# Joon, LLC v. Walsh

> District Court, M.D. Alabama · May 4, 2022

URL: https://www.frixlaw.com/law-library/cases/9987791

## Case

- **Court:** District Court, M.D. Alabama
- **Decided:** May 4, 2022
- **Opinion:** 100trialcourt
- **Cited by:** 0 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/9987791

## How later opinions describe it (automated extraction)

- holding that petitioner had another adequate remedy and thus the district court did not have mandamus jurisdiction; remanding “with instructions to dismiss for want of subject- matter jurisdiction”
- explaining that mandamus is not appropriate “where a statutory method of appeal has been prescribed”
- explaining that the All Writs Act confines the federal court’s power to “issuing process ‘in aid of’ its existing statutory jurisdiction” and “does not enlarge that jurisdiction”
- noting that “a district court has broad discretion in shaping the scope of discovery” under Rule 26

## Opinion text

IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF ALABAMA
NORTHERN DIVISION

JOON LLC d/b/a AJIN USA, )
)
Petitioner, )
)
v. ) CIVIL ACT. NO. 2:22-cv-81-ECM
) [WO]
MARTIN J. WALSH, Secretary of Labor, et al., )
)
Respondents. )

MEMORANDUM OPINION and ORDER
I. INTRODUCTION
This mandamus action arises out of a set of citations the Occupational Safety and
Health Administration (“OSHA”) issued to Petitioner Joon, LLC d/b/a Ajin USA (“Ajin”)
in December 2016 based on a workplace incident in June 2016. Administrative
proceedings concerning these citations commenced in 2017 and remain pending before the
Occupational Safety and Health Review Commission (“OSHRC” or “Commission”). A
trial before an Administrative Law Judge (“ALJ”) appointed by the Commission is set for
May 9–27, 2022.
On February 25, 2022, Ajin filed a Petition for Writ of Mandamus in this Court
against Respondents Martin J. Walsh, the Secretary of Labor for the United States
Department of Labor (the “Secretary”); John B. Gatto, the ALJ; and the Commission
(collectively “Respondents”). (Doc. 1). On April 4, 2022, Ajin filed an Amended Petition
for Writ of Mandamus. (Doc. 9). Ajin also filed a motion to stay the May 9–27
administrative trial. On April 29, 2022, the Respondents filed a motion to dismiss and a
response in opposition to the motion to stay in which they argued, among other things, that
the Court lacks subject matter jurisdiction over this action. The Court then gave Ajin an
opportunity to file a brief addressing whether the Court has jurisdiction. For the reasons

explained below, the Court concludes that it lacks subject matter jurisdiction over this
action, and thus the Amended Petition is due to be dismissed without prejudice.
II. LEGAL STANDARD
District courts “have original jurisdiction of any action in the nature of mandamus
to compel an officer or employee of the United States or any agency thereof to perform a

duty owed to the plaintiff.” 28 U.S.C. § 1361. “[M]andamus is an extraordinary remedy
which should be utilized only in the clearest and most compelling of cases.” Cash v.
Barnhart, 327 F.3d 1252, 1257 (11th Cir. 2003) (per curiam) (quoting Carter v. Seamans,
411 F.2d 767, 773 (5th Cir. 1969)). “The test for [mandamus] jurisdiction is whether
mandamus would be an appropriate means of relief.” Id. at 1258 (citation omitted).

“Mandamus is appropriate only if (1) the plaintiff has a clear right to the relief requested;
(2) the defendant has a clear duty to act; and (3) no other adequate remedy is available.”
Serrano v. U.S. Atty. Gen., 655 F.3d 1260, 1263 (11th Cir. 2011) (per curiam). Failure to
satisfy these requirements constitutes a failure to establish mandamus jurisdiction. See
Lifestar Ambulance Serv., Inc. v. United States, 365 F.3d 1293, 1298 (11th Cir. 2004)

