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IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF OKLAHOMA
NATIONAL ASSOCIATION
OF HOME BUILDERS OF THE UNITED
STATES; CHAMBER OF
COMMERICE OF THE UNITED STATES
OF AMERICA; OKLAHOMA STATE
HOME BUILDERS ASSOCIATION;
STATE CHAMBER OF OKLAHOMA;
NATIONAL CHICKEN COUNCIL;
NATIONAL TURKEY FEDERATION; and
U.S. POULTRY & EGG ASSOCIATION,

)
)
)
)
)
)
)
)
)
)
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PLAINTIFFS,
)
)
v.
)
)
THOMAS E. PEREZ, SECRETARY OF
)
LABOR, in his official capacity;
)
)
DAVID MICHAELS, ASSISTANT
)
SECRETARY OF LABOR FOR
)
OCCUPATIONAL SAFETY AND HEALTH,
)
in his official capacity;
)
)
OCCUPATIONAL SAFETY AND HEALTH
)
ADMINISTRATION; and
)
)
UNITED STATES DEPARTMENT OF LABOR, )
)
DEFENDANTS.
)

$*7           .
CIVIL ACTION NO. __________

COMPLAINT
Plaintiffs National Association of Home Builders of the United States, Chamber of
Commerce of the United States of America, Oklahoma State Home Builders Association, State
Chamber of Oklahoma, National Chicken Council, National Turkey Federation, and U.S. Poultry
& Egg Association, for their Complaint against Defendants Thomas E. Perez, David Michaels,
Occupational Safety and Health Administration, and United States Department of Labor allege,
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by and through their undersigned counsel, on knowledge as to Plaintiffs, and on information and
belief as to all other matters, as follows:
INTRODUCTION
1.

Plaintiffs bring this action under the Administrative Procedure Act (“APA”), 5 U.S.C.

§ 500 et seq., challenging a final rule issued by the United States Occupational Safety and Health
Administration (“OSHA” or the “Agency”), entitled “Improve Tracking of Workplace Injuries
and Illnesses,” 81 Fed. Reg. 29,624 (May 12, 2016), as revised at 81 Fed. Reg. 31,854 (May 20,
2016) (the “Rule”) (collectively attached as Exhibit 1). The Rule exceeds the statutory authority
Congress granted to the Agency under the Occupational Safety and Health Act of 1970 (“OSH
Act”), 29 U.S.C. § 651 et seq. The Rule is also arbitrary, capricious, and otherwise contrary to
law, and portions of the Rule were promulgated without proper observance of procedure required
by the APA. Finally, the Rule violates the constitutional rights of Plaintiffs’ members under the
First and Fifth Amendments to the Constitution of the United States.
2.

The Rule has three primary components. First, it requires certain employers to submit

injury and illness recordkeeping forms to OSHA electronically (29 C.F.R. § 1904.41), which
OSHA will then make publicly available on an online database. 81 Fed. Reg. at 29,692. Second,
it requires employers to establish “reasonable” procedures for employees to report work-related
injuries (29 C.F.R. § 1904.35). Id. at 29,691. Third, it gives OSHA additional authority to
redress alleged discrimination and retaliation against employees for reporting a work-related
injury or illness beyond Section 11(c) of the OSH Act (29 C.F.R. §§ 1904.35(b)(1) and 1904.36).
Id. at 29,691-92. Each of these components is unlawful.
3.

First, OSHA lacks statutory authority to create an online database meant for the public

dissemination of employers’ injury and illness records. OSHA has stated that it has authority for

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the Rule under Sections 8 and 24 of the OSH Act, but neither of those sections authorizes OSHA
to publicly disseminate reports collected under the Rule. In addition, the Rule is arbitrary and
capricious for several reasons, including because OSHA has changed its position on the
confidentiality of the information it is demanding companies produce, without providing a
reasoned explanation for that change. Further, there is no evidence that publication of the
information will have any effect on workplace safety and health; rather, the Rule is an imposition
on businesses all so that their confidential and proprietary information may be misused by the
public and special interest groups, thereby exposing them to significant reputational harm.
4.

Second, the creation in 29 C.F.R. §§ 1904.35(b)(1) and 1904.36 of a new scheme to

prohibit alleged discrimination and retaliation against employees exceeds OSHA’s statutory
authority, as it contravenes the express and sole statutory scheme established by Congress in
Section 11(c) of the OSH Act to provide redress for retaliatory actions by employers against
employees.
5.

Third, the requirement in 29 C.F.R. § 1904.35(b)(1) that employers establish

“reasonable” procedures for employees to report work-related injuries is arbitrary and capricious
under the APA. The Rule does not define what is “reasonable,” and further confuses by
tautologically stating that “[a] procedure is not reasonable if it would deter or discourage a
reasonable employee from accurately reporting a workplace injury or illness.” 81 Fed. Reg. at
29,691. The regulatory text provides employers with no notice of what constitutes compliance
with the Rule.
6.

Fourth, the rulemaking process OSHA used in promulgating the “supplemental” portions

of the Rule—29 C.F.R. § 1904.35(b)(1)—failed to provide interested parties with adequate and
fair notice of the final rule and denied interested parties an adequate opportunity to meaningfully

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comment. In proposing to require the implementation of “reasonable” reporting procedures in
the Rule, OSHA provided no regulatory text for the public’s consideration and failed to provide
notice of the extent to which many workplace safety and health policies and procedures might be
affected by such a requirement.
7.

And finally, the Rule violates the First and Fifth Amendments to the Constitution. The

Rule violates the First Amendment by compelling companies to submit their confidential and
proprietary information for publication on a publicly available online database. There is no
evidence that publication of this information will have any effect on workplace safety and health.
The limited authority given OSHA by Congress to require employers to collect and maintain
injury and illness data cannot be read to allow the Agency to force employers to make public this
information in violation of their constitutional rights.

Further, the Rule violates the Fifth

Amendment by failing to provide employers adequate notice of what constitutes “reasonable”
reporting procedures, subjecting employers to citation and potentially significant penalties
without providing due process of law.
8.

For each of these reasons, the Rule violates the APA, and it should be vacated and set

aside in its entirety.
PARTIES
9.

Plaintiff National Association of Home Builders of the United States (“NAHB”) is a

Washington, D.C.-based trade association that represents more than 140,000 members
nationwide who are involved in home building, remodeling, multi-family construction, property
management, subcontracting, design, housing finance, building product manufacturing and other
aspects of residential and light commercial construction. NAHB is affiliated with more than 700

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state and local home builder associations around the country. NAHB has members that are
headquartered in and operate in the state of Oklahoma and the Western District of Oklahoma.
10.

