Employers challenge constitutionality of DOL ALJs

When the Supreme Court decided SEC v. Jarkesy, it only decided one of the issues in the U.S. 5th Circuit Court of Appeals decision. As we noted in “NLRB, ALJs facing existential challenges,” the 5th Circuit in Jarkesy also ruled that the Securities and Exchanges Commission’s (SEC) administrative law judges (ALJs) were unconstitutionally appointed because their removal protections violated “the appointments clause” of Article II of the Constitution. As a result of that 5th Circuit precedent, a district court in Texas held the National Labor Relations Board’s (NLRB) ALJs are likewise unconstitutionally appointed and therefore granted the employer an injunction blocking administrative proceedings at Board.

With these cases as a background, janitorial services company and federal contractor ABM has now filed suit to challenge the DOL’s ALJ proceedings in the Southern District of Texas.

Contractor complaint