New Challenges Loom for OSHA and OSHRC Amid Quorum Issues, Potential ALJ Removals, and Recent Supreme Court Jurisprudence

Quick Hits

• OSHRC, an independent federal agency that resolves disputes between employers and OSHA, has lacked a quorum on its three-person panel since April 2023, leaving pending cases unresolved. The current term of the Review Commission’s only member expires on April 27, 2025.
• The Supreme Court’s Loper Bright Enterprises v. Raimondo and SEC v. Jarkesy decisions regarding administrative agencies’ statutory interpretations and adjudication processes may impact OSHA enforcement and OSHRC adjudicative procedures.
• The Office of the Solicitor General recently announced that it would no longer defend certain protections for administrative law judges. This position could create opportunities for employers to challenge the authority of OSHRC ALJs.

Background on OSHRC

OSHRC is an independent agency that reviews and resolves disputes between employers and OSHA. OSHRC was created by Section 12 of the Occupational Safety and Health Act of 1970 (OSH Act). It is a three-person panel that requires two members to have a quorum. Without a quorum, OSHRC cannot act, though a quorum is not required to select a case for review.

OSHRC’s members are appointed by the president, subject to the advice and consent of the U.S. Senate. A contest of a citation is heard by one of OSHRC’s administrative law judges (ALJs). The ALJ’s decision becomes final within thirty days unless an OSHRC commissioner designates the case to be heard at the Commission level. If the case is not so designated, the employer can seek further review in one of the federal courts of appeal.

Since April 2023, OSHRC has not had a quorum, and as a result, the thirty cases pending review have remained in limbo—some for as long as four years. Until it has a quorum, those cases will remain in their current status without adjudication. The term for the one remaining member of OSHRC, Cynthia L. Attwood, expires on April 27, 2025.

Recent Supreme Court Jurisprudence Related to Administrative Agency Authority

At the end of the Supreme Court of the United States’ 2023–2024 term, the Court issued decisions in Loper Bright Enterprises v. Raimondo and SEC v. Jarkesy that significantly altered the landscape associated with administrative actions, including OSHA citations and subsequent litigation.

Loper Bright reversed decades of so-called Chevron deference to federal administrative agencies’ interpretations of ambiguous statutes, and Loper Bright’s reasoning can reasonably be expected to form the basis for challenges to OSHA’s application of Section 5(a)(1) of the OSH Act, also known as the General Duty Clause, among other applications. Jarkesy related to the constitutionality of the process for adjudication of administrative matters by the SEC and is proving to be the basis of a number of challenges to various administrative adjudicative bodies function, including the manner in which OSHA citations are adjudicated. One such example is Judge Sim Lake’s order enjoining the adjudication of citations by OSHRC ALJs.

The DOJ Weighs In on ALJs

In what appears to be an opening for even further challenges, on February 20, 2025, the U.S Department of Justice’s (DOJ) Office of the Solicitor General issued correspondence to Senator Charles E. Grassley (R-IA) concerning multilayer restrictions on the removal of administrative judges.

In that correspondence, Acting Solicitor General Sarah M. Harris stated that “the Department of Justice has concluded that the multiple layers of removal restrictions for administrative law judges (ALJs) in 5 U.S.C. 1202(d) and 7521(a) violate the Constitution, that the Department will no longer defend them in court, and that the Department has taken that position in ongoing litigation” (referencing a matter pending in the Third Circuit Court of Appeals).

The letter continued, stating:

In Free Enterprise Fund v. PCAOB, 561 U.S. 477 (2010), the Supreme Court determined that granting “multilayer protection from removal” to executive officers “is contrary to Article II’s vesting of the executive power in the President.” Id. at 484. The President may not “be restricted in his ability to remove a principal [executive] officer, who is in turn restricted in his ability to remove an inferior [executive] officer.” Ibid.

A federal statute provides that a federal agency may remove an ALJ “only for good cause established and determined by the Merit Systems Protection Board on the record after opportunity for hearing before the Board.” 5 U.S.C. 7521(a). Another statute provides that a member of the Board “may be removed by the President only for inefficiency, neglect of duty, or malfeasance in office.” 5 U.S.C. 1202(d). Consistent with the Supreme Court’s decision in Free Enterprise Fund, the Department has determined that those statutory provisions violate Article II by restricting the President’s ability to remove principal executive officers, who are in turn restricted in their ability to remove inferior executive officers.

Looking Ahead

Clearly, the new position espoused by the Office of the Solicitor General creates new opportunities for employers facing OSHA citations to challenge the process by which those citations are adjudicated. Most narrowly interpreted, this changed position offers employers an opportunity to challenge the ALJs appointed to hear their cases as being unconstitutional due to the multiple layers of protection afforded them. On a broader scale, this new position might give employers the opportunity to challenge the entirety of the OSH Act, or at least Section 12.

Whatever path employers take, it seems a near certainty that OSHA and employers will face a whole new world in the near future when it comes to their interactions and any issued or pending citations.

Ogletree Deakins’ Workplace Safety and Health Practice Group will continue to monitor developments and will provide updates on the Workplace Safety and Health blog as additional information becomes available.

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