Freese et al v. USCIS Nebraska Service Center et al

Filing 62

MEMORANDUM AND ORDER - Defendants Marathon Properties and Star City Federal's Motion for Judgment on the Pleadings (filing no. 55 ) is granted. All remaining claims against all remaining Defendants are dismissed without prejudice. A s eparate judgment will be entered in accordance with this, and the court's March 21, 2012, Memorandum and Order. All other pending motions are denied as moot. The Final Pretrial Conference, scheduled for October 25, 2012, at 10:00 a.m. is cancelled. Ordered by Senior Judge Richard G. Kopf. (Copy mailed to pro se parties) (E-mailed to Magistrate Judge Zwart as directed) (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 Defendants Marathon Properties and Star City
Federal’s (together, the “Remaining Defendants”) Motion for Judgment on the
Pleadings. (Filing No. 55.) As set forth below, the Motion is granted.
Plaintiffs filed this matter on October 21, 2011. (Filing No. 1.) Liberally
construed, Plaintiffs allege that they are civilian employees of NSC. (Id.) Plaintiff
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
all Defendants 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.)
On March 21, 2012, the court granted Defendant USCIS Nebraska Service
Center’s and Defendant’s AFGE AFL-CIO’s Motions to Dismiss. (Filing No. 52.)
The court dismissed this matter as to these two Defendants because OSHA does not
provide a private right of action and Plaintiff’s claims arose only pursuant to OSHA.
(Id.) In Response to the court’s March, 21, 2012, the Remaining Defendants filed
their Motion for Judgment on the Pleadings, arguing that, because the court has
already determined that OSHA does not provide for a private right of action,
Plaintiff’s claims against them must be dismissed as well.

Indeed, the court has already determined, in accordance with numerous other
federal decisions, 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.”).

Instead,

violations of OSHA are investigated and enforced by the Secretary of Labor. 29
U.S.C. §§ 662, 666, 657.
Here, Plaintiffs allege only that the Remaining Defendants 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 Stuart’s extensive health problems, which they claim occurred as a result
of these OSHA violations. (Id. at CM/ECF pp. 2-3.) In their separate Response to the
Motion for Judgment on the Pleadings, Plaintiffs reiterate Stuart’s medical problems.
(Filing No. 57.) Plaintiff also argue that, even though OSHA is “the basis for the
Plaintiffs allegations,” the court should disregard the legal principle that OSHA does
not provide for a private right of action because “there has been extreme negligence
and irresponsibility on the part of all the Defendants in this case.” (Id.) Again, the
court finds that OSHA does not create a private right of action for Plaintiffs and the
court will not ignore this “legal principle” to allow Plaintiffs’ claims to proceed.
Rather, the court dismisses Plaintiffs’ claims against the Remaining Defendants in

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accordance with this, and the court’s March 21, 2012, Memorandum and Order.1
IT IS THEREFORE ORDERED that:
1.

Defendants Marathon Properties and Star City Federal’s Motion for

Judgment on the Pleadings (filing no. 55) is granted. All remaining claims against all
remaining Defendants are dismissed without prejudice.
2.

A separate judgment will be entered in accordance with this, and the

court’s March 21, 2012, Memorandum and Order.
3.

All other pending motions are denied as moot.

4.

The Final Pretrial Conference, scheduled for October 25, 2012, at 10:00

a.m. is cancelled.

The Clerk of the court is directed to send a copy of this

Memorandum and Order to Magistrate Judge Zwart.
DATED this 31 st day of May, 2012.
BY THE COURT:
Richard G. Kopf

1

Although the other Defendants sought dismissal pursuant to Federal Rule of
Civil Procedure 12(b)(6) and the Remaining Defendants answered and now seek
dismissal pursuant to Federal Rule of Civil Procedure 12(c), the standard for dismissal
is the same. Ashley Cnty., Ark. v. Pfizer, Inc., 552 F.3d 659, 665 (8th Cir. 2009)
(“Judgment on the pleadings is appropriate only when there is no dispute as to any
material facts and the moving party is entitled to judgment as a matter of law, the
same standard used to address a motion to dismiss for failure to state a claim under
Rule 12(b)(6).”) (quotation omitted).
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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,
approve, or guarantee any third parties or the services or products they provide on
their Web sites. Likewise, the court has no agreements with any of these third parties
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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