Judge orders NIOSH respiratory jobs restored; Congress members report 100+ jobs back

Berger ordered that there be “no pause, stoppage or gap” in congressionally mandated protections and services for miners, and that Department of Health and Human Services Secretary Robert Kennedy Jr. — as head of the agency that houses the NIOSH — certify compliance with her ruling within 20 days.

Berger’s ruling came the same afternoon as members of West Virginia’s congressional delegation said that more than 100 employees would return to their jobs permanently at NIOSH’s facility in Morgantown, which had been decimated by Trump administration staff cuts.

Miner advocates had pressured the Trump regime to reverse course in its gutting of NIOSH and its Coal Workers' Health Surveillance Program, established through federal law in 1969 and widely credited for saving and extending miners’ lives through black lung screenings it has provided to miners at no cost to them.

The work of the Coal Workers' Health Surveillance Program had been effectively halted, which miner allies decried as devastating amid a sharp long-term rise in black lung throughout central Appalachia as increasingly younger miners cut into thinning coal seams, inhaling more toxic silica dust as a result.

A HHS official declined to comment directly on Berger’s order or reports from West Virginia members of Congress of restored NIOSH jobs late Tuesday afternoon, saying that the Coal Workers' Health Surveillance Program “will continue to meet the needs of our nation’s miners.”

“As the agency streamlines its operations, the essential services for these Americans provided by NIOSH will continue,” the HHS official said in an emailed statement, alluding to miners and firefighters served by NIOSH resources.

Judge found HHS action ‘arbitrary and capricious’

Judge Berger found that Wiley is likely to establish sufficient connection to and harm from the NIOSH cuts to pursue his claims since he is an active coal miner with diagnosed black lung and had no way to access protections from a federal resource to limit dust exposure without the Coal Workers' Health Surveillance Program.

That resource is known as Part 90, a program named after a section of the Title 30 Code of Federal Regulations that gives miners with occupational lung disease the right to be transferred to a low-dust environment without having their pay reduced and with protection against termination or other discrimination.

“Miners will needlessly die if they close this office,” Beckley-based lawyer Sam Petsonk — who specializes in representing coal miners and co-filed the lawsuit on Wiley’s behalf — told the Gazette-Mail last month.

Berger noted court testimony from current and former NIOSH employees that all agency workers who performed Coal Workers' Health Surveillance Program-related duties were needed to maintain essential program functions — and that HHS failed to present evidence to the contrary.

Berger cited a lack of evidence that HHS has had any plan to provide services required by federal law that had been terminated. The judge dismissed the HHS argument that the allegation that the Coal Workers' Health Surveillance Program had been terminated was “speculative” because HHS had issued public statements about a possible reorganization.

“Firing people does not insulate arbitrary and capricious agency action from review,” Berger noted, brushing aside the feds’ defense of their personnel decisions.

Nearly all NIOSH Respiratory Health Division employees were briefly called back to the office last week but then returned to administrative leave and have been unable to perform their job duties, Berger observed. Most employees received reduction in force or “RIF” notices on April 1 with a termination date of June 2, Berger noted.

Sen. Jim Justice: ‘You freeze everything’

Sen. Shelley Moore Capito, R-W.Va., cited, in a Tuesday afternoon statement, an “understanding from” Kennedy that over 100 Morgantown NIOSH employees would permanently return to the job.

“The health and safety of our [West Virginia] workers, including our miners, is of the utmost importance and I will always advocate for their wellbeing,” Capito said.

Sen. Jim Justice, R-W.Va., and Rep. Riley Moore, R-W.Va. — whose district includes the NIOSH Morgantown site — also welcomed what they reported was the return of 100-plus employees.

Justice, a coal magnate whose mines have a long history of safety and health violations, doubled down on the Trump administration’s approach to the NIOSH cuts.

“As I have said before: The way you tackle a problem is you freeze everything, you stop everything for a time period where you can really get your hands around it, and then make the right decisions,” Justice said in an X post Tuesday.

Cathy Tinney-Zara, president of American Federation of Government Employees Local 3430 in Morgantown, previously estimated about 40 to 45 workers had returned to work from administrative leave, with 185 bargaining unit employees at NIOSH in Morgantown targeted for reductions in force.