Safety Basics XIV: Legal Strategies for Challenging OSHA Citations on Judicial Review

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John Surma: Welcome everybody. This is the Ogletree Deakins Safety Basics series. This is a 17-part series of podcasts that provides a high-level overview of occupational safety and health law. This is the 14th in that series of episodes. This episode is on judicial review. Joining us today to discuss this topic is Houston superstar, Ryan Swink. Ryan, welcome aboard. Thank you for agreeing to join me. Welcome.

Ryan Swink: Good morning, John. Happy to be here. Thanks for having me.

John Surma: Well, let’s get going with this, and let’s talk about judicial review in the context of the OSHA arena. So, you get an OSHA citation, it happens to a lot of employers. OSHA did about 35,000 inspections back in fiscal year 2023 the last year for which we have data. How do I get my day in court?

Ryan Swink: Well, you’ve got to take several steps before what most people would consider a court. Step one is going to be contesting the citation, which has to be done within 15 working days of receipt. From there, you go to your hearing before the OSHRC administrative law judge. Some people might consider that their day in court, but I think a lot of people wouldn’t. If you disagree with that ALJ’s decision, you appeal it to the OSHRC commissioners. Currently, there are none, so we’re not entirely sure who you appeal it to, but you still have to file that petition to the OSHRC commissioners. From there, OSHRC can take up your case and issue a ruling, or they can elect not to. Either way if you disagree with OSHRC’s decision, or they don’t take up your case, you can petition the circuit court of appeals within 60 days, and that will be your first opportunity to get in front of a court or judges who are appointed by the president with the advice and consent of the Senate.

John Surma: Well, Ryan, you alluded to something, and I’m going to address it head on. First of all, with regard to the OSHRC situation, could you explain that comment about how there’s no OSHRC commissioners?

Ryan Swink: Yeah. So as of April 2025, the last OSHRC commissioner who had been appointed and approved retired. OSHRC consists of three commissioners that serve in six-year terms that are staggered every two years. In theory, the way it’s supposed to work is every two years the president appoints a new commissioner or reappoints a commissioner. The Senate confirms them, and we have a full panel of three commissioners who can decide appeals from the administrative law judges or make ultimate determinations as to citations, at least from the agency perspective. Since I think it’s about 2022 or 2021, there have only been two commissioners. While that’s not a full commission, that is enough to make a quorum. So OSHRC could act. And I believe prior to Attawood’s retirement in 2024, for the two years before that she was the only commissioner. So, it wasn’t entirely clear that we at least had a decision maker, a decision maker who really could only decide, I guess, to accept a petition for review but couldn’t actually rule on it. And so, we’re in that no man’s land of, well, what is the legal effect of the commission being entirely empty?

John Surma: And you also eluded a little bit to the OSHRC ALJs. Or You said something that may have planted a seed in people’s minds that there may be some question about the legitimacy of the OSHRC ALJs could you explain that a little bit?

Ryan Swink: Yeah. So actually, you and I are taking up a challenge to the legitimacy of the OSHRC ALJs. There are a couple of issues with just generally the structure of how OSHRC was established by Congress. There is an issue with the appointments’ clause. There’s an issue with removal protection for both OSHRC commissioners as well as their ALJs. And then there’s an open question or developing question about whether or not employers are going to be entitled to a trial by jury/a trial in an article three court before a judge who’s appointed by the president with the advice and consent of the Senate.

John Surma: And just one last point clarification on the first group of things that you spoke about here today in the podcast. You mentioned that you can petition the circuit court of appeals within 60 days. Now that doesn’t mean within 60 days of receiving the citation, that means within 60 days of after you appeal the ALJs order, filing the appeal with OSHRC and OSHRC not taking your case up. Is that correct?

Ryan Swink: That’s correct. After the ALJs decision is docked with OSHRC, OSHRC has 30 days from that date to accept review. If they don’t accept review after the 30 days, the ALJs decision becomes the decision of OSHRC. They could take up review order briefing, which would extend the process, but if they don’t, then your 60-day clock runs from the 30 days from the ALJ filing their decision with OSHRC.

John Surma: Moving on a little bit. So, which court of appeals or which circuit court of appeals does an employer appeal to?

