Fifth Circuit Decision on NLRB ALJs Raises Constitutional Questions for OSHRC Removal Protections

Quick Hits

• The Fifth Circuit held that dual for-cause removal protections for NLRB administrative law judges (ALJs) are unconstitutional under Article II of the U.S. Constitution, as they unduly insulate ALJs from presidential oversight.
• For-cause removal protections for NLRB Board members were also found likely unconstitutional, except where the agency mirrors the Federal Trade Commission structure as described in Humphrey’s Executor v. United States.
• The decision affirms that district courts have jurisdiction to enjoin ongoing agency proceedings on constitutional grounds, and that being subjected to an unconstitutional proceeding constitutes irreparable harm.

The court found that two layers of for-cause removal protection, where ALJs may be removed only for cause by the Merit Systems Protection Board (MSPB), whose members themselves are only removable for cause, violate the separation of powers. This structure impedes the president’s ability to ensure the faithful execution of the laws.

The court determined that for-cause removal protections for principal officers (such as NLRB Board members) are constitutionally suspect unless the agency is a “mirror image” of the Federal Trade Commission (FTC), with features such as statutory party-balancing and limited executive power. The court also affirmed that district courts may enjoin agency proceedings based on these constitutional challenges, and that participation in an unconstitutional proceeding is itself irreparable harm.

Application to OSHRC and OSHRC ALJs

OSHRC ALJs are subject to the same dual for-cause removal protections as NLRB ALJs. Under the Fifth Circuit’s reasoning, these protections are likely unconstitutional, as they similarly insulate ALJs from presidential control. OSHRC is led by three commissioners, removable by the president only for cause. While OSHRC is a multimember adjudicatory body, it lacks statutory party-balancing and exercises only adjudicatory (not executive or policymaking) authority. The constitutionality of for-cause removal protections for OSHRC commissioners is less clear. If OSHRC is deemed sufficiently similar to the FTC in Humphrey’s Executor v. United States, the protections may be upheld; otherwise, they may be vulnerable to challenge. The court’s decision supports the ability of parties before OSHRC to seek injunctive relief in district court, challenging the constitutionality of ALJ and commissioner removal protections and halting ongoing proceedings.

Conclusion

The Fifth Circuit’s decision casts doubt on the constitutionality of dual for-cause removal protections for OSHRC ALJs and raises questions about the protections afforded to OSHRC commissioners. Parties before OSHRC may now have a viable path to challenge the agency’s structure in district court, potentially impacting the validity of OSHRC proceedings and the agency’s future operations. Employers and practitioners may want to closely monitor further developments and consider the potential for constitutional challenges in ongoing and future OSHRC matters.

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.

Follow and Subscribe
LinkedIn | Instagram | Webinars | Podcasts