OSHA Act Issue-Preservation Rule: No Appellate Review of Unurged Objections Before the Commission (and Incorporation by Reference Is Insufficient)

I. Introduction

Case: FAMA Construction, LLC v. U.S. Occupational Safety and Health Review Commission
Court: U.S. Court of Appeals for the Eleventh Circuit (Not for Publication)
Date: February 12, 2026

FAMA Construction, LLC (“Fama”) is a roofing contractor that frequently used the same subcontractor roofers. After repeated OSHA inspections over years, OSHA again cited Fama in 2019 after an инспектор observed two subcontractor workers lacking required fall protection and a hardhat. OSHA issued citations to Fama under the agency’s multi-employer worksite policy, treating Fama as a “controlling employer.”

The petition presented two core disputes: (1) whether the court could review Fama’s broad legal challenges to OSHA’s multi-employer citation policy when those objections were not properly presented to the Occupational Safety and Health Review Commission (the “Commission”); and (2) whether Fama established an affirmative defense of “economic infeasibility” (i.e., that compliance would be so costly as to be infeasible, and that no feasible alternatives existed).

II. Summary of the Opinion

The Eleventh Circuit denied the petition for review and affirmed the Commission’s final decision.

  • Issue preservation/exhaustion: Under 29 U.S.C. § 660(a), the court could not consider objections that were not “urged before the Commission,” absent “extraordinary circumstances.” Fama’s multi-employer-policy objections were largely forfeited because it failed to present them properly to the Commission in its petition(s) for discretionary review, and its later attempt to “incorporate by reference” earlier arguments did not comply with Commission rules.
  • Economic infeasibility defense: Fama failed to carry its burden to show (i) compliance was infeasible and (ii) it undertook alternative protective measures or that no alternatives were feasible. In particular, Fama offered no evidence that hiring a supervisor was the only feasible compliance option, and it was undisputed that Fama took no alternative steps.

III. Analysis

A. Precedents Cited

1. Jurisdiction, standard of review, and deference

  • Quinlan v. Sec'y, U.S. Dep't of Lab., 812 F.3d 832 (11th Cir. 2016): Cited for the proposition that Commission decisions are entitled to “considerable deference.” The court used this to frame its appellate posture: it is not a do-over of the agency proceeding.
  • Fluor Daniel v. Occupational Safety & Health Rev. Comm'n, 295 F.3d 1232 (11th Cir. 2002): Provided the Eleventh Circuit’s articulation of “substantial evidence.” This contextualizes how facts are reviewed (though the core holdings here turned on issue preservation and failure of proof).
  • Stone & Webster Constr., Inc. v. U.S. Dep't of Lab., 684 F.3d 1127 (11th Cir. 2012): Reinforced that substantial-evidence review prevents the court from reweighing evidence or making credibility determinations.
  • Loper Bright Enters. v. Raimondo, 603 U.S. 369 (2024): Cited for the point that 5 U.S.C. § 706 requires deferential review of agency factfinding/policymaking, but “prescribes no deferential standard” for pure questions of law. This is notable because Fama attempted to raise broad legal attacks on the multi-employer policy; however, the court never reached those legal merits because they were not preserved before the Commission.

2. The decisive preservation rule: objections must be urged “before the Commission”

  • McGowan v. Marshall, 604 F.2d 885 (5th Cir. 1979): The opinion’s central precedent. McGowan interpreted 29 U.S.C. § 660(a) to bar judicial review of issues not urged before the Commission (as opposed to an ALJ), absent extraordinary circumstances. The Eleventh Circuit applied McGowan directly: arguments made to the ALJ but not properly to the Commission are not reviewable on appeal.
  • Bonner v. City of Prichard, 661 F.2d 1206 (11th Cir. 1981) (en banc): Cited to explain why Fifth Circuit decisions prior to October 1, 1981—including McGowan—bind the Eleventh Circuit.
  • Fama Constr., LLC v. U.S. Dep't of Lab., No. 19-13277, 2022 WL 2375708 (11th Cir. June 30, 2022) (unpublished): The court used Fama’s own prior appeal to underscore the absence of “extraordinary circumstances” and to show Fama had notice: it previously tried to raise unpreserved multi-employer-policy challenges and lost on preservation grounds. That prior loss made the repeat failure to preserve here harder to excuse.