Plaintiff Chamber of Commerce of the United States of America (“Chamber”) is the

world’s largest business federation.

It represents 300,000 direct members and indirectly

represents the interests of more than three million companies and professional organizations of
every size, in every industry sector, and from every region of the country. More than 96 percent
of the Chamber’s members are small businesses with 100 or fewer employees. An important
function of the Chamber is to represent the interests of its members in matters before Congress,
the Executive Branch, and the courts. To that end, the Chamber regularly brings litigation
challenging the legality of rulemakings by federal agencies, including the U.S. Department of
Labor, in order to protect the legal rights of American businesses. The Chamber has members
that are headquartered in and operate in the state of Oklahoma and the Western District of
Oklahoma. The Chamber brings this action on behalf of its members, in order to advance the
interests of its members and, more broadly, the entire business community.
11.

Plaintiff Oklahoma State Home Builders Association (“OSHBA”) is a non-profit trade

association separately incorporated but chartered with Plaintiff NAHB. OSHBA is comprised of
more than 2,500 members in 11 local home builder associations around the state of Oklahoma
and their builder/associate members.

OSHBA represents the Oklahoma building industry.

OSHBA is headquartered in this judicial district at 917 N.E. 63rd Street, Oklahoma City, OK
73105 and has members in this judicial district.
12.

Plaintiff State Chamber of Oklahoma (“Oklahoma Chamber”) is a non-profit, tax-exempt

organization incorporated in the state of Oklahoma and headquartered in this judicial district at
330 N.E. 10th Street, Oklahoma City, OK 73104. The Oklahoma Chamber represents more than

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1,500 Oklahoma businesses and 350,000 employees. It has been the State’s leading advocate for
business since 1926. The Oklahoma Chamber has members that are headquartered in and
operate in the state of Oklahoma and the Western District of Oklahoma.

The Oklahoma

Chamber brings this action on behalf of its members, in order to advance the interests of its
members and the business community of Oklahoma.
13.

Plaintiff National Chicken Council (“NCC”) is the national, non-profit trade association

for the chicken production and processing industry. NCC member companies include chicken
producer/processors, poultry distributors, and allied industry firms. The producer/processors
account for approximately 95 percent of the chickens produced in the United States. NCC is
headquartered in Washington, D.C. NCC has members that are headquartered in and operate in
the state of Oklahoma.
14.

Plaintiff National Turkey Federation (“NTF”) is the national trade association for turkey

farmers and processers. Members of the NTF include growers, processors, hatchers, breeders,
distributors, allied services and state associations. NTF represents all segments of the turkey
industry and is composed of over 300 member companies representing more than 95 percent of
the turkey industry. NTF is headquartered in Washington, D.C.
15.

Plaintiff U.S. Poultry & Egg Association (“USPOULTRY”) is the world’s largest poultry

organization. Members of USPOULTRY include producers and processors of broilers, turkeys,
ducks, eggs, and breeding stock, as well as allied companies. The association has affiliations in
26 states and member companies worldwide.

USPOULTRY is headquartered in Tucker,

Georgia. USPOULTRY has members that are headquartered in and operate in the state of
Oklahoma.

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16.

Plaintiffs’ members include employers covered by the OSH Act (29 U.S.C. § 652(5))

who are responsible for providing safe and healthful working conditions to their employees and
complying with OSHA standards and regulations, including those related to recording and
reporting workplace injuries and illnesses. The Rule at issue in this case will force businesses to
have confidential and proprietary information made available to the public so that it may be
misused thereby exposing them to significant reputational harm. Further, many of Plaintiffs’
members have adopted procedures for promoting and ensuring the safety and health of their
employees. Some of these procedures may be prohibited under the Rule, as they might not be
deemed “reasonable” by the Agency.
17.

Defendant Thomas E. Perez is the Secretary of Labor and is subject to the APA. See 5

U.S.C. § 551(1). The Secretary is sued in his official capacity as head of the United States
Department of Labor.
18.

Defendant David Michaels, Ph.D. is the Assistant Secretary of Labor for Occupational

Safety and Health and is subject to the APA. See 5 U.S.C. § 551(1). The Assistant Secretary is
sued in his official capacity as head of the Occupational Safety and Health Administration.
19.

Defendant Department of Labor (“DOL”) is an agency of the United States government

subject to the APA. See 5 U.S.C. § 551(1).
20.

Defendant Occupational Safety and Health Administration (“OSHA”) is an agency within

DOL and is subject to the APA. See 5 U.S.C. § 551(1).
JURISDICTION AND VENUE
21.

This action arises under the APA, 5 U.S.C. § 500 et seq., the OSH Act, 29 U.S.C. § 651

et seq., and the First and Fifth Amendments to the Constitution of the United States. Federal
question jurisdiction therefore lies in this Court under 28 U.S.C. § 1331.

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22.

Plaintiffs have associational standing to bring this suit on behalf of their members

because those members will be directly and adversely affected by the Rule and thus would have
standing to sue in their own right; because the interests Plaintiffs seek to protect are germane to
their organizations’ purposes; and because neither the claims asserted nor the relief requested
requires an individual member to participate in this suit. See Hunt v. Wash. St. Apple Adver.
Comm’n, 432 U.S. 333, 343 (1977). Plaintiffs also participated in the rulemaking process, by
submitting comments and participating in a public meeting convened by OSHA.

Thus,

plaintiffs’ standing is self-evident based on the administrative record. See Lujan v. Defenders of
Wildlife, 504 U.S. 555, 560-62 (1992).
23.

Venue is proper in this Court under 28 U.S.C. § 1391(e) because this is an action against

officers and agencies of the United States, and Plaintiffs OSHBA and Oklahoma Chamber reside
in this judicial district and no real property is involved in this action.
BACKGROUND
Recordkeeping and Information Collection Under the OSH Act
24.

Section 8(c)(1) of the OSH Act provides that each “employer shall make, keep and

preserve, and make available to the Secretary [of Labor] or the Secretary of Health and Human
Services, such records … as the Secretary [of Labor] … may prescribe by regulation as
necessary or appropriate for the enforcement of this chapter or for developing information
regarding the causes and prevention of occupational accidents and illnesses.”

29 U.S.C.

§ 657(c)(1).
25.

