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Circuit court split could prompt high court review


If the 5th U.S. Circuit Court of Appeals in New Orleans upholds a decision restraining the U.S. Occupational Safety and Health Administration’s policy of citing multiple employers for hazards on the same worksite within its jurisdiction, that would constitute a circuit court split that could make the issue ripe for U.S. Supreme Court review.

In Secretary of Labor v. Hensel Phelps Construction Co., the U.S. Department of Labor is asking the 5th Circuit to take into account the 1984 U.S. Supreme Court case Chevron U.S.A. Inc. v. Natural Resources Defense Council Inc., which calls for courts to defer to an agency’s reasonable interpretation of an ambiguous statutory provision it implements or enforces.

“If they lost, the Secretary of Labor would certainly appeal it to the Supreme Court,” said Raymond Perez, of counsel in the Atlanta office of Jackson Lewis P.C.

Situations where courts previously have not abided by the so-called Chevron deference typically relate to position shifts emanating from a change in administration, said Mark Kittaka, a Columbus, Ohio-based partner with Barnes & Thornburg L.L.P. For example, wage and hour law interpretations and opinions often undergo “a 180-degree change” every four or eight years, leading courts to reject deference because there is no explanation for the shift. “Here, this has been pretty much the same since 1999,” when OSHA first issued its multiemployer citation policy, he said. “It’s going to be harder to say it’s not entitled to deference because it has been pretty consistent.”

But the Chevron deference could be vulnerable to being overturned by the high court, with Associate Justice Neil Gorsuch on the court since April 2017 and U.S. Circuit Judge Brett Kavanaugh recently nominated. “The history of Gorsuch and Kavanaugh has been to question the government’s reach and the government’s interpretations of their standards,” Mr. Perez said.


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