3. Infeasibility as an affirmative defense and summary judgment burdens

  • Harry C. Crooker & Sons, Inc. v. Occupational Safety & Health Rev. Comm'n, 537 F.3d 79 (1st Cir. 2008): Quoted for the two-part test for economic infeasibility: (i) compliance is impossible or would make performance impossible, and (ii) alternative steps were undertaken or none were available. The Eleventh Circuit adopted and applied this framework.
  • A.J. McNulty & Co., Inc. v. Sec'y of Lab., 283 F.3d 328 (D.C. Cir. 2002): Reinforced that an infeasibility defense requires not only showing infeasibility of compliance but also alternative protection or infeasibility of alternatives; also used for the principle that failing to address feasible alternatives defeats the defense.
  • Celotex Corp. v. Catrett, 477 U.S. 317 (1986): Used to explain summary judgment mechanics—specifically that a moving party may point to an absence of evidence supporting the nonmovant’s case. Here, it supported the conclusion that the Secretary could prevail at summary judgment because Fama lacked evidence on key defense elements.
  • McElroy by McElroy v. Firestone Tire & Rubber Co., 894 F.2d 1504 (11th Cir. 1990): Cited for the proposition that a party bearing the burden on an affirmative defense cannot prevail (or resist summary judgment) without evidence on each element.
  • Gregory & Cook, Inc., 17 BNA OSHC 1189, 1995 WL 242603 (No. 92-1891, 1995): Cited for a Commission formulation of infeasibility: infeasibility can be shown by demonstrating that the prescribed compliance method is economically/technologically infeasible, or that the work would become infeasible after implementation.

4. Non-judicial authority shaping the dispute

  • OSHA Instruction CPL 02-00-124, Multi-Employer Citation Policy (Dec. 10, 1999): The policy source defining “controlling employer” and its duty to exercise “reasonable care” to prevent/detect violations. While Fama attacked the policy’s validity, those attacks were not reviewable due to preservation failures; nonetheless, the policy’s definitions drove the “controlling employer” analysis at the agency level.
  • 29 C.F.R. § 2200.91(d): Critical procedural rule—“[a] petition shall not incorporate by reference a brief or legal memorandum.” This regulation was the linchpin for rejecting Fama’s attempt to “restate” objections by incorporation rather than presenting them directly to the Commission.

B. Legal Reasoning

1. The court treated § 660(a) as a strict issue-preservation jurisdictional gate

The opinion’s most consequential move is procedural: it enforced the statutory exhaustion/preservation command in 29 U.S.C. § 660(a): “No objection that has not been urged before the Commission shall be considered by the court,” absent extraordinary circumstances. Following McGowan v. Marshall, the court emphasized that preserving an issue before the ALJ is not enough; it must be properly presented to the Commission.

Fama raised numerous legal attacks on the multi-employer policy before the ALJ. But in its Commission petitions, it either narrowed the issues dramatically or, later, attempted to incorporate past arguments by reference. The Eleventh Circuit held that incorporation-by-reference did not “urge” the objections before the Commission because 29 C.F.R. § 2200.91(d) expressly forbids it. As a result, the objections were not properly presented and were unreviewable.

The court also rejected any suggestion that “extraordinary circumstances” excused the defect, stressing that Fama had previously been told (in its 2022 Eleventh Circuit appeal) that preservation before the Commission is required. The repeat failure, with the same counsel, cut strongly against equitable leniency.

2. Economic infeasibility failed for lack of proof—especially on alternatives

With the multi-employer-policy challenges procedurally barred, the court addressed only economic infeasibility. It treated infeasibility as an affirmative defense on which the employer bears the burden of proof. Applying Harry C. Crooker & Sons, Inc. v. Occupational Safety & Health Rev. Comm'n and A.J. McNulty & Co., Inc. v. Sec'y of Lab., the court required two showings:

  1. Infeasibility of compliance: Fama asserted it would have to hire a $50,000/year supervisor, exceeding profits. The court found the argument conclusory because Fama offered no evidence that hiring a supervisor was the only feasible method of compliance.
  2. Alternative protections: Even if the preferred method were expensive, the defense also requires that the employer used alternative means of protection or that no alternatives were feasible. It was undisputed Fama took no alternative steps—despite knowledge of repeated prior subcontractor violations. And Fama did not prove alternatives were infeasible because it did not establish that supervision was the sole option.

