Unions, Green Groups Sue Feds Over PPE Shortage

By Alexis Shanes
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Law360 (October 8, 2020, 8:09 PM EDT) -- A coalition of a dozen labor unions and environmental groups on Thursday sued federal health and homeland security officials for failing to address personal protective equipment shortages during the COVID-19 pandemic.

The complaint, filed in D.C. federal court, names the U.S. Department of Health and Human Services and the U.S. Department of Homeland Security as well as Secretaries Alex Azar and Chad Wolf. The organizations said the agencies violated federal law by ignoring their August petition to invoke the Defense Production Act to alleviate PPE scarcity.

"In a stunning act of agency nonfeasance during this unprecedented health and national security emergency, the departments have ignored the petition," the complaint read.

The groups added that the agencies should respond immediately to the petition "with the mammoth action necessary to safeguard the millions of essential workers powering the country's survival, in spite of their own devastatingly disproportionate rates of mortality and morbidity."

In the complaint, the organizations said they were part of the approximately 30 unions and environmental organizations that filed a petition on Aug. 11 to HHS and DHS. The unions represent workers with jobs ranging from teachers and flight attendants to nurses and meatpackers. The virus, they said, has infected and killed thousands of their members.

The petition called on the secretaries to conduct an emergency national PPE inventory, designate PPE for essential workers, and work with private industry to manufacture and distribute additional supplies. It said the agencies should initiate such efforts by working with government contractors and creating financial incentives for domestic producers of PPE, according to the complaint.

The groups said Azar and Wolf failed to use the full authorities President Donald Trump granted them under the Defense Production Act in March to oversee coordinated PPE manufacturing, distribution and inventory, according to the complaint.

"Despite their lawful power to act boldly and urgently on this unprecedented crisis, Secretaries Azar and Wolf have woefully failed to utilize these powers to address the country's perilous PPE deficit," the complaint read.

The groups claimed Azar, Wolf and the agencies violated the Administrative Procedure Act by not responding to or acting on the petition within 15 days of receiving it.

Jean Su, director of the Center for Biological Diversity's energy justice program and counsel for the three environmental organization plaintiffs, said the federal government is "abandoning" frontline workers who will see the country through the COVID-19 crisis.

"We stand in solidarity with them and will do everything possible to prevent this tragic, preventable loss of life," she said in a statement. "They're being exploited, not unlike the abuse that corporations and this government inflict on the environment."

Counsel for the unions did not immediately respond Thursday to requests for comment. Spokespeople for HHS and DHS did not immediately return requests for comment Thursday.

The Center for Biological Diversity, Friends of the Earth and Labor Network for Sustainability are represented by Jean Su and Howard Crystal of the Center for Biological Diversity.

The unions are represented by Ralph DiPietro of DN Law Group LLC, and William Snape III of American University's Washington College of Law.

Counsel information for HHS, Azar, DHS and Wolf was not available Thursday.

The case is Amalgamated Transit Union et al. v. Azar et al., case number 1:20-cv-02876, in the U.S. District Court for the District of Columbia.

--Editing by Adam LoBelia.

For a reprint of this article, please contact reprints@law360.com.

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