Similarly, Section 8(c)(2) directs the Secretary of Labor to “prescribe regulations

requiring employers to maintain accurate records of, and to make periodic reports on, workrelated deaths, injuries and illnesses other than minor injuries requiring only first aid treatment

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and which do not involve medical treatment, loss of consciousness, restriction of work or
motion, or transfer to another job.” 29 U.S.C. § 657(c)(2).
26.

Section 8(g)(2) of the Act provides the Secretary general authority to prescribe rules and

regulations “necessary” to carry out his responsibilities under the Act. 29 U.S.C. § 657(g)(2).
Section 24 of the Act also authorizes the Secretary to develop and maintain an effective program
to collect, compile, and analyze occupational safety and health statistics. 29 U.S.C. § 673.
27.

Nothing in these provisions authorizes OSHA to publicly disseminate reports collected

under the Rule. Congress has not given the Agency the authority to publish injury and illness
data and confidential business information, as it has with other regulatory agencies, such as the
Mine Safety and Health Administration, see, e.g., 30 U.S.C. § 813(h).
OSHA’s 2001 Recordkeeping Rule
28.

OSHA promulgated its first recordkeeping rule in 1971. 36 Fed. Reg. 12,612 (July 2,

1971). Under the rule, certain employers covered by the OSH Act were required to maintain
records about every workplace injury or illness involving death, loss of consciousness, days
away from work, restriction of work or motion, transfer to another job, medical treatment other
than first aid, or diagnosis of a significant injury or illness. 66 Fed. Reg. 5,916, 5,917 (Jan. 19,
2001). Employers were required to keep track of these workplace injuries and illnesses on
designated recordkeeping forms. Id.
29.

On January 19, 2001, OSHA published a comprehensive revision to those rules to

modernize, clarify, and expand occupational injury and illness reporting and recording (the
“2001 rule”). 66 Fed. Reg. 5,916 (Jan. 19, 2001).
30.

The Agency cited three primary reasons for the 2001 rule: (1) “to provide information to

employers whose employees are being injured or made ill by hazards in their workplace”; (2) to

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provide a source of information to OSHA to conduct inspections and target its enforcement
resources; and (3) to provide an accurate source of data for the Bureau of Labor Statistics
(“BLS”) to compile and publish national statistics on workplace injuries and illnesses. 66 Fed.
Reg. at 5,916-17. The 2001 rule created three separate recordkeeping forms: (1) Form 300; (2)
Form 301; and (3) Form 300A. Id. at 6,130.
31.

The Form 300 “Log of Work-related Injuries and Illnesses” (“Form 300” or “OSHA 300

Log”) requires employers to record information about every work-related death and about every
work-related injury or illness that involves loss of consciousness, restricted work activity or job
transfer, days away from work, or medical treatment beyond first aid. See Form 300, attached as
Exhibit 2. In particular, it requires employers to record the employee’s name, job title, date of
injury or illness, and a description of the injury or illness, parts of the body affected, and the
object/substance that directly made the employee injured or ill. Id. A warning at the top of Form
300 states: “Attention: This form contains information relating to employee health and must be
used in a manner that protects the confidentiality of employees to the extent possible while the
information is being used for occupational safety and health purposes.”

Id. (emphasis in

original).
32.

The Form 301 “Injury and Illness Incident Report” (“Form 301”) requires employers to

collect and enter even more information on the injury or illness than is on the OSHA 300 Log,
including information about the employee, the physician or other health care professional that
may have treated the employee, and detailed information about the injury or illness involved and
how the injury or illness developed. See Form 301, attached as Exhibit 3. Form 301 is incidentspecific and must be completed for every work-related injury or illness that is included on the

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OSHA 300 Log. Id. As with the Form 300, the Form 301 warns employers of the need to
protect the confidentiality of the information to the extent possible. Id.
33.

Finally, the Form 300A “Summary of Work-related Injuries and Illnesses” (“Form

300A”) requires employers to annually compile aggregate information on certain work-related
injuries and illnesses and post the information at the worksite from February 1 to April 30 of the
year following the time period covered by the form. See Form 300A, attached as Exhibit 4. The
Form 300A includes no personally identifiable information about individual injuries and
illnesses that occurred at the worksite but does contain information about the number of
employee hours worked. Id. The 2001 rule required certain employers to submit their Forms
300A to OSHA on an annual basis as part of the OSHA Data Initiative, a program established by
OSHA to collect information to use to develop enforcement targeting. 29 C.F.R. § 1904.41.
34.

The crux of the 2001 rule was to require employers to record on the OSHA 300 Log and

Form 301 certain injuries and illnesses that were related to work—as defined in the regulation—
and that met the severity criteria established by Congress in 29 U.S.C. § 657(c)(2) (“medical
treatment, loss of consciousness, restriction of work or motion, or transfer to another job”).
35.

OSHA also specifically acknowledged the privacy interests of injured and ill employees,

explaining:

“OSHA agrees that confidentiality of injury and illness records should be

maintained except for those persons with a legitimate need to know the information. This is a
logical extension of the agency’s position that a balancing test is appropriate in determining the
scope of access to be granted employees and their representatives.” 66 Fed. Reg. at 6,057.
36.

Thus, OSHA required employers to redact the names of employees from the OSHA 300

Logs for certain injuries and illnesses deemed to be “privacy cases.” 29 C.F.R. § 1904.29(b)(7).

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37.

It also limited the extent to which employers could share injury and illness information to

others besides those specifically enumerated in the rule. Id. at § 1904.29(b)(10).
OSHA’s Proposal to Amend the 2001 Rule
38.

On November 8, 2013, OSHA published a Notice of Proposed Rulemaking (“NPRM”)

entitled “Improve Tracking of Workplace Injuries and Illnesses,” 78 Fed. Reg. 67,254 (Nov. 8,
2013), to revise the 2001 rule.
39.

OSHA proposed to require certain employers to submit electronically their OSHA 300

Logs and Forms 301, and 300A to OSHA on a regular basis, and the Agency stated that it would
make this information publicly available on an online database. Id. The purported safety and
health benefits from the rule flowed from the Agency’s commitment to make the data publicly
available. OSHA stated that “the online posting of establishment-specific injury and illness
information will encourage employers to improve and/or maintain workplace safety/health to
support their reputations as good places to work or do business with.” Id. at 67,258. In the
proposed rule OSHA cited no evidence or data to support this assertion.
40.

OSHA stated that it had authority for this proposed rule under Sections 8(c)(1), (c)(2),

(g)(2), and 24 of the OSH Act. Id. at 67,255. None of these sections, however, provide OSHA
with authority to collect information for the purpose of public dissemination.
41.