The court’s summary judgment analysis hewed to Celotex Corp. v. Catrett: the Secretary could prevail by pointing to an absence of evidence supporting essential elements of Fama’s affirmative defense.

C. Impact

1. Procedural impact: Commission petitions must be self-contained and explicit

The decision reinforces a strict and practical rule for OSHA litigation in the Eleventh Circuit: to preserve issues for judicial review, parties must “urge” each objection before the Commission in compliance with Commission rules. A litigant cannot rely on arguments made only to the ALJ, and cannot “incorporate by reference” earlier briefs in a Commission petition where 29 C.F.R. § 2200.91(d) prohibits that practice.

In effect, the opinion elevates Commission petition drafting into a dispositive appellate gatekeeping step. Even potentially significant legal challenges—e.g., Administrative Procedure Act notice-and-comment claims, statutory interpretation challenges, or vagueness challenges—can be lost if not properly framed in the Commission petition.

2. Substantive impact: infeasibility defenses require concrete evidence and engagement with alternatives

The decision illustrates that “economic infeasibility” is not proven by showing compliance costs are high relative to profit. The employer must present evidence that the standard’s compliance method is infeasible (not merely inconvenient) and must either implement alternative protective measures or prove that alternatives are infeasible. The absence of evidence that supervision was the only feasible path, combined with no alternative protective action, was fatal.

3. Multi-employer policy challenges remain unresolved on the merits (but harder to reach)

Because the court did not reach the merits of Fama’s legal attacks on OSHA’s multi-employer policy, the opinion does not validate or reject those theories substantively. Its practical effect, however, is to make merits review less likely unless parties precisely preserve those legal challenges before the Commission. The procedural holding thus may shape how and when appellate courts can address the policy’s validity.

IV. Complex Concepts Simplified

  • Multi-employer worksite policy: OSHA’s approach for worksites with multiple employers (e.g., owners, general contractors, subcontractors). It specifies when an employer can be cited for hazards affecting workers who are not its own employees.
  • Controlling employer: Under OSHA’s policy, an entity with general supervisory authority and the power to correct hazards or require others to correct them. The duty is to use “reasonable care” to prevent and detect violations.
  • Commission vs. ALJ: An ALJ conducts the initial adjudication. The Commission is the body whose final orders are reviewed by the courts of appeals. Under 29 U.S.C. § 660(a), objections must be urged before the Commission—not merely before the ALJ—to be reviewed by a federal appellate court.
  • Issue preservation/exhaustion: A rule requiring parties to raise arguments at the proper time and forum during agency proceedings. If not, a court generally will not consider them later.
  • Incorporation by reference: Attempting to preserve arguments by pointing to earlier briefs instead of restating them. Here, it failed because Commission rules prohibit incorporation by reference in petitions for review.
  • Affirmative defense (economic infeasibility): A defense the employer must prove with evidence. It is not enough to criticize OSHA’s case; the employer must establish each required element.
  • Summary judgment: A procedure to resolve a case without trial when there are no genuine disputes of material fact and the moving party is entitled to judgment as a matter of law. When the nonmovant bears the burden on a defense, it must come forward with evidence for each element or risk losing at summary judgment.

V. Conclusion

FAMA Construction is a procedural-and-proof decision with substantial practical bite. Procedurally, it underscores that 29 U.S.C. § 660(a) bars appellate review of objections not properly urged before the Commission, and that Commission petitions cannot preserve arguments through incorporation by reference under 29 C.F.R. § 2200.91(d). Substantively, it reiterates that economic infeasibility is a demanding affirmative defense requiring concrete evidence of infeasibility and evidence of alternative protective steps (or proof that alternatives were infeasible). Together, these holdings push OSHA litigants to (1) meticulously preserve every intended appellate issue in a compliant Commission petition and (2) support infeasibility defenses with more than profit figures and assertions about the “only” way to comply.