Allstates Refractory Contractors, LLC v. Su

Docket Number22-3772
Decision Date23 August 2023
PartiesAllstates Refractory Contractors, LLC, Plaintiff-Appellant, v. Julie A. Su, in her official capacity as Acting Secretary of Labor, U.S. Department of Labor; Douglas L. Parker, in his official capacity as Assistant Secretary of Labor for Occupational Safety and Health; Occupational Safety & Health Administration, U.S. Department of Labor; United States Attorney for the Northern District of Ohio, Defendants-Appellees.
CourtU.S. Court of Appeals — Sixth Circuit


Allstates Refractory Contractors, LLC, Plaintiff-Appellant,
Julie A. Su, in her official capacity as Acting Secretary of Labor, U.S. Department of Labor; Douglas L. Parker, in his official capacity as Assistant Secretary of Labor for Occupational Safety and Health; Occupational Safety & Health Administration, U.S. Department of Labor; United States Attorney for the Northern District of Ohio, Defendants-Appellees.

No. 22-3772

United States Court of Appeals, Sixth Circuit

August 23, 2023

Argued: April 27, 2023

Appeal from the United States District Court for the Northern District of Ohio at Toledo. No. 3:21-cv-01864-Jack Zouhary, District Judge.


Brett A. Shumate, JONES DAY, Washington, D.C., for Appellant.

Courtney L. Dixon, UNITED STATES DEPARTMENT OF JUSTICE, Washington, D.C., for Appellees.


Brett A. Shumate, John M. Gore, Anthony J. Dick, Brinton Lucas, JONES DAY, Washington, D.C., Christopher M. McLaughlin, JONES DAY, Cleveland, Ohio, J. Benjamin Aguinaga, JONES DAY, Dallas, Texas, for Appellant.

Courtney L. Dixon, Alisa B. Klein, UNITED STATES DEPARTMENT OF JUSTICE, Washington, D.C., for Appellees. Michael Pepson, AMERICANS FOR PROSPERITY FOUNDATION, Arlington, Virginia, Timothy S. Bishop, Brett E. Legner, MAYER BROWN LLP, Chicago, Illinois, Jeffrey D. Jennings, LIBERTY JUSTICE CENTER, Chicago, Illinois, Sheng Li, NEW CIVIL LIBERTIES ALLIANCE, Washington, D.C., David C. Tryon, THE BUCKEYE INSTITUTE, Columbus,


Ohio, Oliver J. Dunford, PACIFIC LEGAL FOUNDATION, Palm Beach Gardens, Florida, Luke A. Wake, PACIFIC LEGAL FOUNDATION, Sacramento, California, Nicolas A. Sansone, Allison M. Zieve, PUBLIC CITIZEN LITIGATION GROUP, Washington, D.C., Pamela M. Newport, BRANSTETTER, STRANCH & JENNINGS, PLLC, Cincinnati, Ohio, Brianne J. Gorod, CONSTITUTIONAL ACCONTABILITY CENTER, Washington, D.C., Ben Seel, DEMOCRACY FORWARD FOUNDATION, Washington, D.C., Alex Hemmer, OFFICE OF THE ILLINOIS ATTORNEY GENERAL, Chicago, Illinois, Sean H. Donahue, DONAHUE & GOLDBERG, LLP, Washington, D.C., Ian Fein, NATURAL RESOURCES DEFENSE COUNCIL, San Francisco, California, Sanjay Narayan, SIERRA CLUB ENVIRONMENTAL LAW PROGRAM, Oakland, California, Craig Becker, AFL-CIO, Washington, D.C., Randy Rabinowitz, OSH LAW PROJECT, LLC, Washington, D.C., for Amici Curiae.

Before: COOK, GRIFFIN, and NALBANDIAN, Circuit Judges.

GRIFFIN, J., delivered the opinion of the court in which COOK, J., joined. NALBANDIAN, J. (pp. 16-44), delivered a separate dissenting opinion.



More than fifty years ago, Congress passed, and President Nixon signed into law, the Occupational Safety and Health (OSH) Act, 29 U.S.C. § 651 et seq. Throughout the next half century, challenges to the constitutionality of the Act have been uniformly rejected. See Nat'l Mar. Safety Ass'n v. Occupational Safety &Health Admin., 649 F.3d 743 (D.C. Cir. 2011), cert. denied, 566 U.S. 936 (2012); Blocksom & Co. v. Marshall, 582 F.2d 1122 (7th Cir. 1978).

This case presents the same simple but poignant challenge: whether Congress's delegation to the Occupational Safety and Health Administration (OSHA) to set workplacesafety standards is constitutional. Plaintiff Allstates Refractory Contractors, a general contractor subject to OSHA's oversight, challenges OSHA's authority to set "reasonably necessary or appropriate" workplace-safety standards, 29 U.S.C. §§ 652(8), 655(b), as a violation of the nondelegation doctrine. The district court concluded that the delegation provided an "intelligible principle" and thus rejected Allstates's challenge. We agree and now join our sister circuits in holding OSHA's delegation to be constitutional.


Allstates is a full-service industrial general contractor that employs people throughout the country. As an employer subject to the OSH Act, it must comply with OSHA's workplacesafety standards and expend resources to ensure that it does so. It has also been the subject of enforcement actions in the past, including a $10,000 fine for a catwalk injury that occurred in 2019.

