Safety Perspectives From the Dallas Region: Challenging OSHA’s Judicial Process

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Frank Davis: Hey, good morning, everyone, and welcome to another installment of the Dallas Region OSHA podcast. This is Frank Davis. I’m broadcasting to you from Dallas, Texas. And I’m talking to my law partner, John Surma, who’s sitting high up in Ogletree Towers down in Houston. Good morning, John.

John Surma: Good morning, Frank. Or maybe I should say good afternoon because who knows what time we’re actually recording this, but yes, hi from atop One Allen Center in Downtown Houston. It’s good talking with you. It’s good talking with our audience. I’m really looking forward to talking about the topic we have today. I’m going to let you introduce that for our audience.

Frank Davis: So, John Surma out of our Houston office, who is on board with me for this discussion this morning, along with an associate out of our Houston office, Ryan Swink. They have pooled their legal talents together, and they are currently seeking injunctive relief against the United States Department of Labor, specifically addressing the constitutionality of Occupational Health and Safety Review Commission administrative law judges, aka OSHRC ALJs. So, John, whatever gave you the idea to go…and I mean, after all these years, since the early ’70s, this system’s been in place. What gave you the idea to go and file here in 2025 an application for injunction against the Department of Labor OSHRC ALJs?

John Surma: Well, and this probably doesn’t come as a surprise to anybody who’s listened to our podcasts in the past, but the impetus for this, the idea behind this actually came from something that you and I have talked about in the past, which is Judge Sim Lake’s order in another case that was filed in the Southern District of Texas as relates to the OFCCP and their method of adjudicating matters. And quite honestly, this probably isn’t the remedy that you engage in and kind of the ordinary case, but this was one that we felt was particularly egregious.
This was a case where OSHA had issued a willful citation against a client in a case where, quite frankly, the facts didn’t really justify the citation, let alone citing it as a willful violation. And had it been maybe a little bit closer call, maybe if it was other than serious or serious, we wouldn’t have kind of engaged in this extraordinary measure. But given the nature of what happened, we just felt that this was worth putting the effort into it. And fortunately for us, I guess, the client agreed that this made sense.

Frank Davis: So, the case you were talking about that gave you the idea, the OFCCCP case decided by Judge Sims Lake, that was a decision from a United States District Court in Houston Division, that’s the Southern District of Texas Houston Division. For the non-lawyers listening, the way the courts are structured, and actually maybe I don’t have to describe this because you’ve seen all the litigation around Trump’s executive orders, but the district court is the lowest level federal court. Above the district court, you have appellate courts. For Texas, Louisiana, and Mississippi, we have the Fifth Circuit Court of Appeals, and then above the courts of appeals, we have the U.S. Supreme Court. So, that’s the structure. So, the decision in the OFCCCP case was actually ABM Industries v. the Department of Labor. That was a district court decision. Are you pursuing your application for injunctive relief in district court also, John?

John Surma: We are. We’re looking to do this in the Northern District of Texas.

Frank Davis: That’s where I sit, the Northern District of Texas. So, welcome to my neck of the woods and–

John Surma: Thank you. Thank you very much.

Frank Davis: Thank you. Thank you very much. The background though goes beyond the analysis that Judge Lake had in ABM Industries. It actually originates with the decision by the Fifth Circuit Court of Appeals is a case that was Securities Exchange Commission versus an individual named Jarkesy. And the Jarkesy decision is one that we’ve talked about on previous podcasts. I’m certain that that is the basis, at least part of the basis, for your request for injunctive relief. Am I right about that?

John Surma: Yeah. Well, actually it’s the majority of the basis for the effort to seek relief, and it’s kind of a uniquely Fifth Circuit theory, kind of a uniquely Fifth Circuit application because when the Supreme Court in SEC v. Jarkesy made that decision, they really only looked at one of the three reasons that the Fifth Circuit Court of Appeals said that this administrative law court system was unconstitutional. And this is one of those things where, because that is still good law in the Fifth Circuit Court of Appeals, even though the Supreme Court only chose one of the three options, in the Fifth Circuit, all three options apply. So, we’re using this more expansive, broader set of options that’s available in the Fifth Circuit for our case.