(holding that petitioner had another adequate remedy and thus the district court did not
have mandamus jurisdiction; remanding “with instructions to dismiss for want of subject-
matter jurisdiction”); Hakki v. Sec’y, Dep’t of Veterans Affairs, 7 F.4th 1012, 1037–38
(11th Cir. 2021) (holding that petitioner failed to establish mandamus jurisdiction because
he failed to establish a clear right to relief or a clear duty to act). As the party seeking
mandamus, Ajin “has the burden of demonstrating that his right to the writ is clear and
indisputable.” Serrano, 655 F.3d at 1263. Thus, Ajin cannot resort to mandamus where

there is an alternative “avenue of relief,” such as “where a statutory method of appeal has
been prescribed.” Lifestar, 365 F.3d at 1295 (citations omitted).
The All Writs Act provides that federal courts “may issue all writs necessary or
appropriate in aid of their respective jurisdictions and agreeable to the usages and principles
of law.” 28 U.S.C. § 1651. It is “a residual source of authority to issue writs that are not

otherwise covered by statute.” Pa. Bureau of Corr. v. U.S. Marshals Serv., 474 U.S. 34, 43
(1985). However, the All Writs Act “does not create any substantive federal jurisdiction”;
rather, “it is a codification of the federal courts’ traditional, inherent power to protect the
jurisdiction they already have, derived from some other source.” Rohe v. Wells Fargo Bank,
N.A., 988 F.3d 1256, 1263 (11th Cir. 2021) (citation omitted). A party seeking mandamus

under the All Writs Act must satisfy three requirements:
First, the party seeking issuance of the writ must have no other adequate
means to attain the relief he desires—a condition designed to ensure that the
writ will not be used as a substitute for the regular appeals process. Second,
the petitioner must satisfy the burden of showing that his right to issuance of
the writ is clear and indisputable. Third, even if the first two prerequisites
have been met, the issuing court, in the exercise of its discretion, must be
satisfied that the writ is appropriate under the circumstances.

United States v. Shalhoub, 855 F.3d 1255, 1263 (11th Cir. 2017) (quoting Cheney v. U.S.
Dist. Court for D.C., 542 U.S. 367, 380–81 (2004)).1

1 The All Writs Act also codifies the “common-law writ of mandamus against a lower court.” Cheney, 542
U.S. at 380.
III. BACKGROUND
A. Statutory and Regulatory Background
In 1970, Congress enacted the Occupational Safety and Health Act (the “Act”). Pub.

L. No. 91-956, 84 Stat. 1590 (Dec. 29, 1970). Congress’s “purpose and policy” was “to
assure so far as possible every working man and woman in the Nation safe and healthful
working conditions and to preserve our human resources” by, among other things,
“authorizing the Secretary of Labor to set mandatory occupational safety and health
standards applicable to businesses affecting interstate commerce, and by creating an

Occupational Safety and Health Review Commission for carrying out adjudicatory functions.”
29 U.S.C. § 651(b).
The Act empowered the Administrator of OSHA, as delegee of the Secretary of
Labor, to promulgate workplace safety regulations, investigate violations, issue citations,
and pursue civil penalties. See id. §§ 655, 657, 658, 659, 666. As relevant here, Congress

has contemplated three levels of violations of OSHA standards: willful, serious, and other-
than-serious. Id. § 666.
The Act also created OSHRC to adjudicate alleged violations of OSHA standards.
Id. § 661(a). If an employer contests a citation for violations of OSHA standards, an ALJ
initially presides over the contested case and makes a determination based on a trial-like

evidentiary hearing. Id. § 661(j). Parties can then seek discretionary review before the
Commission. Id. If not reviewed by the Commission, the ALJ’s decision becomes the final
order of OSHRC after 30 days. Id.
Congress empowered the Commission to promulgate procedural rules governing its
proceedings and provided that, in the absence of a different rule, its proceedings are governed
by the Federal Rules of Civil Procedure. Id. § 661(g). As relevant here, the Commission’s
rules provide that “[d]epositions . . . shall be allowed only by agreement of all the parties or

on order of the Commission or the [ALJ] following the filing of a motion of a party stating good
and just reasons.” 29 C.F.R. § 2200.56(a). Section 2200.52(b) governs the scope of document
discovery and adopts a “proportional to the needs of the case” standard based on Federal Rule
of Civil Procedure 26(b)(1). A party may petition the Commission for discretionary review
of the ALJ’s interlocutory decision. See 29 C.F.R. § 2200.73. “The petition is denied unless