In this facial challenge to the OSH Act against the relevant governmental defendants, Allstates contends that, because the only textual constraint on setting workplace-safety standards is that they be "reasonably necessary or appropriate," 29 U.S.C. § 652(8), OSHA does not have the constitutional authority to set those standards under § 655(b) and employers do not have a duty to comply with OSHA's standards under § 654(a). In the district court, it moved for summary judgment, requesting a permanent nationwide injunction. But, instead, the district court granted the government's cross motion for summary judgment. The court concluded that the "reasonably necessary or appropriate" standard provided an "intelligible principle" to satisfy the nondelegation doctrine because the Supreme Court has repeatedly upheld similar delegations; so the court "decline[d]" Allstates's "invitation" to "disregard these precedents." Allstates Refractory Contractors, LLC v. Walsh, 625 F.Supp.3d 676, 681-84 (N.D. Ohio 2022). Allstates timely appealed here.


Allstates raises the same argument on appeal that it presented to the district court-that the OSH Act violates the nondelegation doctrine. Eventually conceding that we are bound by the "intelligible principle" test,[1] Allstates argues that the OSH Act provides no such principle. On de novo review, see United States v. Green, 654 F.3d 637, 649 (6th Cir. 2011), we agree with the district court that the Act comfortably falls within the ambit of delegations previously upheld by the Supreme Court.


Our Constitution vests "[a]ll legislative Powers . . . in a Congress of the United States." U.S. Const. art. I, § 1. The nondelegation doctrine, therefore, is "rooted in the principle of separation of powers that underlies our tripartite system of Government," the maintenance of which "mandate[s] that Congress generally cannot delegate its legislative power to another Branch." Mistretta v. United States, 488 U.S. 361, 371-72 (1989). But while the Constitution permits no delegation of legislative powers, it does "not prevent Congress from obtaining the assistance of its coordinate Branches." Id. at 372. For nearly a century, this inquiry has been determined according to the "intelligible principle" test: "If Congress shall lay down by legislative act an intelligible principle to which the person or body authorized to [act] is directed to conform, such legislative action is not a forbidden delegation of legislative power." J.W. Hampton, Jr., & Co. v. United States, 276 U.S. 394, 409 (1928).

This test balances Congress's need for flexibility with the Constitution's prohibition on legislative delegation. On one hand, it enforces the underlying principle of the nondelegation doctrine "that Congress may not delegate the power to make laws and so may delegate no more than the authority to make policies and rules that implement its statutes." Loving v. United States, 517 U.S. 748, 771 (1996); see also Marshall Field & Co. v. Clark, 143 U.S. 649, 693-94 (1892). But it has also long been grounded in the practical notion that, "in our increasingly complex society, replete with ever changing and more technical problems, Congress simply cannot do its job absent an ability to delegate power under broad general directives." Mistretta, 488 U.S. at 372. "The Constitution has never been regarded as denying to the Congress the necessary resources of flexibility and practicality, which will enable it to perform its function." Id. (citation omitted). For this reason, in determining what Congress must do to constitutionally obtain help from another branch, "the extent and character of that assistance must be fixed according to common sense and the inherent necessities of the governmental co-ordination." J.W. Hampton, Jr., 276 U.S. at 406.

Accordingly, the intelligible-principle test is satisfied and the statute is constitutional "if Congress clearly delineates the general policy, the public agency which is to apply it, and the boundaries of this delegated authority." Mistretta, 488 U.S. at 372-73 (quoting Am. Power &


Light Co. v. S.E.C., 329 U.S. 90, 105 (1946)). This inquiry is one of statutory interpretation in which we consider the act's delegated "task," the "instructions it provides," and whether it "sufficiently guides" the agency's discretion. Consumers' Rsch. v. F.C.C., 67 F.4th 773, 788 (6th Cir. 2023) (quoting Gundy v. United States, 139 S.Ct. 2116, 2123 (2019) (plurality opinion)). In these inquiries, we must interpret the standard, not in "isolation," but with regards to "the purpose of the Act, its factual background and the statutory context in which [it] appear[s]." Am. Power &Light, 329 U.S. at 104. Further, while the "'degree of agency discretion that is acceptable varies according to the scope of the power congressionally conferred,'" we nonetheless "apply one universal intelligible-principle test regardless of the type of statute at issue." Consumers' Rsch., 67 F.4th at 788 (quoting Whitman v. Am. Trucking Ass'ns, 531 U.S. 457, 475 (2001)). However, this inquiry does not consider any limiting construction the agency has adopted-"[w]hether the statute delegates legislative power is a question for the courts, and an agency's voluntary self-denial has no bearing upon the answer." Whitman, 531 U.S. at 473.

The Supreme Court, in examining non-delegation challenges, has almost uniformly upheld "delegations under standards phrased in sweeping terms." See Loving, 517 U.S. at 771; see also 32 Charles A. Wright &Arthur R. Miller, Federal Practice and Procedure § 8122 (2d ed. 1995). Historically, the Court upheld broad delegations. See, e.g., Marshall Field &Co., 143 U.S. at 692-93 (finding proper a delegation to the President to impose retaliatory tariffs if he "deemed" that American business was being treated unequally); United States v. Grimaud...

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