OFCCP Suit Enjoined; Constitution’s “Take Care” clause Ignored When Too Many Processes

The federal Office of Federal Contract Compliance Programs back in 2021 found that a business performing federal contracts preferred Hispanic applicants over Black and White applicants, and the contractor resisted requests that it change its practices, including sloppy recordkeeping and data reporting violations. The dispute ran for over three years, culminating in the scheduling of an enforcement proceeding before an Administrative Law Judge for back pay and other relief. The contractor, a janitorial company named ABM Industry Groups, sued in court to enjoin the hearing, claiming it was unconstitutional.? Two weeks ago the court agreed, finding that ABM was likely to succeed on the argument that the ALJ was excessively insulated from "for-cause removal." ?

The contractor’s first theory in court, that the imposition of a proceeding before the ALJ violated the Seventh Amendment right to a jury trial, was rejected.

But the second theory, that shifted the focus to the ALJ’s status under the US Constitution, was successful.

According to the contractor the root of the problem was the process by which the ALJ was protected against for-cause removal by two layers of process: 1) before the federal Office of Personnel Management and 2) a “good cause” hearing and determination by the Merit Systems Protection Board.? These represented unconstitutional restrictions on the President’s constitutional powers, ABM contended, and asked the court to enjoin the hearing.

As a basis for entering an injunction (but not passing on the merits of the claimed violations by the contractor) the Texas federal district Judge Sim Lake agreed with ABM that this insulation of the two proceedings violated the Article II provision of the Constitution that the President have the ability to “take care” that the laws be faithfully executed. ?Being subject to a proceeding before an improperly insulated ALJ, the court found, is a “cognizable legal injury” that qualifies as irreparable harm.

Although not a final determination by the court, this case is further evidence of litigation brought to upend administrative agency overreaching. ?It would be no surprise if employers elsewhere will dig into administrative processes and try to assert injury from (allegedly) excessive protections of administrative law judges and hearing officers at the NLRB or OSHA (or at the state level, e.g., the Illinois Human Rights Commission). ??