granted within 30 days of the date of receipt by the Commission’s Executive Secretary.”
Id.
Judicial review of final OSHRC orders lies exclusively in the courts of appeals.
Persons aggrieved by an OSHRC final order “may obtain a review of such order in any
United States court of appeals for the circuit in which the violation is alleged to have

occurred or where the employer has its principal office”—here, the Eleventh Circuit—“or
in the Court of Appeals for the District of Columbia Circuit.” 29 U.S.C. § 660(a).
B. Factual and Procedural Background
Ajin is a Korean-owned automotive parts supplier that has operated a facility in
Cusseta, Alabama, since early 2008. In June 2016, a temporary employee at Ajin’s Cusseta

facility was killed while working on a piece of machinery. OSHA inspected the facility
and later issued citations to Ajin which largely focused on failures to follow
“lockout/tagout” procedures on the day the employee was killed. According to Ajin, an
OSHA representative initially informed Ajin that Ajin could expect a citation for five
serious violations of OSHA standards. However, in December 2016, OSHA issued Ajin a
citation for two serious violations with a proposed monetary penalty of $21,557; a citation
for twenty willful violations with a proposed monetary penalty of $2,494,180; and a

citation for one other-than-serious violation with no proposed monetary penalty, for a total
proposed monetary penalty of over $2.5 million. (Docs. 9-10, 9-11, & 9-12). Ajin contends
that OSHA treated Ajin more harshly than other non-Korean-owned companies with
respect to the number and characterization of the violations and that this disparate treatment
constitutes unlawful race-based agency enforcement.

Ajin alleges that additional circumstances suggest that OSHA harbored racial
animus towards Korean-owned companies. Two days after OSHA issued Ajin the
citations, OSHA issued a news release concerning the citations in which Assistant
Secretary of Labor Dr. David Michaels, then-head of OSHA, criticized Hyundai and Kia,
Korean-owned original equipment manufacturers (“OEMs”) with whom Ajin works, for

their high production targets. The news release also describes Ajin as “[b]ased in Korea.”
(Doc. 9 at 6). Additionally, in a March 2017 interview with Bloomberg, Dr. Michaels said
that he had visited Hyundai and Kia executives while attending a conference in Seoul to
“warn” them that OSHA had found safety violations at many of their Korean-owned
suppliers in the Southeast. (Id. at 6–7). The Bloomberg article also discusses the death of

the temporary employee at Ajin’s Cusseta facility. Ajin further alleges that, under
Dr. Michaels, OSHA had a “regional emphasis program” applicable only to suppliers in
“Region 4, where virtually all Korean-owned suppliers were located,” and “not to Region
5, where the Big Three Caucasian-owned automotive OEMs (Form, GM, and Chrysler)
and their suppliers” were located. (Id. at 8). According to Ajin, the regional emphasis
program expands the scope of OSHA investigations undertaken on a supplier’s premises.
Ajin contested the citations, which triggered a hearing before an ALJ appointed by

the Commission. See 29 U.S.C. § 661(j). The administrative proceedings are styled
Secretary of Labor, U.S. Department of Labor v. Joon LLC d/b/a Ajin USA, OSHRC
Docket No. 17-0053. During the discovery phase, Ajin sought to depose Billie Kizer and
Mike Shea, two OSHA officials who allegedly have firsthand knowledge about OSHA’s
decision to change the characterization of Ajin’s violations from serious to willful. The

Secretary objected to the depositions. Ajin moved the ALJ for permission to take the
depositions, which the ALJ denied on two grounds: (1) the officials lacked firsthand
knowledge of the facts; and (2) the officials’ testimony implicated the deliberative process
privilege and thus was not discoverable. Ajin petitioned the Commission for discretionary
review of the ALJ’s decision, which was denied by operation of 29 C.F.R. § 2200.73.

