Safety Perspectives From the Dallas Region: Challenging OSHA’s Authority in the Fifth Circuit

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Frank Davis: Hey, out there. This is Frank Davis with Ogletree Deakins, and I’ve got my law partner, John Surma, from Houston today, and we are here for our OSHA Dallas Region podcast. Today, our topic is a recently filed lawsuit up in Amarillo, Texas—go Amarillo, my hometown—by the Texas International Produce Association. They filed it against the Occupational Safety and Health Administration. And in this lawsuit that they filed on December 3rd, 2025, the Produce Association has asked the federal court in Amarillo to find that all of the OSHA, or most of the OSHA, regulations that we all adhere to on a daily basis are unconstitutional and should be withdrawn. And so, as I mentioned, I got John on the line with me, and we’re ready to talk about this today. Good morning, John.

John Surma: Hey, good morning, Frank. I’m looking forward to this conversation. This is one of my favorite topics right behind challenging the constitutionality of the Occupational Safety and Health Review Commission or OSHRC. And look forward to chatting with you and kind of prognosticating about what this case and litigation means for our clients, and by extension, for us.

Frank Davis: It’s amazing how many of these cases we’re seeing now. In my myopic world, dealing with OSHA and the National Labor Relations Board, we’re seeing lots of opportunities to challenge their judges, their regional officers. And now, we’ve got an opportunity to challenge the standards themselves that we’re all expected to live by. It’s not the first time this has been challenged, and we’ll talk about that a little bit in a minute, but I think it makes sense to start out with the general topic, why OSHA is authorized to make these regulations.

John Surma: Sure. And Frank, one of the things almost every time I talk to a group that I recommend folks do is to read the OSH Act. And in this case, the OSH Act is the mechanism or the tool by which OSHA is authorized to issue “any reasonable, necessary, or appropriate” regulation for employers that relates to occupational safety and health. And so, I mean, the grant or the delegation of rulemaking authority to the Occupational Safety and Health Administration is extraordinarily broad and doesn’t have a lot of limitations put on it. Back in the very, very early days of the OSH Act, they were authorized to essentially adopt wholesale, and they did adopt wholesale industry standards that were applicable to health and safety in the workplace. And they adopted hundreds of them, but that was only good for the first two years of the existence of OSHA. After that, OSHA had to engage in rulemaking, and they’ve engaged in pretty robust and substantial rulemaking ever since, albeit in the last, I don’t know, Frank, what do you think, 15 years, 20 years, the rulemaking has come at a much more reduced pace than it did in say, OSHA’s first 5 or 10 years.

Frank Davis: Yeah, I agree. It just seems like we’re constantly alerting and announcing that we’ve got these new rules that OSHA’s considering, and we talk about them for months, and frequently, they go nowhere.

John Surma: You mean the heat rule?

Frank Davis: Oh, that’s one of them, but that’s one of many, as you know. It’s interesting to me when I read this lawsuit filed by the Texas International Produce Association because they refer to the phrase you just referenced, any reasonable, necessary, or appropriate regulation that relates to occupational safety and health. And they say, “Look, this is unconstitutional. It violates the very first article of the U.S. Constitution that reserves to Congress the right to make laws.” And it says that essentially, Congress in passing the OSH Act and giving OSHA this authority to pass any reasonable or necessary rule, constitutes, and I like this quote, it’s interesting, it constitutes a “blank check from Congress with no meaningful restriction on what OSHA may do.” And clearly, this is their way of challenging the non-delegation doctrine that requires Congress to provide meaningful boundaries on agency discretion. But in this case, the argument is there are no perceptible boundaries on what rules OSHA can pass. What’s your sense about the success of that argument?

John Surma: I had a conversation with somebody yesterday, and Frank, you and I talk about this stuff on a fairly regular basis. Unfortunately for you, you’re not the only person that I talk about this stuff with. And maybe it’s unfortunate for the other people that I talk about this because I have a tendency to geek out on it, but there is some thought that it’s not going to go in the direction that Justice Thomas suggested this type of challenge should go in. And we’ll talk more about that a little bit later in the podcast. But I mean, given the composition of our Supreme Court, given the judge in Amarillo, given the Fifth Circuit Court of Appeals, it would seem to me that we have a reasonable basis to believe that this challenge could be successful. Albeit, there is some concern and is some thought, does there come a point with one of these levels or at one of these levels where one of the judges or one of the panels of judges essentially gets a little squeamish about the idea of basically having a workforce that doesn’t have the standards that, in many instances, they’re familiar with operating under over the last 15, 20, 30, 40 years. And will they simply think this is a step too far? And is the desired outcome or is the ultimate outcome here a little broader than they’re comfortable with? And so, are they going to kind of parse this out or piecemeal this out? And I don’t know that my crystal ball is any less clear than yours, but I’m a little unclear on that. And I’m not prone to prognosticate that this is definitely going to be successful, but I just have a feeling the way things are stacking up, this has got a pretty high likelihood of success.