Numerous stakeholders, including some of the Plaintiffs in this cause of action, filed

comments objecting to the proposed rule. See Docket No. OSHA-2013-0023.
42.

Plaintiff NAHB, for example, commented that the OSH Act does not provide OSHA the

legal authority to issue the regulation. Docket ID: OSHA-2013-0023-1408 (posted Mar. 14,
2014), p. 3. NAHB stated that there is no express authority granted to OSHA anywhere in the
statute to make the various recordkeeping forms available to the public: “The OSH Act omits

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any language that would provide OSHA authority to make an employers’ injury and illness
records available to the public.” Id. at 7.
43.

Similarly, Plaintiff Chamber stated, “Conspicuously absent from [Sections 8(c)(1), (c)(2),

(g)(2), and 24 of the OSH Act] is any mention, let alone express or implied authority, that OSHA
may create an online database meant for the public dissemination of an employer’s injury and
illness records containing confidential and proprietary information. Had Congress envisioned or
intended that the Secretary of Labor would have the authority to publish this information it
surely would have so provided. But of course, it did not and has not. Nor has such authority
been contemplated by the numerous bills to amend the OSH Act that have been proposed.”
Docket ID: OSHA-2013-0023-1396 (posted Mar. 14, 2014), p. 3.
44.

In addition, Plaintiff NAHB stated that public disclosure of confidential and proprietary

business information would harm employers and employees. It explained:
In NAHB’s view, OSHA is taking a very cavalier approach to the privacy
interests of employees and others who may be affected by the public release of
this information. At the outset, it is important to emphasize that there are several
work-related injuries and illnesses that employees would prefer that OSHA not
make public to the entire world via the internet. OSHA recognizes this to a
degree with its provisions for privacy cases. However, particularly in smaller
communities, an employee’s identity can be readily determined from a published
report. Perhaps the employee is a health care professional who contracted an
infectious disease from a patient. Or perhaps the employee was a victim of an
assault at the workplace. These are real issues that can and have occurred and
OSHA seems to be oblivious to the concerns of employees whose information is
going to be published for everyone to see in every country in the world via the
internet.
Docket ID: OSHA-2013-0023-1408, 14-15 (emphasis in original).
45.

NAHB also objected to the “benefits” that the Agency claims will occur as a result of the

rule, stating:
[The rule’s] benefits, examined individually and collectively, do not support the
proposed rule. Strikingly, there is no data or evidence cited in the proposal to
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suggest that these benefits will even occur – no studies, no anecdotal references.
This is nothing more than speculation by OSHA of what may occur if the
proposed rule is finalized.
Id. at 20 (emphasis in original).
46.

Plaintiffs USPOULTRY, NCC, and NTF also objected to several aspects of the proposed

rule. In particular, they commented that the entire premise of the rule—that the public will make
judgments about the safety and health programs of employers based on injury and illness data—
with no context or explanation, is at odds with the “no-fault” recordkeeping system. Docket ID:
OSHA-2013-0023-1109 (posted Mar. 7, 2014), pp. 2-3.
Providing raw data, out of context, to those who do not know how to interpret it
will also create significant issues. Assessing an employer’s safety and health
efforts or programs is a complicated challenge. Injury rates are just one metric
and often are not indicative of the strength of a safety and health program.
Despite this, OSHA is encouraging the public to make judgments about a safety
and health program based on this limited data. This is simply wrong and we
believe counterproductive to workplace safety and health.
Id. at 3.
47.

On January 9-10, 2014, OSHA held a public meeting on the proposed rule. 81 Fed. Reg.

at 29,625.

Numerous stakeholders who participated in the public meeting repeated the

objections to the proposed rule set forth in written comments.
OSHA’s Supplemental Notice on Disincentives to Reporting
48.

After initially reviewing the rulemaking record generated from the proposed rule, and

comments made at the public meeting, OSHA sought additional comment on one concern raised
by some stakeholders:
At a public meeting on the proposal, many stakeholders expressed concern that
the proposal could motivate employers to under-record their employees’ injuries
and illnesses. They expressed concern that the proposal could promote an
increase in workplace policies and procedures that deter or discourage employees
from reporting work related injuries and illnesses. These include adopting

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unreasonable requirements for reporting injuries and illnesses and retaliating
against employees who report injuries and illnesses.
79 Fed. Reg. 47,605 (Aug. 14, 2014).
49.

The Supplemental Notice of Proposed Rulemaking was just six pages in the Federal

Register. Id.
50.

In the supplemental notice, OSHA specifically sought comment on whether “to

(1) require that employers inform their employees of their right to report injuries and illnesses;
(2) require that any injury and illness reporting requirements established by the employer be
reasonable and not unduly burdensome; and (3) prohibit an employer from taking adverse action
against employees for reporting injuries and illnesses.” Id. at 47,606.
51.

While OSHA identified the three areas above as potential means to address the concern

alleged by some stakeholders at the public meeting, OSHA provided no regulatory text for the
public’s consideration in the supplemental notice despite the notice being labeled a Supplemental
Notice of Proposed Rulemaking. Id. at 47,605-10.
52.

The Agency also never defined what a “reasonable” or “unreasonable” reporting

procedure might be in the Supplemental Notice. Id. Instead, the Agency listed some examples
of policies that could be considered unreasonable, such as highly burdensome reporting
procedures or penalizing employees for failing to report an injury within a specific time period.
Id. at 47,608.
53.

In addition, OSHA sought comment on a variety of supposed “adverse actions” that

certain participants “mentioned” in the public meeting on the proposed rule that could impact
injury and illness reporting. Id. at 47,608.
54.

Numerous stakeholders, including several of the Plaintiffs, submitted comments to the

Agency on the Supplemental Notice. See 81 Fed. Reg. at 29,625.
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55.

Many objected to the nature of the Supplemental Notice, which consisted primarily of 18

questions, as being much more in the style of an Advance Notice of Proposed Rulemaking,
stating that it was in violation of the APA as it lacked sufficient notice of what would be required
and thus did not provide affected parties any meaningful opportunity to comment. Id. at 29,669.
56.

Other commenters objected to a completely undefined requirement for “reasonable”

reporting procedures, noting that such a requirement could be interpreted by OSHA as
prohibiting certain safety disciplinary programs, safety incentive programs, and workplace drug
and alcohol testing programs that have been shown to improve safety and health in the
workplace. Id. at 29,670.
57.