Frank Davis: Right. So, the Supreme Court first…actually, let me set that better. What were the three bases that the Fifth Circuit decided in Jarkesy?

John Surma: In the SEC case in Jarkesy, there were three things. And so, one of the things was that the claims, if they look like common law claims, meaning cases that existed, that you would be entitled to a trial before a district court, back in the time of the constitution, that you should have the right to a trial in a district court. So that’s claim number one. Claim number two is that because these violations, or because the Jarkesy case in the Fifth Circuit overruled Atlas Roofing v. OSHRC, which dates back to 1977, that you’re entitled to a jury trial because of the alleged violations of the act.
And then the third is that the current scheme for the appointment of the OSHRC administrative law judges violates the Appointments Clause, and kind of a companion to that is that the process violates the separation of powers doctrine. And so, because of those two kind of opposite sides of the same coin, those judges are improper. And then the last, we actually have a fourth reason, which is that because OSHRC lacks a quorum, and at this point there are no OSHRC commissioners, there’s only OSHRC ALJs, because they lack a quorum, it denies our client the constitutionally required right to a meaningful judicial review, meaning as it’s structured now, we can’t technically get out of the OSHRC process.

Frank Davis: Right. So only three of those were decided by the Fifth Circuit in the Jarkesy decision. Only three of those issues were decided in Jarkesy. The fourth that you just listed, the lack of a quorum is a new issue that I assume you are raising in your current application for injunctive relief in the Northern District of Texas.

John Surma: That’s correct. And it was not an argument that could be raised in the ABM case because in ABM, that court did not lack quorum. It’s only OSHRC, and OSHRC lacks a quorum now for several years.

Frank Davis: And actually, we’ll distinguish that in just a minute. That is an interesting point. But let’s break it down. So, the first element that you’re seeking injunctive relief, well, what is it that you’re specifically asking for in your application for injunctive relief?

John Surma: What we’re asking for is an order from the court that basically prevents OSHRC from litigating or from overseeing the litigation process, that we aren’t going to be subjected to either an ALJ or an OSHRC commission decision as a result of litigation.

Frank Davis: So, the application for injunctive relief says, “We don’t believe that the OSHRC, either the commission or the ALJs can hear the case,” and you’ve got specific reasons. And they’re all based on either Supreme Court or Fifth Circuit precedent. The first one is no jury. We don’t have a right to a jury in this case, and we’re entitled to a right to jury. That was a Supreme Court decision, and that’s how the Supreme Court confirmed the Fifth Circuit’s decision in Jarkesy. There are two others that come from the Fifth Circuit decision: one is the Appointments Clause. Do you want to give us a little more detail on how the Appointments Clause is implicated in this analysis?

John Surma: Well, so the Appointments Clause is implicated in this analysis because the process whereby the administrative law judges are appointed is unconstitutional. And we probably need to start off with what does the Appointments Clause state? The Appointment Clause states that, and this isn’t stated, but the president shall nominate and by and with the advice and consent of the Senate shall appoint ambassadors, other public ministers and councils, judges of the Supreme Court and all other officers of the United States whose appointments are not herein or otherwise provided for, and which shall be established by law. But the Congress made by law, that’s the appointment of such inferior officers as they think proper, and the president alone in the courts of law or the heads of department.

Frank Davis: Let’s stop right there. What is the current process for filling administrative law judge posts in the OSHRC scheme of things?

John Surma: So, in the OSHRC scheme of things, Congress vested in the chairman of OSHRC the appointment, the authority to appoint administrative law judges. And it’s our argument that the chairman of OSHRC is not the head of a department, and that there’s two reasons that they’re not the head of a department. The first is that OSHRC is not a Cabinet-level department, and it’s not like a Cabinet-level department, and therefore is not a department for purposes of the Appointment Clause. And the second reason is even if we assume that OSHRC is a “department” as used in the Appointments Clause, the chairman is not the “head of that department.” Instead, the three commissioners as a collective are the “head of the department,” and vesting that appointment authority in the chairman alone violates the Appointments Clause.

Frank Davis: I like that analysis. I guess that’s going to be a question of first impression for any federal court as it relates to OSHRC and ALJs. Am I right about that?