Frank Davis: That’s interesting because the question that I’m fielding now regarding the likelihood of success is, well, the OSH Act has been around for 50 years, right? They’ve got all these standards that have been in fact, some of them for 50 years or more. And so, what’s changed to all of a sudden make them unconstitutional, allegedly? Of course, the first place you look is the recent Loper Bright Enterprises case that came out in 2024, right? It was that decision that the Supreme Court ruled that the law governing regulatory agencies, specifically with regard to fisheries, that the agencies had overreached in passing certain regulations that were going to require, I’m going to say fishermen, to pay to have monitors on their boats when they were out fishing. And the Supreme Court said, “That’s a new rule that doesn’t make sense.” And we think that that’s more than what Congress authorized you to pass.
That’s overturning what has been known in the past as the Chevron deference. But to your point, John, I mean, there’s a big difference between what happened to those national fisheries cases where they came out with a new standard that was going to really burden these fishermen as opposed to what this lawsuit by the associations are intending to do, which is reverse something that we’ve lived under for 50 years. So, I mean, how do you distinguish that analysis? I mean, how do they get away with saying, “Nevermind, everything people have adhered to for the last 50 years is no longer any good,” as opposed to making it on a look-forward basis?

John Surma: Well, I mean, we live in very, very interesting times from a number of perspectives. I’ve said that now for the last five years since the pandemic started. And courts are doing things that are simply unprecedented and certainly, we’re not here to talk about, as a for instance, the MSPB decision that came out of the D.C. circuit last week, but we’re seeing the Humphrey’s estate decision from the Roosevelt administration, as a for instance, being overturned and the two layers of protection that folks in federal government had enjoyed now going away. We live in truly unprecedented times from the standpoint of kind of the legal concept of stare decisis, which basically for the non-lawyers in the audience, that means kind of let that thing be. We’re overturning, and quite frankly, it seems every rock is being overturned, at least in certain respects.
And so, while it does not jibe and while it would expand way beyond Loper Bright, I think it’s very possible that the court says, “Look, it’s unconstitutional regardless of whether you’ve been doing it for 5 minutes, 5 years, or 50 years. And the fact that it’s been a practice or a custom for all that long doesn’t mean we’re going to turn a blind eye to it, and we’re going to allow it to go on.” No different than, as a for instance, during the Civil Rights Act 1964 was passed, ostensibly 100 plus years of practices and how people conducted themselves were changed. And so, I think that that could change.
On the other hand, if a fisherman is overly burdened by having a monitor in place, and we remove the monitor, ostensibly, the only negative outcome is the fishery is overfished, or the wrong kind of fish are caught, as opposed to people being injured or killed. And I think the people being injured or killed is what could give the courts some much greater reason for pause and actually prompt them to pause on this, and try to come up with outcomes that don’t involve kind of an immediate overthrow of every OSHA standard that’s been issued. And I should modify this slightly. In the complaint that the plaintiffs filed, there is a footnote, and they are not attacking the health standards, they’re only attacking the safety standards. So, it won’t eliminate all of the OSHA regulations. It would only eliminate—assuming that these plaintiffs got the relief they were seeking—it would only eliminate the safety standards that OSHA promulgates.