Commenters also highlighted OSHA’s announced intention to contradict the statutory

scheme for addressing allegations of retaliation through Section 11(c) of the OSH Act by
granting itself the authority to initiate claims even as it admitted that the statute does not permit
this:
The advantage of this provision [the unspecified proposed supplemental
regulation] is that it would provide OSHA with additional enforcement tools to
promote the accuracy and integrity of the injury and illness records employers are
required to keep under Part 1904. For example, under 11(c), OSHA may not act
against an employer unless an employee files a complaint. Under the additions to
the proposed rule under consideration, OSHA would be able to cite an employer
for taking adverse action against an employee for reporting an injury or illness,
even if the employee did not file a complaint.
79 Fed. Reg. at 47,607 (emphasis added).
The Final Rule
58.

Despite the significant opposition to the proposed rule and the issues identified in the

Supplemental Notice by a variety of stakeholders, on May 12, 2016 OSHA issued the Rule,
adopting almost all of the electronic recording and reporting obligations as originally proposed
and adding requirements related to “reasonable” employee reporting procedures. OSHA also
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proceeded to grant itself the authority to pursue retaliation complaints outside of the
congressionally mandated Section 11(c) process.
59.

The Rule was subsequently revised to make minor corrections on May 20, 2016.

60.

The Rule amends 29 C.F.R. §§ 1910.35, 1910.36, and 1910.41 and a copy is attached and

incorporated by reference.
61.

The Rule carried forward the proposal to require certain employers to electronically

submit their OSHA recordkeeping forms to the Agency. 81 Fed. Reg. at 29,692. Thus, the Rule
amended § 1904.41 to require employers that have 250 or more employees at any time during the
previous calendar year, to electronically submit once a year information from the OSHA 300
Log, Form 301, and Form 300A. Id. For employers with 20 or more but fewer than 250
employees in designated industries, employers are required to electronically submit Form 300A
Summary of Work-Related Injuries and Illnesses once a year to OSHA. Id. In addition, the Rule
provides that some employers that are not automatically covered by the requirements above may
be notified separately to submit certain records to the Agency. Id.
62.

The Rule does not require that employers submit the names or other personally

identifiable information to the Agency:
(2) If I have to submit information under paragraph (a)(1) of this section, do I
have to submit all of the information from the recordkeeping form? No, you are
required to submit all of the information from the form except the following:
(i) Log of Work-Related Injuries and Illnesses (OSHA Form 300): Employee
name (column B).
(ii) Injury and Illness Incident Report (OSHA Form 301): Employee name (field
1), employee address (field 2), name of physician or other health care professional
(field 6), facility name and address if treatment was given away from the worksite
(field 7).
Id. However, there is no exemption for employers submitting the number of employees, or hours
worked that are part of the Form 300A.

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63.

OSHA states in the Preamble to the Rule that it will take the work-related injury and

illness information submitted electronically by covered employers and will post such information
online to make it available to the public. 81 Fed. Reg. at 29,624-25. This online posting and
publication of employer injury and illness data will disclose business confidential information,
such as total number of employees and total number of employee hours from Form 300A.
64.

The Freedom of Information Act (“FOIA”) prohibits the government from releasing

“trade secrets and commercial or financial information obtained from a person [that is]
privileged or confidential.” 5 U.S.C. § 552(b)(4). OSHA has previously taken the position that
disclosure of the type of information to be made public by the Rule could cause substantial
competitive injury to employers. In New York Times Co. v. U.S. Dep’t of Labor, 340 F. Supp. 2d
394, 402 (S.D.N.Y. 2004), OSHA specifically stated that information from Form 300A was
exempt from disclosure under the Freedom of Information Act because such disclosure “can
cause substantial competitive injury.”
65.

OSHA claims that the “main purpose of this section of the final rule is to prevent worker

injuries and illnesses through the collection and use of timely, establishment-specific injury and
illness data” and that “employers, employees, employee representatives, the government, and
researchers may be better able to identify and mitigate workplace hazards and thereby prevent
worker injuries and illnesses.” 81 Fed. Reg. at 29,629 (emphasis added).
66.

The Rule also amended § 1904.35(b)(1)(i) to state that employer procedures for

employee reporting of work-related illnesses and injuries must be “reasonable” and that “[a]
procedure is not reasonable if it would deter or discourage a reasonable employee from
accurately reporting a workplace injury or illness.” 81 Fed. Reg. at 29,691.

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67.

OSHA provides no definition of what is a “reasonable” or “unreasonable” reporting

procedure in the regulatory text that employers must follow.
68.

Only in the preamble commentary to the Rule, does OSHA provide some examples of

procedures that it believes might be unreasonable. But the preamble offers only vague guidance
and mixed messages for employers regarding reporting procedures. For example, in describing
its position on timely reporting of injuries and illnesses, OSHA recognizes the interests of
employers in ensuring timely reporting of injuries and illnesses, but then notes a balancing of
fairness “to employees who cannot reasonably discover their injuries or illnesses” and the need
for understanding the “overriding objective of part 1904.” 81 Fed. Reg. at 29,670. OSHA then
states in undefined terms that “for a reporting procedure to be reasonable and not unduly
burdensome, it must allow for reporting of work-related injuries and illnesses within a
reasonable timeframe after the employee has realized that he or she has suffered a work-related
injury or illness.” Id. (emphasis added). An employer cannot have acceptable certainty that its
policy is appropriate until OSHA makes a post hoc determination of whether it is (or is not).
69.

In the preamble, OSHA also suggests that certain employee safety incentive programs

may be unreasonable under the Rule. See id. at 29,673.
70.

OSHA does not define what it means by employee safety incentive programs in the Rule;

however, the Agency notes that they “take many forms” and presumably some of these “forms”
are problematic in OSHA’s view. Id. OSHA suggests that the following programs might be
unreasonable under the Rule and therefore prohibited:
•
•
•

Entering all employees who have not been injured in the previous year in a
drawing to win a prize;
Rewarding a team of employees a bonus if no one from the team is injured over
some period of time;
Conducting an incentive program “predicated on workers remaining ‘injury
free’”;
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•
•

Rate-based incentive programs that reward workers for achieving low rates of
reported injuries and illnesses; and
Offering monetary incentives up to $1,500 for employees if zero recordable
injuries are reported.