John Surma: Yeah, I would assume so. And I think what adds a little bit of intrigue to this is there are no OSHRC commissioners. And so even if you said that this was an acceptable process, you now have a headless department that, as recently as February, appointed an administrative law judge. And so, you essentially have a non-existent group of commissioners who are acting to appoint these judges. And so, I mean, I think there’s multiple layers of constitutional violation there, and I think this should have appeal, particularly given how the court’s structured right now.

Frank Davis: Yeah. It’s an incredibly interesting argument. Your third point was an issue of the ability of the president to remove an administrative law judge. How is that an issue that you’re raising as a basis to support your application for injunctive relief?

John Surma: Well, Frank, there was a fair amount of press this week. There was a Supreme Court decision that related to the president’s termination of a couple of folks, one with the NLRB and the other, correct me if I’m wrong, with the EEOC. And there was a challenge to whether or not the president could remove those people without going through the multiple-layer removal process that basically takes this out of the president’s hands and puts it into kind of an administrative process. And our argument here is that the power to remove inferior executive officers, no different than the power to remove superior executive officers, is supposed to be incident of the power to appoint them.
If you’re the executive and you’ve got the right to fire a certain level, so Cabinet-level people, and you have the right to appoint them, you should have the right to fire people. And the way the current structure is set up, Congress has limited the president’s authority to removing commissioners providing that they can only be removed for inefficiency, neglect of duty, or malfeasance of office. And our argument is that this limitation on presidential power is unconstitutional.

Frank Davis: And then your final argument is a unique argument. It’s not one that was ruled on by the Supreme Court. It’s not one that’s been ruled on by the Fifth Circuit, but an argument that because the Occupational Safety and Health Review Commission lacks a quorum of commissioners, and in fact right now it lacks any commissioner, that OSHRC, and this fundamentally makes sense, but that OSHRC has no authority to hear your cases absent having a quorum. How did you structure that argument?

John Surma: Well, so we start off with where does due process arise in this type of setting? And in this type of setting, it arises from the Fifth Amendment to the Constitution, which says that you can’t be deprived of life, liberty, or property without due process of law. And so, you’re supposed to be allowed an opportunity to be heard at a meaningful time and in a meaningful manner, and have whatever allegations are brought against you adjudicated in a meaningful time and in a meaningful manner. Statutorily, OSHRC is composed of three members that are supposed to be appointed by the president with the advice and consent of the Senate, no different than we see the Secretary of Labor or the Assistant Secretaries of Labor. It’s the same type of process.
And in order for OSHRC to have a quorum, they have to have two members of a quorum, and official action can only be taken on an affirmative vote of those two members. And so now we have essentially a process whereby we have no commissioners. At the time we did these filings, Commissioner Atwood was still in place, but we have no commissioners. And if you want to appeal what the ALJ does, you take it to the commission, and that becomes a final order of OSHRC unless an OSHRC commissioner directs that the report be renewed, unless the ALJ’s decision is renewed. And it’s only when we have a final order from OSHRC that we can take a case to a United States Court of Appeals.
And so, from the standpoint of where we stand today, because OSHRC cannot act, it cannot issue final orders, and it cannot give the U.S. Courts of Appeal the ability, the jurisdiction to review cases. So, we basically are being denied as a result of the fact that OSHRC lacks a quorum with the ability to get into the courts of appeals, which is a further denial of our due process rights.

Frank Davis: Now, are there any Supreme Court cases that discussed that concept, that failure to be heard timely results in a denial of due process?

John Surma: Yeah. I mean there’s a number of such cases. Yeah. There’s a case called Barry, and this is going to be another one where we’re going to argue over how you pronounce it, I say Barchi, which dates back to 1979, and that refers back to Armstrong v. Manzo, which is another Supreme Court case that goes back to 1965. I mean, there’s pretty clear precedent for this. And this is one of those things where, in a criminal context, we certainly appreciate the speedy trial right, and in this context, it’s not the same type of right. You don’t have the right to a speedy trial per se, but you do have a right to a trial in a meaningful time and in a meaningful manner.
And I know one of the things that you want to talk about is the laches argument. And laches is something that for the layperson, even for a lot of lawyers is difficult to understand, and I’ll let you talk about it more fully, but it’s the whole argument of if you let too much time pass, evidence disappears, people die, people move, people’s memories fade, et cetera, and you deny somebody a fair trial because you’ve essentially ended up in a situation where you’re denying them the evidence that they need in order to defend themselves by simply dragging this out too long.