Frank Davis: I think that’s a good call out, and thank you for that. But talking about harms, right, the distinction between harms between fisheries and between produce, let’s say in this new lawsuit that just filed, the associations are claiming that they’re harmed because they’ve got this increased regulatory burden by an agency with no real limitations on the agency’s ability to burden the associations. And I found it interesting some of the examples they gave, and I think our listeners will identify with some of this. For instance, because the Association’s representing agricultural groups, it’s under part 1928 that they bring this challenge in large part. And one of the requirements is retraining annually on, the way they phrase it, how to drive a tractor, including how to turn it on and off. And I could just see many of our clients reacting that going, “Yeah, I mean, why do we have to do that every year?” Teach somebody how to turn a tractor on and off, just as an example, “Why do we do that training every single year and increase that burden on these operations?” And candidly, as you know, a lot of these operations are seasonal, so you probably don’t even get a full year’s worth of work out of them before you have to retrain them, right? And so, it’s interesting to see that that’s the tactic that they’re taking to say that these types of regulations—the safety regulations specifically under the AG standard—are highly burdensome and really intrude on their ability to do business. Then they cite back to another case, Contender Farms back from 2015, that says that this increased regulatory burden satisfies the injury and fact requirement that they must demonstrate when they’re applying for injunctive relief. And then they finally say, “If this delegation doesn’t violate the non-delegation doctrine, then nothing does. The non-delegation doctrine is a dead letter.” I was somewhat impressed with their phrasing and the way they brought it all together. Did you catch all that?

John Surma: I did. And the group that is representing the plaintiffs is, for lack of a better term, kind of one of these law firms that takes up certain causes. And I have found if you look at some of the writings that law firms like that, regardless of which side of the split political spectrum they’re on, they do tend to be well-written, and they do tend to include some really wonderful terms of phrase. Having said that, I do think that they’re right. I mean, if there is an example of an unconstitutional delegation of the power that Congress has to create law, it has to be under the OSH Act. And I’ve talked a lot historically about last year’s dissent that Justice Thomas filed when cert was denied in the Allstates Refractory case, and he basically pointing out that, at least in his opinion, as well as the learned opinion of several other justices, the OSH Act is the broadest delegation of the rulemaking authority that Congress has and exceeds what’s been granted any other agency.
Unfortunately, I think for the plaintiffs in this case, I do think that this could cause the court, the potential outcomes if we strip away all these safety rules, could result in these courts really, really, really being reluctant to say, “You know what? You’re right. This is too far. This is unconstitutional.” I don’t know where they would ultimately go, but I do think that there is some real fear and concern that if they make that decision, we’re suddenly going to have this dramatic increase in occupational injuries and illnesses, and quite frankly, deaths. And I don’t know where the courts are going to come out of that.
To me, another interesting point is, where is the administration going to come out in terms of defending it? The case that the Supreme Court heard this week that related to, I don’t remember if it was the FTC or the SEC, but it was another one of these where one of the commissioners or political appointees was removed. The U.S. attorney and the U.S. solicitor were not involved in those arguments. They did not defend the position of the government. And instead, the court had to appoint somebody to defend the government. So, I don’t know what the administration is going to do if they get one of these challenges. I mean, on one hand, I could see, given the executive order that came out early in the administration that essentially said, “We’re not going to defend any case where constitutionality based on the 15 cases or whatever it was is raised.” Does the U.S. attorney actually get involved in the defense of this? Does the solicitor labor actually defend this? I don’t know. We live in interesting times, don’t blink, life passes you by pretty quick. And it’s good to be alive now, but it certainly does bring a lot of uncertainty.

Frank Davis: Yeah. And uncertainty, defense lawyers aren’t crazy about uncertainty. So, it’s certainly something that we’re watching, certainly something we need to keep an eye on. I would note for anybody who’s listening in a state plan state, this is a federal lawsuit challenging the Federal OSH Act. So, you can’t expect an immediate impact or maybe even any impact on your state plan. And I’m specifically talking to New Mexico since it’s in the region to which it is in the region in which we talk about. However, assuming the judge grants injunction against federal OSHA says, “Federal OSHA in this region, you’re not authorized to enforce the safety regulations you’ve promulgated since 1971.” What does OSHA do? Do you see any recourse for OSHA?

John Surma: First of all, on the state plans, one of the things that I’ve been thinking about, if you take a state plan like Iowa or Indiana that essentially adopts the regulations–

Frank Davis: Or New Mexico.

John Surma: Well, New Mexico’s got some of its own, but I mean, those states that essentially adopt wholesale, the OSHA regulations, what happens there when the regulations that OSHA promulgated are ruled unconstitutional? And to be honest with you, I don’t have the answer to that question.

Frank Davis: I don’t either, but it’s going to depend on what their constitutions say. So, I’d rather not focus on the state plans for our purposes today.