81 Fed. Reg. at 29,673-74.
71.

OSHA also suggests in the preamble that mandatory post-injury drug and alcohol testing

might deter reporting of workplace injuries or illnesses and thus would not be “reasonable” under
the Rule. See id. at 29,673. As with the employee incentive programs described above, OSHA’s
regulatory text does not define precisely what type of drug and alcohol testing programs it finds
unreasonable and therefore unlawful. OSHA’s terminology shifts throughout the discussion,
referring to potentially problematic drug testing as “post-incident,” “post-accident,” or “postinjury.” See id. OSHA suggests in the preamble that the Rule might prohibit any “post-incident
testing” where the employer cannot determine that drug use was a likely contributor to the
incident. Id.
72.

In addition, the Rule added § 1904.35(b)(1)(iv) to explicitly prohibit employers from

“discharg[ing] or in any manner discriminat[ing] against any employee for reporting a workrelated injury or illness.” 81 Fed. Reg. at 29,692.
73.

This provision goes far beyond the substantive prohibition against discrimination and the

articulated procedures specified for discrimination claims found in Section 11(c) of the OSH Act.
Section 11(c) prohibits discrimination where an employee “has filed any complaint or instituted
or caused to be instituted any proceeding under or related to this Act or has testified or is about
to testify in any such proceeding or because of the exercise by such employee on behalf or
himself or others of any right afforded by this Act.” 29 U.S.C. § 660(c)(1). An employee who
allegedly suffered such discrimination may then “file a complaint with the Secretary,” who must
then conduct an investigation to determine whether discrimination occurred. Id. at § 660(c)(2).
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If the Secretary determines that there has been a violation, then the Secretary shall bring an
enforcement action in federal court to obtain injunctive relief, as well as any appropriate
reinstatement, rehiring, and backpay. Id.
74.

Congress enacted Section 11(c) to require a claim under the anti-discrimination provision

to be brought before a United States district court on behalf of an employee who files a
complaint with OSHA, placing jurisdiction with the United States district court to hear and
decide these matters.
75.

With this added provision in § 1904.35(b)(1)(iv), OSHA is circumventing the procedural

requirements provided in Section 11(c) and giving itself the right to pursue citations against
employers for certain alleged retaliatory conduct and giving the Occupational Safety and Health
Review Commission the jurisdiction to hear and decide these matters in contravention of the
statute and congressional intent, as OSHA admits in its explanation:
Section 11(c) only authorizes the Secretary to take action against an employer for
retaliating against an employee for reporting a work-related illness or injury if the
employee files a complaint with OSHA within 30 days of the retaliation. 29
U.S.C. 660(c).
* * *
The final rule allows OSHA to issue citations to employers for retaliating against
employees for reporting work-related injuries and illnesses and require abatement
even if no employee has filed a section 11(c) complaint.
* * *
OSHA anticipates that feasible abatement methods for violations of paragraph
(b)(1)(iv) will mirror some of the types of remedies available under section 11(c);
the goal of abatement would be to eliminate the source of retaliation and make
whole any employees treated adversely as a result of the retaliation. For example,
if an employer terminated an employee for reporting a work-related injury or
illness, a feasible means of abatement would be to reinstate the employee with
back pay.
81 Fed. Reg. at 29,671 (emphasis added).
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76.

The Rule also clarifies that 29 C.F.R. § 1904.36 is revised to state that Section 11(c) of

the OSH Act also prohibits retaliating against employees for reporting work-related injuries or
illnesses. 81 Fed. Reg. at 29,692.
77.

Finally, the Rule includes requirements that employers inform each employee of the

procedures for reporting work-related injuries and illnesses, that employees have the right to
report work-related injuries and illnesses, and employers are prohibited from discharging or in
any manner discriminating against employees for reporting work-related injuries or illnesses. Id.
at 29,691.
Effective Date
78.

The effective date of the Rule for the amendments to 29 C.F.R. §§ 1910.35 and 1910.36

was initially August 10, 2016. However, OSHA delayed the enforcement of 29 C.F.R. § 1910.35
to November 1, 2016 in order to provide more time for additional outreach to employers and
then again to December 1, 2016 in response to Judge Sam Lindsay’s request in another legal
challenge of this Rule in the U.S. District Court for the Northern District of Texas, Civil Action
No. 3:16-CV-1998-L.
79.

The effective date for the remaining parts of the Rule is January 1, 2017.

80.

The Rule constitutes a final agency action by OSHA.
FIRST CAUSE OF ACTION
Section 1904.41 and the Public Dissemination of Employee Work-related Injuries and
Illnesses Exceed OSHA’s Statutory Authority Under the OSH Act in Violation of the
Administrative Procedure Act

81.

Plaintiffs re-allege and incorporate by reference the allegations in paragraphs 1-80.

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82.

The Administrative Procedure Act, 5 U.S.C. § 706(2)(C), directs a reviewing court to

“hold unlawful and set aside agency action” that is “in excess of statutory jurisdiction, authority,
or limitations, or short of statutory right.”
83.

Section 1904.41 and the public dissemination of reports of employee work-related

injuries and illnesses exceed OSHA’s statutory authority, jurisdiction, and limitations under the
OSH Act. OSHA’s authority with respect to recordkeeping is limited, and Congress has not
given the Agency the authority to publish injury and illness data and confidential business
information, as it has with other regulatory agencies, such as the Mine Safety and Health
Administration, see, e.g., 30 U.S.C. § 813(h).
84.

For these reasons, Section 1904.41 and the Agency’s public dissemination of employee

work-related injuries and illnesses should be held unlawful and set aside.
SECOND CAUSE OF ACTION
Section 1904.41 and the Public Dissemination of Employee Work-related
Injuries and Illnesses is Arbitrary, Capricious, and Otherwise Contrary to Law in
Violation of the Administrative Procedure Act
85.

Plaintiffs re-allege and incorporate by reference the allegations in paragraphs 1-84.

86.

The Administrative Procedure Act directs a reviewing court to “hold unlawful and set

aside agency action” that is “arbitrary, capricious … or otherwise not in accordance with the
law.” 5 U.S.C. § 706(2)(A).
87.

In rulemaking under the APA, an agency acts arbitrarily and capriciously if it ignores

significant evidence in the record, draws conclusions that conflict with the record evidence,
relies on contradictory assumptions or conclusions, or fails to consider an important aspect of the
problem it purports to be remedying. Motor Vehicle Mfrs. Ass’n v. State Farm Mut. Auto. Ins.
Co., 463 U.S. 29, 43 (1983).