During discovery, Ajin also served on the Secretary Requests for Production of
Documents. As relevant here, the Secretary objected to four of the requests: Requests Nos.
15, 16, 17, and 18. (Doc. 9 at 15). Request No. 15 sought the “power point presentation
respecting the inspection covering June 20, 2016,” which had been prepared by OSHA
officials. Request No. 16 sought emails and other communications by certain OSHA

officials, between 2016 and the present, “regarding the inspection culminating in the
December 12, 2016 citations of Ajin or any other citation against Ajin.” (Id.). Request No.
17 sought internal OSHA documents and communication relating to OSHA”s “Region 4
automotive emphasis program.” (Id.). Request No. 18 sought documents “respecting the
creation and discontinuation of the partnership between HMMA2 and its Tier 1 suppliers
and Dr. David Michaels’ role in either.” (Id.). Ajin filed a motion to compel, which the
ALJ granted in part and denied in part. The ALJ required the Secretary to produce a subset

of documents responsive to Request No. 16—documents regarding the inspection
culminating in the December 2016 citations—but denied Ajin’s motion as to the remaining
requests on the grounds that the documents were either protected by the attorney-client
privilege or were irrelevant. The ALJ reasoned that the power point sought in Request No.
15 was attorney-client privileged because it had been “screened by attorneys.” The ALJ

further reasoned that the remaining documents were irrelevant to the issues in the case,
which the ALJ described as whether Ajin violated OSHA standards and whether those
violations were willful. Ajin petitioned the Commission for discretionary review of the
ALJ’s decision, which was denied by operation of 29 C.F.R. § 2200.73.
On February 2, 2022, Ajin filed a Petition for Writ of Mandamus in the Eleventh

Circuit, seeking an order requiring the ALJ to allow Ajin to depose Ms. Kizer and Mr. Shea.
In re Joon LLC d/b/a Ajin USA, No. 22-10349 (11th Cir. Feb. 2, 2022); (doc. 9-17). The
Eleventh Circuit denied the petition sua sponte. In re Joon LLC d/b/a Ajin USA, No. 22-
10349 (11th Cir. Feb. 8, 2022); (doc. 9-18). The Eleventh Circuit concluded that
“[m]andamus relief is not warranted in this case,” reasoning that it “lack[ed] jurisdiction

to order a federal agency to act.” (Doc. 9-18 at 4). The Eleventh Circuit further stated that

2 Ajin does not explain what HMMA is. It appears to the Court that HMMA may be an abbreviation for
Hyundai Motor Manufacturing Alabama, LLC. See Hyundai Motor Manufacturing Alabama,
https://www.hmmausa.com/ (last visited May 4, 2022).
Ajin “has or had the adequate alternative remedy of filing a petition for a writ of mandamus
in the district court.” (Id. at 5).
On February 25, 2022, Ajin filed a Petition for Writ of Mandamus in this Court,

requesting that the Court order the ALJ to (1) vacate his order denying Ajin’s motion for
permission to depose Billie Kizer and Mike Shea, and (2) grant Ajin’s motion for
permission to depose Ms. Kizer and Mr. Shea. (Doc. 1). On April 4, 2022, Ajin filed an
Amended Petition requesting that the Court also order the ALJ to order the production of
the documents sought by Ajin and denied by the ALJ. (Doc. 9). On April 22, 2022, Ajin

filed a motion to stay, requesting that the Court stay the administrative trial set for May 9–
27, 2022.
IV. DISCUSSION
Ajin seeks to invoke this Court’s jurisdiction under the Mandamus Act, 28 U.S.C.
§ 1361, and the All Writs Act, 28 U.S.C. § 1651. The Court will begin with the Mandamus

Act.
A. The Mandamus Act
Ajin asserts that the Court has subject matter jurisdiction under § 1361 because,
according to Ajin, the Eleventh Circuit said as much. That is incorrect. In its order denying
Ajin’s Petition for Writ of Mandamus, the Eleventh Circuit reasoned that Ajin “has or had

an adequate alternative remedy of filing a petition for a writ of mandamus in the district
court,” citing § 1361. (Doc. 9-18 at 5) (emphasis added). The Eleventh Circuit did not
determine whether the district court could properly exercise jurisdiction over such a
petition. To determine whether the Court has mandamus jurisdiction, the Court must
determine “whether mandamus would be an appropriate means of relief.” Cash, 327 F.3d
at 1258 (citation omitted). Failure to satisfy the requirements for mandamus relief
constitutes a failure to establish mandamus jurisdiction. See Lifestar, 365 F.3d at 1298;

