A decision by the U.S. Supreme Court regarding the legality of administrative law judge (ALJ) appointments may result in overturning many rulings handed down by ALJs in the Occupational Safety and Health Administration (OSHA) and Mine Safety and Health Administration (MSHA).
An ALJ is an agency or department judge who presides over trials and adjudicates the claims or disputes involving issues of administrative law, many of which deal with fines, penalties and citations imposed by an agency. Unlike regular court judges, ALJs specifically train for and must pass examinations to be eligible to serve in these bureaucratic positions. However, they conduct trial proceedings and hand down decisions that have the full force of law when it comes to enforcing federal rules and regulations.
In June, the Supreme Court held that ALJs who had been appointed by the Securities and Exchange Commission (SEC) violated the Appointments Clause of the U.S. Constitution by allowing its staff employees to appoint ALJs. The Appointments Clause requires that an “inferior Officer” be appointed by the President or, if permitted by statute, by the “Head” of a department. The SEC ALJs had been appointed by commission staff members, not a “Head” of the SEC.
The High Court remanded the case that it ruled back to the commission for a new hearing before a properly appointed ALJ. It also held that the ALJ who had previously presided could not be assigned to preside over the case again, even though the SEC heads had, in the interim, apparently ratified his appointment.
On July 31 the Sixth Circuit U.S. Court of Appeals also held that ALJs within MSHA are “inferior officers” and therefore subject to the Constitution’s appointments clause as well, overturning a decision because the ALJ involved had been appointed improperly.
That case involved a total of $2,940 in civil penalties assessed by MSHA against Jones Brothers stemming from its extraction of solid rock for use in a highway repair project. Jones Brothers challenged the penalties before the Federal Mine Safety and Health Review Commission (FMSHRC), and the assigned ALJ found that the company’s extraction site was a “coal or other mine.” Therefore, it was under the jurisdiction of MSHA and the commission had the power to issue the citations.
New Precedent’s Impact
On appeal, Jones Brothers argued that the ALJ assigned to its case should have been appointed to her position pursuant to the appointments clause and, because she had not been, she did not have the authority to hear and rule on the case. The Sixth Circuit agreed, vacated the ALJ’s decision and remanded the case for a new hearing before a “constitutionally appointed” ALJ.
“Although the MSHA judge appointments have now been ratified, previous decisions issued before ratification are susceptible to the same type of constitutional challenge as in Jones Brothers,” notes Greta Bauer Reyes, an attorney with the law firm of Stinson Leonard Street LLP.
“Parties aggrieved by such decisions now have additional grounds to challenge such a decision and could get a do-over at trial. In addition, and as made clear by the Jones Brothers decision, respondent companies could risk waiving this constitutionality challenge if it is not raised early in the administrative process.”
Attorneys David Klass and Travis Vance of the Fisher Phillips law firm say OSHA citations also could be invalidated in the wake of the Jones Brothers case. They point out that the Sixth Circuit found that only the FMSHRC commissioners, acting as a whole, could serve as a department head as defined by the Appointments Clause and thereby legally appoint ALJs.
For OSHRC appointments, however, the governing statute provides that the “Chairman” of the commission “shall appoint” ALJs. “Can Congress delegate the power to appoint ALJs to those other than the President, a court of law or a department head?” Klass and Vance ask. “Because of the potential to upend ALJ decisions regarding OSHA citations, we may soon find out. If your company has been impacted by an OSHRC ALJ decision or is currently contesting an OSHA citation, you may want to seek the advice of counsel to discuss your options.”