Ryan Swink: So, that is actually going to be a matter of strategy. So, the statute allows employers to appeal to three different potentially circuit courts. You can appeal to the circuit court of appeals for the D.C. circuit. You can appeal to the circuit court of appeals for the location in which the violation is alleged to have occurred. And then you can also appeal to the circuit court of appeals that has jurisdiction over the location for the employer’s principal office. And so, when you’re even early on generating your trial strategy or your contest strategy, that is one of the things that you want to consider. So technically OSHRC is not going to be bound by the rulings of any individual intermediate court of appeal so any circuit court. However, in practice generally the administrative law judges are going to follow the precedent of the circuits in which the case will ultimately be appealed. So, if there is a circuit split or favorable authority on an issue that’s relevant to your case, you’re going to want to know that early on and start priming the pump with the ALJ for this is the circuit authority that we’re going to want you to apply or that you should apply.

John Surma: And before the court of appeals, when you’re doing your appeal, what level of legal scrutiny, what legal standard applies to that review?

Ryan Swink: So, that is going to certainly depend on the issues that you’re going to be raising. So, as to factual determinations, the circuit court of appeals is going to apply a substantial evidence standard. It’s a wishy-washy, it’s not entirely clear. There’s no black and white definition. The closest you can really find is what a reasonable person would accept is enough evidence to support a conclusion but that again turns on who is a reasonable person, what is enough. So, the factual determinations are going to be viewed with a lot of deference to the ALJ and their interpretation of credibility and whether or not fact A, B and C support inference D.
The one area in which you might have the ability to make a factual challenge is going to be ultimately there has to be some form of admissible evidence that supports the conclusion. So almost like a no evidence or a JNOV standard in federal court, roughly the equivalent of that. And then as for legal conclusions, they’re basically reviewed for arbitrary or capriciousness or whether or not there’s an abuse of discretion. That falls into a couple of categories that you can raise. Generally speaking, it’s going to be, was it a reasonable interpretation of the regulation at issue? An interesting point to note about this is that if there is an appeal, at least prior to the recent developments in the Supreme Court in terms of Chevron deference and agency deference. The deference actually goes to the DOL, not to OSHRC. So if OSHRC takes a look at a regulation and says this is what it means, but prior to that, the Secretary of Labor has issued guidance saying no, this is what it means, technically the court is going to give deference to the Department of Labor’s interpretation as opposed to OSHRC, which is strange when you consider the fact that the Department of Labor is the prosecuting agency.
I think that’s one of the things that we’re seeing now in more recent Supreme Court decisions that are questioning just the general deference that it gives to agencies. One of the other grounds that you could also consider is in excess of statutory jurisdiction. However, at least in the OSHA context, OSHA has to really overstep their statutory authority when you consider the grant of rulemaking authority that Congress gave it. It’s extremely broad anything affecting health and safety in the workforce. So, an example of OSHA going too far was the emergency temporary standard for the COVID-19 vaccinations. But again, that is just a really gross overstepment of statutory authority, at least as the law stands now.
We’re seeing a lot of challenges currently to executive authority in terms of delegation from Congress. And I think probably most importantly is some of the challenges that we’re seeing currently as to President Trump’s tariff authority. And so, I was actually reading one of the federal trade court’s opinion that initially blocked President Trump’s ability to issue these tariffs unilaterally. And as I was reading through this opinion, I’m just thinking, man, this court is making a really great argument for why Congress over delegated authority to the executive agency in the context of OSHA. If you were to replace it and make the…it’s an interesting issue that’s developing because from a political perspective, the argument that they’re making in the context of tariff authority might be harmful to the argument that the government has the authority to issue the regulations that it is in the OSHA context. I think it’s certainly something that we’re going to see some shifting on from the Supreme Court and just from a balance of powers perspective going forward.

John Surma: I want to go back to something that you talked about earlier, and you mentioned that we’re prosecuting a case involving a constitutional challenge and challenging both OSHA and OSHRC. The highlight is that we’re looking at the appointment clause, the removal protection issue, trial by jury, and the fact that OSHRC doesn’t have a quorum so it can’t act. Could you expand on each of those a little bit?