Hakki, 7 F.4th at 1037–38. The Court now turns to whether Ajin has satisfied the
requirements for mandamus relief.
Ajin contends that it is entitled to mandamus relief and thus has invoked this Court’s
subject matter jurisdiction under § 1361. Ajin argues that it has a clear right to relief
because the ALJ’s order denying Ajin’s requested depositions contravenes recent Eleventh

Circuit precedent, Akridge v. Alfa Mutual Insurance Co., 1 F.4th 1271 (11th Cir. 2021);
the ALJ’s order denying Ajin access to certain documents was an abuse of discretion; and
Ajin has no other adequate remedy. The Respondents contend that Ajin lacks a clear right
to mandamus relief because the ALJ has broad discretion over discovery matters and Ajin
has an adequate alternative remedy: further administrative review of the ALJ’s final order

by the Commission and judicial review by the Eleventh Circuit or D.C. Circuit.
1. Clear Right to Relief Requested
Ajin argues that the ALJ’s order denying Ajin permission to depose Ms. Kizer and
Mr. Shea “disregards the responsibility to follow precedent in the circuit”—here, the
Eleventh Circuit—“where the violation occurred.” (Doc. 9 at 24). Ajin contends that

Akridge “makes clear that although ALJs have discretion to deny depositions of certain
witnesses when a 30(b)(6) witness is available, the opposite is true when the official bears
responsibility for key facts.” (Id.). Ajin further contends that the ALJ erred in denying the
depositions outright on privilege grounds, rather than permit the depositions and allow “the
party asserting the privilege to make the appropriate objections during the deposition.” (Id.
at 22).
Ajin also argues that the ALJ abused its discretion in denying Ajin’s motion to

compel the Secretary to produce certain documents, arguing that, contrary to the ALJ’s
decision, the documents sought are neither privileged nor irrelevant. Regarding privilege,
Ajin contends that the ALJ abused his discretion in concluding that the power point
presentation sought in Request No. 15 was attorney-client privileged. Ajin argues that the
fact the document was “screened by attorneys” is insufficient to render it privileged.

Regarding relevance, the ALJ reasoned that certain documents Ajin sought were irrelevant
to the issues in the case, which the ALJ described as whether Ajin violated OSHA standards
and whether those violations were willful. Ajin asserts that the ALJ’s description of the
case is “too narrow,” and the documents bear on the issues of (1) how and why OSHA
decided to change the characterization of Ajin’s violations from serious to willful; and

(2) whether unlawful racial animus affected OSHA’s issuance and characterization of
Ajin’s citations, which is “[c]entral to Ajin’s defense.” (Id. at 27–28).
“[T]he conduct and extent of discovery in agency proceedings is a matter ordinarily
entrusted to the expert agency in the first instance . . . .” Hi-Tech Furnace Sys., Inc. v.
F.C.C., 224 F.3d 781, 789 (D.C. Cir. 2000) (alteration in original) (citation omitted).

Federal regulations governing prehearing discovery confirm that the OSHRC ALJ has wide
discretion in discovery matters. OSHRC has incorporated Rule 26(b)(1)’s proportionality
standard under which discovery must be “proportional to the needs of the case.” Compare
29 C.F.R. § 2200.52(b), with Fed. R. Civ. P. 26(b)(1). This standard gives a trial judge
“great discretion in defining the scope of discovery.” Sec. Pest Control, Inc. v. Wells Fargo
Bank, Nat’l Ass’n, 339 F.R.D. 303, 307 (M.D. Ala.), amended in part, 532 F. Supp. 3d 1221
(M.D. Ala. 2020); see also Williams v. City of Dothan, 745 F.2d 1406, 1415 (11th Cir. 1984)