An agency must “consider [all] important aspect[s] of the

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problem,” and may not “offer[] an explanation for its decision that runs counter to the evidence
before the agency, or is so implausible that it could not be ascribed to a difference in view or the
product of agency expertise.” Id. An agency also has an “obligation to consider” alternatives
that are “neither frivolous nor out of bounds,” Chamber of Commerce v. SEC, 412 F.3d 133,
144-45 (D.C. Cir. 2005), and to respond to key comments that “if true, . . . would require a
change in [the] proposed rule,” La. Fed. Land Bank Ass’n, FLCA v. Farm Credit Admin., 336
F.3d 1075, 1080 (D.C. Cir. 2003) (internal quotation marks and citations omitted). An agency
also must acknowledge and offer a reasoned explanation for any change in its position. See FCC
v. Fox Television Stations, Inc., 556 U.S. 502, 515 (2009).
88.

In promulgating Section 1904.41 and determining that the Agency would disseminate

employee work-related injuries and illnesses in an online electronic database available to the
public, OSHA acted arbitrarily, capriciously, and otherwise contrary to law. The rulemaking
record fails to demonstrate any safety and health benefit from Section 1904.41 and the public
dissemination of employee work-related injuries and illnesses. The Agency failed to consider
evidence of reputational harm to businesses based on misleading information of the safety and
health efforts of employers. OSHA also failed to explain its change in position with respect to
the public release of information previously found by the Agency to be confidential and not
subject to public dissemination.
89.

For these reasons, Section 1904.41 and the Agency’s public dissemination of employee

work-related injuries and illnesses should be held unlawful and set aside.
THIRD CAUSE OF ACTION
Sections 1904.35 and 1904.36(b)(1) Exceed OSHA’s Statutory Authority Under the OSH
Act in Violation of the Administrative Procedure Act
90.

Plaintiffs re-allege and incorporate by reference the allegations in paragraphs 1-89.
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91.

The APA, 5 U.S.C. § 706(2)(C), directs a reviewing court to “hold unlawful and set aside

agency action, findings, and conclusions found to be . . . in excess of statutory jurisdiction,
authority, or limitations, or short of statutory right.”
92.

Sections 1904.35 and 1904.36(b)(1) exceed OSHA’s statutory authority, jurisdiction, and

limitations under the OSH Act. Section 11(c) of the OSH Act, 29 U.S.C. § 660(c), prescribes the
exclusive procedure for employee discrimination and retaliation claims pertaining to safety and
health in the workplace. Sections 1904.35 and 1904.36(b)(1) are contrary to Section 11(c).
93.

Congress did not provide OSHA the authority to perform enforcement actions or issue

citations on its own, without having received a complaint from an employee, for what it would
deem to be discriminatory or retaliatory actions.
94.

The Rule circumvents Congress’s determination to create a specific statutory scheme to

address discrimination and retaliation claims brought by employees through the procedures
specified in Section 11(c) of the OSH Act.
95.

OSHA claims authority under the Rule to request backpay and reinstatement for civil

citations of retaliatory conduct in the absence of a complaint from an employee. Nothing in the
OSH Act grants this authority to OSHA or to the U.S. Occupational Safety and Health Review
Commission that adjudicates contested OSHA citations.
96.

The Rule thus impermissibly conflicts with Congress’s carefully crafted legislation to

address alleged retaliatory action as it pertains to safety and health in the workplace and exceeds
OSHA’s authority under the OSH Act.
97.

For these reasons, Sections 1904.35 and 1904.36(b)(1) should be held unlawful and set

aside.

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FOURTH CAUSE OF ACTION
Sections 1904.35 and 1904.36(b)(1) are Arbitrary, Capricious, and Otherwise Contrary to
Law in Violation of the Administrative Procedure Act
98.

Plaintiffs re-allege and incorporate by reference the allegations in paragraphs 1-97.

99.

The Administrative Procedure Act directs a reviewing court to “hold unlawful and set

aside agency action” that is “arbitrary, capricious … or otherwise not in accordance with the
law.” 5 U.S.C. § 706(2)(A).
100.

In rulemaking under the APA, an agency acts arbitrarily and capriciously if it ignores

significant evidence in the record, draws conclusions that conflict with the record evidence,
relies on contradictory assumptions or conclusions, or fails to consider an important aspect of the
problem it purports to be remedying. Motor Vehicle Mfrs. Ass’n v. State Farm Mut. Auto. Ins.
Co., 463 U.S. 29, 43 (1983).

An agency must “consider [all] important aspect[s] of the

problem,” and may not “offer[] an explanation for its decision that runs counter to the evidence
before the agency, or is so implausible that it could not be ascribed to a difference in view or the
product of agency expertise.” Id. An agency also has an “obligation to consider” alternatives
that are “neither frivolous nor out of bounds,” Chamber of Commerce v. SEC, 412 F.3d 133,
144-45 (D.C. Cir. 2005), and to respond to key comments that “if true, . . . would require a
change in [the] proposed rule,” La. Fed. Land Bank Ass’n, FLCA v. Farm Credit Admin., 336
F.3d 1075, 1080 (D.C. Cir. 2003) (internal quotation marks and citations omitted). An agency
also must acknowledge and offer a reasoned explanation for any change in its position. See FCC
v. Fox Television Stations, Inc., 556 U.S. 502, 515 (2009).
101.

In promulgating Sections 1904.35 and 1904.36(b)(1), OSHA acted arbitrarily,

capriciously, and otherwise contrary to law. The Rule’s requirement that employers adopt
“reasonable” reporting procedures is so vague and ambiguous as to deprive employers of notice
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of their obligations under the Rule. Further, the rulemaking record does not support the need to
implement such a vague and ambiguous obligation, which has the potential to prohibit a myriad
of employer procedures and processes designed to improve workplace safety and health.
102.

For these reasons, Sections 1904.35 and 1904.36(b)(1) should be held unlawful and set

aside.
FIFTH CAUSE OF ACTION
OSHA Enacted Sections 1904.35 and 1904.36(b)(1) Without Proper Observance of
Procedure Required by Law in Violation of the Administrative Procedure Act
103.

Plaintiffs re-allege and incorporate by reference the allegations in paragraphs 1-102.

104.

The Administrative Procedure Act directs a reviewing court to “hold unlawful and set

aside agency action, findings, and conclusions found to be . . . without observance of procedure
required by law.” 5 U.S.C. § 706(2)(D).
105.