John Surma: Yeah, no, no, no. I’m not suggesting that we focus on it, but it does raise an interesting question. I mean, look, if this is granted at federal OSHA, the General Duty Clause does not go away. So, OSHA is going to have the General Duty Clause. The health standards do not go away. And so, OSHA is going to have the health standards.

Frank Davis: They’ll have the health standards, and they’ll have the General Duty Clause. And by the General Duty Clause, you’re referring to the actual statutory clause, right?

John Surma: Correct.

Frank Davis: Under 5(a)(1).

John Surma: Yes, sir. And I mean, we know how creative OSHA can be currently with the use of the General Duty Clause. If they are no longer constrained by the court decisions and basically say that you cannot issue citation for General Duty Clause where a standard exists, I mean, you can anticipate, I think, that OSHA’s going to be issuing just a ton of General Duty Clause citations that remarkably are going to look a whole lot like the old standards looked, just now, rather than citing a standard in the alleged violation description or AVD, it’ll say General Duty Clause, employers have an obligation to maintain a workplace free of recognized hazards to it on this date, the employer failed to maintain a workplace free of recognized hazards in as much as their existed on that date and basically citing the standard as it currently exists.

Frank Davis: And they would use that as employer notice of the expectation?

John Surma: Yes, sir. Absolutely.

Frank Davis: And then for abatement, they’d have to come up with their own abatement, that’d be the element that would be missing because I think that’s a fair assessment of what would happen. I guess that lends us into the spinoff thinking about how we would respond to that once those citations get issued as 5(a)(1)s instead of as, as we’re used to seeing them, under the 5(a)(2) regulations.

John Surma: Yeah. And I mean, look, from a legalistic standpoint, I mean, I would anticipate the very first thing that OSHA does is seek an injunction to prevent the order from going into effect to allow them to appeal it up either to the Fifth Circuit or to the Supreme Court and there being the concomitant stay. And so, I mean, I don’t think if this case ends up early January, mid-January in front of this judge, I don’t think that this immediately day after the judge issue or the day the judge issues his decision or her decision, I don’t think that immediately brings an end to OSHA regulations. I think there’s a lot more wrangling that goes on beyond that.

Frank Davis: I got that. But in the meantime, what are the companies our clients’ left with, right? It’s just more uncertainty. And so, does that make it worthwhile to continue to try to resolve these cases or do you contest citations during that period on a wait and see basis? In fact, maybe in this period, starting today, are you seeing any patterns from clients with regard to efforts to resolve these cases?

John Surma: Well, I mean, what I’m seeing is several clients considering when they get their complaint and with the shutdown, there was that order that came out from Judge Bell that extended the deadline.

Frank Davis: Talk about unconstitutional.

John Surma: Well, I wasn’t going to… I thought about that, and I pulled back on that, but that’s a topic for another podcast, but extended by 45 days from the day the cases were docketed with OSHRC, the deadline for the solicitors to file complaints. But a number of clients are contemplating, do we go ahead and mount these kinds of challenges in our case? And I think you’re going to see a lot of clients giving a lot of consideration to, does this challenge make sense in our case?

Frank Davis: Yeah, I think that’s probably the right way to phrase it right is certainly no recommendations about one approach or the other, but just an awareness of what’s out there and the options that are available. And that’s what I’m seeing as well. Clients are just taking a step back to see what happens because we just can’t predict it at this point.

John Surma: Right. Absolutely can’t. But as I said earlier, we live in incredibly interesting times. I’m happy to be alive at this point in history. It’s just, I mean, there’s all kind of law, et cetera, being created that in the last 29, 30 years that I’ve been doing this, hasn’t been created. This is brand new stuff.

Frank Davis: It is an interesting time for lawyers anyway, because of the constitutional questions being created, and you and I both are very interested in history. And so, this really kind of ties in to our general nerdy interests on the side. It’s regretful for companies and our clients, the uncertainty that’s facing everyone at this time. I think this was a good talk. We’re going to be looking for the blog to follow here shortly, and I really appreciate you taking time to visit with me this morning. It’s always good to catch up.

John Surma: And Frank, it’s my pleasure. And stay in touch. We’re going to be seeing a lot moving over the holidays here.

Frank Davis: No doubt, no doubt. Take care, everyone. Thanks for listening. Talk to you next time.

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