(noting that “a district court has broad discretion in shaping the scope of discovery” under Rule
26). For depositions, the ALJ’s discretion is arguably greater, as federal regulations prohibit
depositions absent agreement of the parties unless the ALJ or the Commission orders a
deposition based on a motion stating “good and just reasons.” 29 C.F.R. § 2200.56(a); see
also 29 U.S.C. § 661(g) (Federal Rules of Civil Procedure do not apply where OSHRC has

adopted a different rule). The Eleventh Circuit reviews discovery rulings of OSHRC ALJs
only for “abuse[] [of] discretion.” Edwin Taylor Corp. v. U.S. Dep’t of Lab., 814 F. App’x
498, 503 n.1 (11th Cir. 2020) (upholding ALJ decision to deny deposition).
The discretionary nature of the ALJ’s discovery rulings precludes mandamus. Section
1361 is intended to provide a remedy “only if the defendant owes [the plaintiff] a clear

nondiscretionary duty.” Heckler v. Ringer, 466 U.S. 602, 616 (1984). “Where a matter is
committed to discretion, it cannot be said that a litigant’s right to a particular result is ‘clear
and indisputable.’” Allied Chem. Corp. v. Daiflon, Inc., 449 U.S. 33, 36 (1980) (citation
omitted). Ajin repeatedly argues that the ALJ abused his discretion in his discovery rulings,
but mandamus “requires considerably more strained circumstances than does a mere abuse

of discretion.” In re Ralston Purina Co., 726 F.2d 1002, 1005 (4th Cir. 1984) (relying on
Daiflon).
Ajin’s reliance on Akridge for the proposition that it has a clear right to the depositions is
misplaced. In Akridge, the Eleventh Circuit held that the district court abused its discretion in
denying the plaintiff the opportunity to depose a high-ranking officer of the defendant employer.
1 F.4th at 1278. Critically, the Eleventh Circuit reviewed a discovery ruling on appeal from a
final judgment and did not apply the more stringent mandamus standard applicable here.

Additionally, the Eleventh Circuit viewed the district court’s ruling through the lens of the
Federal Rules of Civil Procedure, which are construed “liberally to allow for robust
discovery,” id. at 1276, not OSHRC’s rule, which prohibits depositions absent the parties’
agreement unless the ALJ or the Commission decides to order the deposition based on “good
and just reasons,” 29 C.F.R. § 2200.56(a). Moreover, assuming without deciding that the

Eleventh Circuit would reverse the ALJ’s decision not to allow Ajin’s requested depositions as
inconsistent with Eleventh Circuit precedent, “a party is not entitled to mandamus merely
because it shows evidence that, on appeal, would warrant reversal.” In re BellSouth Corp.,
334 F.3d 941, 953 (11th Cir. 2003).
With respect to the ALJ’s decision that a particular document Ajin sought was attorney-

client privileged, Ajin quarrels with the grounds for the ALJ’s decision. However, Ajin’s
argument falls short of showing a clear right to the document such that mandamus relief is
warranted. With respect to the ALJ’s decision that certain documents Ajin sought were irrelevant,
Ajin’s arguments that the ALJ abused his discretion are insufficient to warrant mandamus relief.
See Heckler, 466 U.S. at 616; Daiflon, 449 U.S. at 36. The Court also observes that Ajin did

not mention unlawful racial animus in its motion to compel to the ALJ. (See Doc. 9-7 at 13–19).
Instead, Ajin argued that the documents sought were “relevant to a principle on which [the
Secretary] has the burden of proof—the characterization of any violation in the citations that are
the subject of this action.” (Id. at 16–18). Ajin’s failure to present the racial animus argument to
the ALJ further undermines Ajin’s entitlement to mandamus relief on the basis of the ALJ’s
purportedly erroneous relevance determination. However, even if Ajin had presented this
argument to the ALJ and the ALJ still denied Ajin access to the documents, the ALJ’s ruling

would still at most be an abuse of discretion, which does not warrant mandamus relief.
Finally, Ajin argues that this case presents exceptional circumstances justifying
mandamus relief because the ALJ’s discovery rulings amount to a serious abuse of power.
Specifically, Ajin argues that the ALJ’s disregard of Eleventh Circuit precedent “as relevant and
applicable as Akridge” is a serious abuse of power that this Court should remedy immediately.