Ryan Swink: I guess we can just go in order. The appointments clause of the constitution says that inferior officers can be appointed by the capital H heads of departments capital D. The Supreme Court has interpreted that clause to mean essentially the head of a cabinet-level department. In the context of OSHRC, ALJs have been held by many courts to be inferior officers. However, the statute provides that they are appointed by the chair of OSHRC. The question then becomes is OSHRC going to be one of these department level or cabinet-level capital “D” departments? And I think it’s hard to make the argument that it is given that it doesn’t really have the policymaking authority that other cabinet-level officers have. And then also when you consider the fact that all of the cabinet-level officers have been held to serve at the pleasure of the President .so they can be removed by the president for any reason at any time, however, OSHRC commissioners can’t. And so that funnels into the second issue, which is the removal protection that is afforded to both OSHRC commissioners as well as their administrative law judges. The statute provides that both commissioners and ALJs can only be removed for certain statutorily set forth reasons. And then it also piggybacks into the administrative procedures act and creates essentially a second level of protection.
So, the Fifth Circuit has actually held that such removal protections are unconstitutional for ALJs in other contexts. And so, part of the argument that we’re making is that’s equally applicable to even OSHRC ALJs. OSHRC goes even beyond that in that the removal protection not only applies to the ALJs, it also applies to the OSHRC commissioners, which I think is going to be a difficult thing for the government to overcome in our case. The next point is the trial by jury issue. So, I think anyone who practices in this area is familiar with the Atlas Roofing decision from the Supreme Court in the ’80s. Essentially what Atlas Roofing said in the context of the right to a civil trial by jury is that Congress has the ability to create new public rights, which are not civil actions that are covered by the Seventh Amendment in which you’re not entitled to a trial by jury. And the gravamen of that argument is that those are not claims at common law, which is the standard that courts apply when determining whether or not the Seventh Amendment attaches to civil cases. And so, the argument that we’re making in light of the recent Supreme Court decision in Jarkesy is distinguishing from Atlas Roofing. So, Atlas Roofing was a pure citation under a promulgated regulation, and they said that regulation was promulgated and it is a public right. Jarkesy had to do with SEC and fraud.
And so while it was a regulatorially created cause of action securities fraud, Jarkesy said, “Well, securities fraud has almost all of the same elements as common law fraud. So, while it may be a prosecution of a violation of a regulation, it is close enough to a common law cause of action that the Seventh Amendment does attach.” And so, the case that you and I are prosecuting has to do with general duty clause violations. And so, the argument that we’re making is even if Jarkesy didn’t overrule Atlas Roofing, which I think there’s a very persuasive argument that Jarkesy did. That doesn’t matter because the specific elements of a general duty clause violation is essentially an allegation of common law negligence and common law negligence entitles a person to a jury trial under the seventh amendment.
And then the final argument that we’re making is OSHRC quorum. And so, the argument with that one is when Congress set up this administrative review procedure, which ultimately the Supreme Court said was sufficient due process protection, one of the important steps of that is the review by three OSHRC commissioners. So, in theory, OSHRC commissioners are supposed to be extremely knowledgeable of this area of the law, the experts. And so, an argument could be made that, okay, that’s sufficient due process because you have both your ALJ and then you have this intermediate appellate review by experts, and then you go on to the court ultimately, which has a narrower scope of review. And so, the question is, does that offend due process if you can’t follow this procedure that Congress set out for analyzing citations? And I think there is a strong argument to be made that it did. And in the context of immigration removal procedures or review of that, the Supreme Court has suggested that if Congress puts this step in place, you can’t just skip it even if the result would be the same. And so that is the argument that we’re making in that context.

John Surma: Well, thank you very much, Ryan. And as we’re bringing this episode to a close, are there any other ways that you can end up in court? Obviously, the big way is you receive a citation, you contest it, you’re duking it out with OSHA in terms of whether or not that citation is going to actually be upheld or not. But outside of that context, are there other ways that an employer can end up in court with OSHA?

Ryan Swink: Yeah. So, you can end up in court if you are fighting a subpoena or fighting a warrant. So, when you’re at that inspection phase. A lot of times our advice to clients is cooperate to the extent that OSHA is being reasonable in what they’re asking for. Sometimes that reaches just a head. We think that OSHA’s request is unreasonable, they think they’re entitled to it. So ultimately, they’ll end up in court either issuing an administrative search warrant or they send you a subpoena, you object to it, and then they go to court to enforce it so that’s one way. You could end up in court in the context of the anti-retaliation provision, 11C of the act. So, an employee is fired, they claim that the reason they were fired is because they engaged in a protected activity either complaining about an unsafe work practice or cooperating with OSHA in an inspection. And you can end up in court that way if the Department of Labor determines that there’s reasonable cause to believe that you did retaliate. And then there is also OSHA does have the ability to actually go into court and seek an injunction to shut you down because they believe that you’re creating an imminent danger. So those are some of the other ways that you can end up in court with OSHA.

John Surma: Well, Ryan, once again, thank you very much for joining me and presenting to our audience this the 14th in our Safety Basics series. To our audience, thank you for joining us and join us the next time. We appreciate you being here. Have a good day.

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