CHARLESTON — A federal judge has already granted a preliminary injunction to halt layoffs within coal-related programs at the Morgantown National Institute for Occupational Safety and Health facility, but the leader of the U.S. Department of Health and Human Services wants the entire case dismissed.

Attorneys for HHS Secretary Robert F. Kennedy Jr. filed a reply last Friday in support of a motion to dismiss a lawsuit filed in April seeking to have the Morgantown NIOSH Respiratory Health Division fully restored and continue health surveillance programs through the Coal Workers’ Health Surveillance Program.

The U.S. District Court for the Southern District of West Virginia issued a preliminary injunction on May 13 on behalf of Harry Wiley, a retired coal miner from Kanawha County, ordering those reductions in force for the NIOSH Respiratory Health Division be halted and employees reinstated.

But attorneys for Kennedy argue that Wiley’s claims should be dismissed because he lacks standing and his case is moot. They assert that because the Coal Workers’ Health Surveillance Program (CWHSP) has resumed operations and the plaintiff has now been able to submit additional medical evidence, the injury he initially claimed no longer exists.

“To be sure, the Respiratory Health Division (“RHD”) at the Morgantown, West Virginia, NIOSH facility has returned to work, and the CWHSP is accepting medical examinations for review,” wrote Assistant U.S. Attorney Fred Westfall. “In fact, since those changes took place, (Wiley) has submitted new medical evidence…That new medical evidence will be processed in due course. Thus, Plaintiff’s claimed injury no longer exists, and even if he originally had standing to pursue his claims, they are now moot.”

Kennedy began his reductions in force (RIF) at NIOSH and other HHS agencies and programs on April 1. Approximately 200 jobs would be eliminated at the Morgantown NIOSH as part of a nationwide reduction of approximately 2,400 NIOSH jobs.

NIOSH, an agency which reports to the CDC, conducts research into workplace-related injuries and illnesses. In Morgantown, NIOSH conducts research on coal-related health issues, such as respiratory diseases like Black Lung, traumatic mine injuries, and coal mine safety.

Miners can participate in black lung screening programs offered through employers that are submitted to NIOSH, and underground coal mine operators either offer NIOSH-approved medical exams or provide written notice of arrangements for medical examinations made by NIOSH. Miners can also submit an application to the CWHSP providing evidence of black lung at their own expense, which Wiley did last November.

In his complaint, Wiley had claimed he had received no response from NIOSH to his Part 90 application by CWHSP. But HHS attorneys were able to show that NIOSH did respond to Wiley in December. HHS attorneys also pointed to correspondence within NIOSH regarding Wiley’s case.

HHS argues the case should be dismissed since employees at the Morgantown NIOSH facility were already returning to work. Due to pressure from members of West Virginia’s congressional delegation, HHS reinstated some NIOSH employees at its Morgantown facility, with 100 recently being returned to full-time status. HHS had cut approximately 900 NIOSH jobs, leaving just 10% of NIOSH’s workforce remaining.

Additionally, attorneys for Kennedy reiterate arguments regarding the lack of sovereign immunity waiver for Wiley’s claims under the Administrative Procedure Act (APA) and that the alleged agency action was not a final agency action reviewable under the APA. HHS argues that the RIF notices to NIOSH employees were not considered a final action by the department.