(Doc. 9 at 35). The Court is not persuaded. It does not follow from Akridge that an agency ALJ
commits a serious abuse of power when he, in his discretion, refuses to allow depositions of high-
ranking officials. Moreover, even assuming the ALJ’s decision was in contravention of Eleventh
Circuit precedent, Ajin has failed to persuade the Court that this is sufficient to constitute a serious
abuse of power justifying mandamus. Ajin cites Suarez-Valdez v. Shearson Lehman/Am. Ex.,

Inc., 858 F.2d 648, 649 n.2 (11th Cir. 1988), for the proposition that an order in
contravention of precedent warrants mandamus relief. In Suarez-Valdez, the district court
stayed its trial pending arbitration but ordered the parties to undergo discovery pursuant to
the Federal Rules of Civil Procedure. Id. at 649. The Eleventh Circuit granted mandamus
relief and ordered the district court to vacate the portion of its decision allowing for

discovery. Id. The Eleventh Circuit explained that the “district court has no discretion in
determining which arbitration agreements should be enforced because the Supreme Court
has said that all such agreements should be enforced,” and the district court’s refusal to
stay discovery contravened this precedent. Id. at 629 n.2 (emphasis added). A situation in
which the district court, according to the Eleventh Circuit, had no discretion under
applicable Supreme Court precedent, materially differs from the current situation in which
the ALJ undisputedly has discretion over discovery matters (and where depositions are

presumptively prohibited). At most, Ajin could demonstrate that the ALJ abused his discretion
and his discovery rulings should be reversed by a reviewing tribunal. These are not exceptional
circumstances justifying mandamus relief.
In sum, Ajin has failed to show that it has a clear right to the discovery it requested such
that mandamus relief is warranted. Accordingly, for this reason alone, Ajin has failed to

demonstrate that the Court may properly exercise mandamus jurisdiction over this action. But as
will be explained further below, Ajin cannot successfully invoke this Court’s mandamus
jurisdiction for a second independent reason: Ajin has an adequate alternative remedy.
2. Adequate Alternative Remedy
Ajin contends that no other adequate remedy is available because, without its

requested discovery, it will be forced to proceed without information that could reveal
unlawful discriminatory motive on OSHA’s part. Ajin further contends that “[n]o relief
from a late appeal can undo what is done,” (doc. 9 at 31), asserting that the reviewing court
cannot evaluate the impact of Ms. Kizer’s and Mr. Shea’s depositions if they do not testify,
(id. at 31 n.22), and that the reviewing court cannot evaluate the impact of documents not

produced. Thus, according to Ajin, the “only available remedy . . . on appeal is a remand
order, more discovery, and another round of litigation,” which “will result in Ajin having
the opportunity to spend more time and resources it doesn’t have trying to un-do an error
the ALJ shouldn’t have made in the first place.” (Id.). Ajin also argues that it will suffer
“practical irreparable injury” without immediate relief because the case affects Ajin’s
relationships with its customers and “potentially” affects Ajin’s ability to obtain future
financing because Ajin will be asked whether it is subject to pending litigation.

Ajin’s arguments are unavailing. When the administrative trial is over and the ALJ
issues a decision, Ajin may seek review with the Commission. See 29 U.S.C. § 661(j); 29
C.F.R. § 2200.92(a) (on review from an ALJ’s final decision, the Commission has
jurisdiction “to review the entire case”). If the Commission takes no action, the ALJ’s
decision becomes the final order of OSHRC after thirty days. See 29 U.S.C. § 661(j). Ajin

may then obtain judicial review of the final OSHRC order in the Eleventh Circuit or the
D.C. Circuit. Id. § 660(a). Thus, Ajin can challenge the ALJ’s discovery orders before
both the Commission and the court of appeals. Consequently, Ajin has other adequate
means to obtain its requested relief. See Lifestar, 365 F.3d at 1295 (explaining that
mandamus is not appropriate “where a statutory method of appeal has been prescribed”);

see also Hoever v. U.S. Dep’t of Homeland Sec., 637 F. App’x 565, 567 (11th Cir. 2016)
(per curiam) (holding that an immigrant in removal proceedings could not obtain
mandamus relief to review an immigration judge’s (IJ) interlocutory orders because the
immigrant had the alternative remedy of a hearing before the IJ, administrative appellate
review in the Board of Immigration Appeals, and judicial review in the Eleventh Circuit).3

