. (Id. at CM/ECF p. 2.) Plaintiffs allege that Stuart’s
illnesses occurred as a result of “exposure to mold allergens” at this location and that
NSC and Local 3928 failed to take action to remedy Stuart’s exposure to mold in
violation of “Sections 654 & 657” of the Occupational Safety and Health Act
(“OSHA”). (Id.)
In their Motions to Dismiss, Defendants argue that dismissal is warranted
because OSHA does not provide a private right of action and because this court lacks
subject matter jurisdiction. (Filing Nos. 21 and 31.) Plaintiffs filed an “Opposition”
to each Motion to Dismiss. (Filing Nos. 40 and 44.) Plaintiffs also filed a “Motion

to Retain Lawsuit Against USCIS-Nebraska Service Center” (filing no. 35) and a
“Counter Response” to Local 3928’s Motion to Dismiss (filing no. 24), both of which
the court construes as additional responses to the pending Motions to Dismiss. The
Motions to Dismiss are therefore deemed fully submitted.
II.

DEFENDANTS’ MOTIONS TO DISMISS

NSC and Local 3928 both argue that the only claims asserted by Plaintiffs in
the Complaint should be dismissed because OSHA does not provide a private right of
action. (Filing No. 21 at CM/ECF pp. 6-8; Filing No. 31 at CM/ECF pp. 8-10.) The
court agrees.
Although the Eighth Circuit appears not to have addressed the issue, numerous
courts have held that OSHA does not provide a private right of action. See, e.g., Am.
Fed’n of Gov’t Emp., AFL-CIO v. Rumsfeld, 321 F.3d 139, 143-44 (D.C. Cir. 2003)
(noting that the plaintiffs had “no private right of action under . . . OSHA”); Ellis v.
Chase Commc’ns, Inc., 63 F.3d 473, 476-77 (6th Cir. 1995) (same); Pedraza v. Shell
Oil Co., 942 F.2d 48, 52 (1st Cir. 1991) (same) ; Merritt v. Bethlehem Steel Corp., 875
F.2d 603, 608 (7th Cir. 1989) (same); Donovan v. Occupational Safety and Health
Review Comm’n, 713 F.2d 918, 916 (2d Cir. 1983) (same); Jeter v. St. Regis Paper
Co., 507 F.2d 973, 976-77 (5th Cir. 1975) (“The only provision in the statute which
addresses itself to a private remedy clearly indicates that Congress did not intend
OSHA to create a new action for damages in favor of employees.”). Rather, violations
of OSHA are investigated and enforced by the Secretary of Labor. 29 U.S.C. §§ 662,
666, 657.
Here, Plaintiffs allege only that NSC and Local 3928 violated “Sections 654 &
657” of OSHA. (Filing No. 1 at CM/ECF p. 2.) They include six separate allegations
of failing to “provide a safe work environment,” failing to conduct “air quality and
mold tests,” and failing to take action relating to Plaintiffs’ “safety concerns.” (Id.)
Each of these allegations cites to a section of OSHA. (Id.) Plaintiffs then detail
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Stuart’s extensive health problems, which they claim occurred as a result of these
OSHA violations.

(Id. at CM/ECF pp. 2-3.)

In the separate documents titled

“Plaintiff’s [sic] Counter Response to Defendant Local 3928,” Plaintiffs include three
pages of additional alleged OSHA violations to support their claims. (Filing No. 24.)
Likewise, in their “Motion to Retain Lawsuit Against USCIS-Nebraska Service
Center,” Plaintiffs assert an additional two pages of alleged OSHA violations. (Filing
No. 35.) The court agrees with the numerous circuit courts, set forth above, that have
held that OSHA does not create a private right of action for Plaintiffs. As such, their
claims against NSC and Local 3928 are dismissed.1
IT IS THEREFORE ORDERED that:
1.

Defendants’ Motions to Dismiss (filing nos. 20 and 29) are granted and

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Liberally construed, Plaintiffs’ responses to the Motions to Dismiss include
arguments relating to a personal injury claim against the NSC for Stuart’s moldrelated injuries and a “failure to represent” claim against Local 3928. (Filing Nos. 40
and 44.) Put simply, such claims are not set forth in the Complaint and are therefore
not properly before the court. Regardless, even if they were, dismissal would still be
appropriate because the court lacks subject matter jurisdiction over such claims. See
Eubank v. Kansas City Power & Light Co., 626 F.3d 424, 430 (8th Cir. 2010) (“FECA
is the exclusive avenue of redress against the Government for a government
employee’s work-related injuries.”) (internal citations omitted); Pourier v. U.S., 138
F.3d 1267, 1268 (8th Cir. 1998) (holding that “[c]laims brought by or on behalf of a
federal employee for work-related injury or death caused by another federal employee
acting within the scope of his or her employment fall exclusively within the FECA”
and the district court lacks subject matter jurisdiction over such claims); Karahalios
v. Nat’l Fed’n of Fed. Emp., Local 1263, 489 U.S. 527, 531-36 (1989) (holding that
a federal employee has no private cause of action against his or her union for breach
of duty of fair representation and that, while “courts play a role in . . . fair
representation cases,” that role is “sitting in review of the FLRA” and “[t]o hold that
the district courts must entertain such cases in the first instance would seriously
undermine what we deem to be the congressional scheme, namely to leave the
enforcement of union and agency duties under the Act to the General Counsel and the
FLRA and to confine the courts to the role given them under the Act”).
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this matter is dismissed without prejudice as to Defendants USCIS Nebraska Service
Center and AFGE AFL-CIO Local 3928.
2.

The Clerk of the court is directed to terminate USCIS Nebraska Service

Center and AFGE AFL-CIO Local 3928 as Defendants in this matter.
3.

Defendants Marathon Properties and Star City Federal’s Motion for

Leave to Conduct Discovery (filing no. 51) is granted. A separate progression order
will be entered progressing this matter to final disposition.
4.

All other pending motions are denied.

DATED this 21 st day of March, 2012.
BY THE COURT:
Richard G. Kopf
Senior United States District Judge

*This opinion may contain hyperlinks to other documents or Web sites. The
U.S. District Court for the District of Nebraska does not endorse, recommend,
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or their Web sites. The court accepts no responsibility for the availability or
functionality of any hyperlink. Thus, the fact that a hyperlink ceases to work or
directs the user to some other site does not affect the opinion of the court.
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