Frank Davis: Yeah, I won’t talk more about laches, but that’s certainly, I think, a strong argument when you’re not able to get before a trier of fact in a timely way. So, where do we stand, or where does John Surma stand on his application for injunctive relief? Can we expect to see an order by the end of the day?

John Surma: No, we will not see an order by the end of the day. So, we have served…so let me back up because this is one thing I meant to mention earlier and probably need to reiterate it now. So, we have served OSHRC, we have served the Department of Labor, because when we filed this, we served Commissioner Atwood, and we also served the Secretary of Labor. And it’s not yet time for them to respond to this pleading. They will need to respond to it and the corresponding motion for injunctive relief that were filed; it was filed at the same time or served at the same time. And so, I’m looking probably somewhere down the road, another 15 days or so before we have appearances, and we’ll be able to set the hearing for preliminary injunction.
Obviously, the government’s going to be looking for an opportunity to engage in appropriate levels of briefing, et cetera. I am curious given that the U.S. Attorney’s Office is involved in the defense of these entities, and given one of Attorney General Bondi’s early memos about arguments that the U.S. Attorney’s Office is not going to defend, including arguments that a proceeding violates the SEC v. Jarkesy case, whether or not they’re going to actually take this up, whether they’re going to leave it to the folks at the Solicitor Labor’s Office, yeah, I’m just not sure how this is going to work out. In the underlying proceeding, we have agreed with the Solicitor of Labor that it’s appropriate to seek an order from the ALJ staying those proceedings until this proceeding is fully litigated.

Frank Davis: Yeah, that seems fair and just. So, the Department of Justice is assisting or is not assisting, because it seems to me if they do, you’ve got an admission against interest in that memo that the Department of Justice issued on February 20th, 2025, where they said, “Basically, we agree these ALJs are unconstitutional.”

John Surma: Well, so we reached out relative to the motion and whether or not they would agree to an entry of injunctive relief, and it was one of those where they responded the same day, whether they’ve worked that up the chain, whether they have taken a full fair look at this, we had to confer with them. And yeah, we conferred, and in conferring, they indicated that they were opposed to it. Now, whether with more time to reflect, to reconsider, or to consider the arguments, whether or not they’re going to still object to it remains to be seen, but for the time being, we’re working under the assumption that they’re going to be opposing it.

Frank Davis: Well, John, this is very interesting. I appreciate you talking us through it. Anything, any final thoughts you want to add that I didn’t think to ask about?

John Surma: No, I mean, I think that you did a great job asking the questions. I think that–

Frank Davis: Well, that’s what I was fishing for. So, thank you all. Thank you very much for coming out today.

John Surma: Yeah, no, I mean not that Frank fishes for compliments. Not that any of us do. No, I mean, I think you covered it pretty well. I mean, there are certainly, I mean, and you and I are going to probably in fall present a webinar on this and the arguments, there certainly is an hour or several hours’ worth of material here. I mean, what we talked about today is a very high-level overview, and it doesn’t get into the weeds. But I think you’ve covered things well for a podcast-length presentation, and I really truly appreciate you taking the lead on this and kind of walking me through this.

Frank Davis: Yeah, it’s my pleasure. I’m looking forward to it, and I look forward to seeing when the hearing’s scheduled. It’s one of those where I’m going to have to put on a suit and a necktie and come watch and see how it goes.

John Surma: I will have to put a suit on for the first time for work in a long, long time. And I’m not looking forward to it in certain respects. But in other respects, I’m just rubbing my hands together. Can’t wait for it to happen.

Frank Davis: Yeah, it’s always nice to get a little time in front of a bench, especially a federal bench. All right, John, great talking to you. I hope you have a good rest of the day. And to everybody who listened, thank you so much for listening, and tune in next time for another tale from the Dallas region.

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