It appears to the Court that Ajin seeks to invoke this Court’s mandamus jurisdiction to
circumvent the normal review process Congress has provided by statute, for which judicial

3 While the Court recognizes that Hoever is nonbinding, the Court finds its analysis persuasive.
review following a final agency order lies either in the Eleventh Circuit or the D.C. Circuit,
but not in this Court.
Ajin admits that it can appeal when the administrative trial is over, but it argues that

it should not have to wait because it will be forced to expend additional time and resources
to correct erroneous decisions the ALJ should not have made in the first place. Although
such an appeal may require Ajin to expend additional time and resources, “it is established
that the extraordinary writs cannot be used as substitutes for appeals, even though hardship
may result from delay and perhaps unnecessary trial, and whatever may be done without

the writ may not be done with it.” Bankers Life & Cas. Co. v. Holland, 349 U.S. 379, 383
(1953) (citations omitted). “[I]nconvenience, lost time, and sunk costs of such further
proceedings . . . are not considered the kind of irremediable harm that will satisfy the
stringent requirements for issuing a writ of mandamus.” Maloney v. Plunkett, 854 F.2d
152, 154–55 (7th Cir. 1988).

Additionally, the Court is not persuaded that either the case’s purported effect on
Ajin’s customer relationships or the case’s purported “potential” effect on Ajin’s ability to
obtain future financing renders later appellate review inadequate. While Ajin contends that
the case has called “undesirable attention” to Ajin and thus impacted its relationships with
customers, Ajin fails to provide specifics. Ajin does not allege that it has actually lost

customers because of the citations or the administrative proceedings, nor does Ajin identify
a specific threat that it will lose customers in the future. The Court does not suggest that
such specifics would be sufficient to demonstrate the lack of an adequate alternative
remedy; however, Ajin’s failure to provide such specifics further underscores its failure to
demonstrate entitlement to mandamus relief. And Ajin’s reference to the “potential” effect
on future financing is vague and insufficient to show that later appellate review is
inadequate. Moreover, even if the Court granted mandamus relief and Ajin obtained its

desired discovery, the administrative case will still proceed. Thus, the Court is not
persuaded that mandamus, even if warranted, would cure Ajin’s purported injuries. In sum,
Ajin “has not shown that it will suffer irreparable harm or demonstrable injustice if
resolution is delayed until the end of the case.” In re BellSouth Corp., 334 F.3d at 954.
Because Ajin has failed to show either a clear right to the discovery it seeks or the

absence of another adequate remedy, Ajin has failed to demonstrate that the Court has
jurisdiction over this action under § 1361. See Lifestar, 365 F.3d at 1298; Hakki, 7 F.4th at
1037.
B. All Writs Act
Ajin also seeks to invoke this Court’s jurisdiction under the All Writs Act, 28 U.S.C.

§ 1651. But the All Writs Act “does not create any substantive federal jurisdiction”; rather,
“it is a codification of the federal courts’ traditional, inherent power to protect the
jurisdiction they already have, derived from some other source.” Rohe, 988 F.3d at 1263
(citation omitted); see also Clinton v. Goldsmith, 526 U.S. 529, 534–35 (1999) (explaining
that the All Writs Act confines the federal court’s power to “issuing process ‘in aid of’ its

existing statutory jurisdiction” and “does not enlarge that jurisdiction”). As explained above,
the Court lacks jurisdiction under the Mandamus Act. Ajin identifies no other independent
basis for the Court’s jurisdiction. Thus, there is no jurisdictional basis upon which the
Court could issue a writ of mandamus “in aid of” its jurisdiction. See 28 U.S.C. § 1651;
Rohe, 988 F.3d at 1263. Accordingly, the Court lacks jurisdiction under the All Writs Act.
V. CONCLUSION

For the reasons stated, the Court concludes that it lacks subject matter jurisdiction
over this action. Accordingly, Ajin’s Amended Petition is DISMISSED without prejudice.
A separate Final Judgment will enter.
Done this 4th day of May, 2022.

/s/ Emily C. Marks
EMILY C. MARKS
CHIEF UNITED STATES DISTRICT JUDGE

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9987791. Public record. Not legal advice.