UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT

FLOWER WORLD, INC., No. 21-35641 Plaintiff-Appellant, D.C. No. v. 3:21-cv-05305- RJB JOEL SACKS, Director of the Washington Department of Labor and Industries; CRAIG BLACKWOOD, OPINION Acting Assistant Director of the Washington Department of Labor and Industries, in their personal capacities; DOE, through X, in their official capacities as employees of the Washington Department of Labor and Industries, Defendants-Appellees.

Appeal from the United States District Court for the Western District of Washington Robert J. Bryan, District Judge, Presiding

Argued and Submitted June 10, 2022 Seattle, Washington

Filed August 11, 2022 2 FLOWER WORLD V. SACKS Before: Sandra S. Ikuta and Eric D. Miller, Circuit Judges, and Dean D. Pregerson,* District Judge.

Opinion by Judge Ikuta

SUMMARY**

Civil Rights

The panel affirmed the district court’s dismissal of a complaint for failure to state a claim and held that certain mandates issued by the Governor of Washington to address the public health crisis caused by the spread of coronavirus (COVID-19) were not preempted by the Occupational Safety and Health Act.

In May 2020, the Governor issued Proclamation 20-57, “Concerning the Health of Agricultural Workers,” and an addendum, “Agricultural COVID-19 Requirements” (collectively, the “Proclamation”). The Proclamation acknowledged the hazards posed by “the worldwide spread of COVID-19” and prohibited “any agricultural employer from continuing to operate beyond June 3, 2020, unless the employer complied with all provisions of the Agriculture COVID-19 Requirements – Provisions for All Worksites and Work-Related Functions.”

* The Honorable Dean D. Pregerson, United States District Judge for the Central District of California, sitting by designation. ** This summary constitutes no part of the opinion of the court. It has been prepared by court staff for the convenience of the reader. FLOWER WORLD V. SACKS 3

The panel first held that plaintiff’s challenge to the Proclamation was ripe for review because Washington’s Department of Labor & Industries’ Division of Occupational Safety and Health had issued a citation to plaintiff for violation of the requirements set forth in the Proclamation and imposed a $4,200 fine that had to be paid within fifteen working days. There was nothing speculative about this enforcement action.

The panel held that the Proclamation was not preempted because the requirements in the Proclamation did not relate to an occupational health and safety standard promulgated by the Occupational Safety and Health Administration (OSHA). In light of the Supreme Court’s reasoning in NFIB v. OSHA, 142 S. Ct. 661 (2021), OSHA lacked the authority to promulgate a public health measure that would regulate the general risk of COVID-19 in the workplace. Because OSHA could not promulgate such a federal standard, none of its existing regulatory standards could preempt a state’s general public health and safety measures addressing the threats posed by COVID-19. Rejecting OSHA’s broad interpretation of its existing regulations as applying generally to COVID hazards in the workplace, the panel construed the regulations cited by plaintiff as addressing specific occupational hazards caused by workplace processes that result in pollution at the workplace, not the hazard of COVID-19 or other viruses more generally. Accordingly, the panel held that the Proclamation was not preempted by the Occupational Safety and Health Act. 4 FLOWER WORLD V. SACK