D.C. Circuit Decision Holding That MSPB Members Are Subject to At-Will Removal May Impact OSHRC

Quick Hits

• The D.C. Circuit ruled that members of the MSPB were not insulated by statutory for-cause removal protections, emphasizing that at-will presidential removal is the constitutional baseline for entities exercising “substantial executive power.”
• The court’s decision focused on the MSPB’s role in issuing final, binding decisions with legal consequences, categorizing such actions as execution of the laws and thus requiring direct presidential accountability, leading to the severance of tenure restrictions rather than curtailment of adjudicatory authority.
• This ruling places OSHRC commissioners’ for-cause protections under scrutiny, potentially leading to their conversion to at-will status to align with accountability under Article II of the United States Constitution, while maintaining the adjudicatory functions of the Commission.

Two features of the opinion are especially consequential. First, the court focused on what the MSPB does, not how the U.S. Congress labeled it. Final agency adjudications that impose penalties, alter rights, or grant affirmative relief were characterized as execution of the laws, not as the “quasi-judicial” activity Humphrey’s Executor envisioned. Second, the remedy was severance of the tenure restriction, not curtailment of adjudicatory authority. That remedial posture mirrors the Supreme Court’s approach in Free Enterprise Fund v. Public Company Accounting Oversight Board (2010) and Collins v. Yellen (2021): when insulation violates Article II, courts remove the impediment to supervision rather than dismantle statutory schemes. Read together, these features provide a template for challenges wherever multimember bodies or adjudicators wield binding, remedial authority within the executive branch.

The decision also reframes “layering” concerns. Free Enterprise Fund condemned double for-cause barriers that meaningfully obstruct presidential oversight. Post-decision, MSPB members are removable at will, eliminating one such layer in the administrative hierarchy. Yet the opinion underscores that even a single for-cause barrier for principal officers who exercise substantial executive power is constitutionally suspect, and that inferior officers with stringent tenure protections can compound supervision problems when paired with insulated leadership. That analytic structure will shape litigation across adjudicatory agencies.

Implications for OSHA and OSHRC

The Occupational Safety and Health Review Commission (OSHRC) is a multimember adjudicatory body whose decisions are final within the executive branch and carry legal consequences, including confirmation or modification of civil penalties. Those features track the functions the D.C. Circuit deemed executive in nature. Applying the MSPB logic, courts are likely to scrutinize OSHRC commissioners’ for-cause protection and may sever it on the same theory: Humphrey’s Executor does not extend to principal officers who resolve cases with binding, remedial effect. Severance would preserve OSHRC’s adjudicatory jurisdiction while making commissioners removable at will, aligning accountability with Article II without disrupting ongoing case processing.

OSHRC administrative law judges (ALJs) remain protected by the Administrative Procedure Act’s (APA) “good cause” regime, enforced through the MSPB. With MSPB members now at-will, one layer of insulation above ALJs has been reduced. Still, litigants can argue that robust ALJ tenure—combined with Commission-level for-cause protections (unless severed)—creates an unconstitutional obstruction to presidential supervision under Free Enterprise Fund.

The Bottom Line

By invalidating the MSPB’s for-cause insulation and severing the restriction, the D.C. Circuit sharpened a doctrine that treats binding administrative adjudication as executive power requiring presidential control. That template places OSHRC commissioners’ tenure provisions under immediate pressure and invites renewed, though narrower, “layering” arguments about ALJ protections. The likely near-term outcome is not the unraveling of the Occupational Safety and Health Administration’s (OSHA) enforcement system, but rather the conversion of OSHRC leadership to at-will status—preserving adjudication while tightening Article II accountability.

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

This article and more information on how the Trump administration’s actions impact employers can be found on Ogletree Deakins’ Administration Resource Hub.

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