Under the APA, an agency must provide notice and an opportunity to comment on its

proposed rules. 5 U.S.C. § 553(c). In that notice-and-comment process, the agency must
respond to “relevant” and “significant” public comments, Home Box Office, Inc. v. FCC, 567
F.2d 9, 35 & n.58 (D.C. Cir. 1977), and to those comments “which, if true, . . . would require a
change in [the] proposed rule,” La. Fed. Land Bank Ass’n, 336 F.3d at 1080 (internal quotation
marks and citations omitted). “[A]n agency has a duty to consider responsible alternatives to its
chosen policy and to give a reasoned explanation for its rejection of such alternatives.” Farmers
Union Cent. Exchange, Inc. v. FERC, 734 F.2d 1486, 1511 (D.C. Cir. 1984).
106.

The rulemaking process OSHA used in promulgating the “supplemental” portions of the

Rule failed to provide interested parties with adequate and fair notice of the final rule and denied
interested parties an adequate opportunity to meaningfully comment. In doing so, OSHA’s
adoption of a broad and ambiguous rule, through which OSHA would seek to prohibit certain
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programs that improve workplace safety and health but that OSHA might deem unreasonable,
prejudiced Plaintiffs and their members.
107.

For these reasons, Sections 1904.35 and 1904.36(b)(1) should be held unlawful and set

aside.
SIXTH CAUSE OF ACTION
Section 1904.41 and the Public Dissemination of Employee Work-related Injuries and
Illnesses Violates the First Amendment to the U.S. Constitution in Violation of the
Administrative Procedure Act
108.

Plaintiffs re-allege and incorporate by reference the allegations in paragraphs 1-107.

109.

Under the Administrative Procedure Act, agency action shall be vacated and set aside

where it is contrary to constitutional right or privilege. 5 U.S.C. § 706(2)(B).
110.

The First Amendment’s Free Speech Clause protects against compelled speech. “For

corporations as for individuals, the choice to speak includes within it the choice of what not to
say.” Pacific Gas & Elec. Co. v. Public Utils. Comm’n of Cal., 475 U.S. 1, 16 (1986) (plurality
op.).
111.

The online posting and publication of employer injury and illness data will disclose

confidential business information, such as total number of employees and total number of
employee hours from Form 300A. OSHA has previously taken the position that disclosure of the
type of information to be made public by the Rule could cause substantial competitive injury to
employers in New York Times Co. v. U.S. Dep’t of Labor, 340 F. Supp. 2d 394, 402 (S.D.N.Y.
2004).
112.

The Rule violates the First Amendment because it forces employers to provide this

confidential business information to the public, and cannot survive any applicable level of
constitutional scrutiny.

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113.

The OSH Act cannot be construed to permit OSHA the authority to violate the First

Amendment rights of employers in this regard. Indeed, Congress did not intend for this to occur,
thus providing OSHA with only limited authority with respect to requiring employers to collect
and maintain injury and illness records. Had Congress wished to provide the authority to publish
such information, it would have done so expressly, as it has done in implementing statutes of
other regulatory agencies.
114.

For these reasons, Section 1904.41 and the Agency’s public dissemination of employee

work-related injuries and illnesses should be held unlawful and set aside.
SEVENTH CAUSE OF ACTION
Sections 1904.35 and 1904.36(b)(1) Violate the Fifth Amendment
to the U.S. Constitution in Violation of the Administrative Procedure Act
115.

Plaintiffs re-allege and incorporate by reference the allegations in paragraphs 1-114.

116.

Under the Administrative Procedure Act, agency action shall be vacated and set aside

where it is contrary to constitutional right or privilege. 5 U.S.C. § 706(2)(B).
117.

The Due Process Clause of the Fifth Amendment requires that regulated parties be given

fair notice of conduct that is prohibited or required. FCC v. Fox TV Stations, Inc., 132 S. Ct.
2307, 2317 (2012). “[R]egulated parties should know what is required of them so they may act
accordingly [and] … precision and guidance are necessary so that those enforcing the law do not
act in an arbitrary or discriminatory way.” FCC v. Fox TV Stations, Inc., 132 S. Ct. at 2317.
118.

The requirement in Section 1904.36(b)(1) that employers adopt “reasonable” reporting

procedures violates the due process protections provided for under the Fifth Amendment to the
U.S. Constitution. The requirement is so vague and ambiguous that it provides no guidance as to
what is acceptable or unacceptable with respect to employee injury and illness reporting

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procedures.

It subjects employers to citations and potentially significant penalties for

engaging—or not engaging—in conduct that is undefined by the Agency.
119.

For these reasons, Sections 1904.35 and 1904.36(b)(1) should be held unlawful and set

aside.
REQUEST FOR RELIEF
WHEREFORE, Plaintiffs respectfully request that this Court grant them the following
relief:
A.

A declaratory judgment and order that the Rule is unlawful for the reasons set
forth above;

B.

An order vacating and setting aside the Rule;

C.

An order awarding Plaintiffs their reasonable costs, including attorneys’ fees,
incurred in bringing this action; and

D.

An order granting such other and further relief as this Court deems appropriate.

Dated: January 4, 2017
Respectfully submitted,
/s/ Sam R. Fulkerson
Sam R. Fulkerson, OBA #14370 (Local Counsel)
McAfee & Taft A Professional Corporation
10th Floor, Two Leadership Square
211 North Robinson
Oklahoma City, OK 73102-7103
Tel:
(405) 235-9621
Fax: (405) 235-0439
sam.fulkerson@mcafeetaft.com

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JACKSON LEWIS P.C.
/s/ Bradford T. Hammock
Bradford T. Hammock (Lead - Pro Hac pending)
Tressi L. Cordaro (Pro Hac pending)
Raymond Perez (Pro Hac pending)
10701 Parkridge Boulevard, Suite 300
Reston, VA 20191
Telephone: (703) 483-8300
Facsimile: (703) 483-8301
HammockB@jacksonlewis.com
Tressi.Cordaro@jacksonlewis.com
Raymond.Perez@jacksonlewis.com
Attorneys for Plaintiffs

Of Counsel:
David Jaffe, Esq. (Pro Hac pending)
Felicia Watson, Esq. (Pro Hac pending)
National Association of Home Builders
of the United States
1201 15th Street, NW
Washington, DC 20005
Telephone: (202) 266-8200
Attorneys for Plaintiff National Association of
Home Builders of the United States

Steven P. Lehotsky (Pro Hac pending)
Janet Galeria (Pro Hac pending)
U.S. Chamber Litigation Center
1615 H Street NW
Washington, DC 20062
Telephone: (202) 463-5337
Attorneys for Plaintiff Chamber of Commerce
of the United States of America

31