Litigation

Administrative law experts say they expect the Supreme Court will issue a narrow ruling in litigation seeking to limit agency adjudications via administrative law judges (ALJs), tamping down expectations that the case, focused on the Securities & Exchange Commission (SEC), could have sweeping implications for OSHA and other agencies.

Conservative justices on the Supreme Court appear sympathetic to claims that the Securities and Exchange Commission’s (SEC) use of administrative law judges (ALJs) violates the 7th Amendment right to a jury trial, but during Nov. 28 oral argument they wrestled with how to craft a new test for the practice amid fears that a broad ruling could upend review of OSHA and other agencies’ enforcement actions.

OSHA is urging a federal district court to reject any link between South Carolina’s latest suit over the federal mandate for states to match their annual penalty increases to federal OSH Act penalties and a pending Supreme Court case that could greatly extend the Administrative Procedure Act’s (APA) statute of limitations for rule challenges.

The Supreme Court will hear oral argument on Jan. 17 in a pair of linked suits that could overturn or sharply limit the long-standing Chevron doctrine that gives deference to OSHA and other agencies on their “reasonable” interpretations of ambiguous statutory text.

South Carolina is seeking to stay its latest challenge to OSHA’s mandate for states to match annual increases to federal minimum and maximum OSH Act penalties, citing a pending Supreme Court case that it says could loosen the six-year statute of limitations for suing over federal agency action that OSHA has argued is fatal to the current suit.

In a case that threatens long-time practices at OSHA and other agencies, Republican state attorneys general (AG) and industry groups are urging the Supreme Court to uphold the appellate ruling that found that Congress’ creation of administrative law judges (ALJs) for the Securities and Exchange Commission (SEC) violates key constitutional provisions.

The American Chemistry Council (ACC) is asking a federal court to formally bar EPA from using the National Academy of Sciences, Engineering and Medicine’s (NASEM) contested peer review of the agency’s draft formaldehyde risk assessment in any of a litany of applications, including as support for strict workplace exposure limits under TSCA.

The Supreme Court has accepted a second case challenging the longstanding Chevron doctrine requiring deference to OSHA and other agencies’ readings of ambiguous laws, and will hear it “in tandem” with an already-pending suit from which Justice Ketanji Brown has recused herself, allowing the full court to weigh in and avoiding the possibility of a 4-4 tie.

The contracting company challenging OSHA’s standard-setting power as unconstitutional is seeking en banc review of the case, both renewing its arguments that the OSH Act violates the Supreme Court’s non-delegation doctrine and saying a panel decision upholding the law created a new and possibly “ruinous” mandate that the agency “must” regulate workplace dangers.

The Justice Department is urging the Supreme Court to preserve the Chevron doctrine, which grants OSHA and other agencies discretion to reasonably interpret ambiguous statutory language, warning that such a rollback would send a “convulsive shock” to the legal system and create “cascading uncertainty” for agency decisions.