Date: Feb 15, 2026

Ultra Vires Is Waivable: Exhaustion and OSHA General Duty Enforcement of Psychiatric Workplace Violence

Introduction

In Cedar Springs Hospital, Inc. v. Occupational Health and Safety Review Commission; United States Department of Labor (10th Cir. Feb. 13, 2026), a psychiatric hospital sought judicial review of an OSHA general-duty citation arising from repeated, intermittent incidents of patient-on-staff violence. OSHA alleged the hospital failed to implement feasible and effective measures to materially reduce a “recognized hazard” under the general duty clause, 29 U.S.C. § 654(a)(1).

The petition raised two overarching controversies: (1) whether OSHA was displaced because the Centers for Medicare and Medicaid Services purportedly exercised overlapping authority, and (2) whether OSHA permissibly imposed liability—via adjudication and by reference to guidance—without violating due process notice requirements and without sufficient proof of effectiveness and feasibility. A further dispute concerned sanctions for overwritten surveillance video.

The court denied the petition for review, affirming the Review Commission’s final order (via the ALJ decision after the Commission declined review).

Summary of the Opinion

Authority / displacement: The hospital’s argument that CMS displaced OSHA was unexhausted and, in any event, meritless because CMS’s patient-focused regulations and memoranda did not constitute an exercise of statutory authority over employee workplace safety sufficient to preempt OSHA under 29 U.S.C. § 653(b)(1).
“Jurisdiction” framing rejected: The court treated the challenge to OSHA’s authority as waivable and subject to exhaustion, relying on the modern understanding of “jurisdiction” and City of Arlington v. FCC.
Adjudication, not rulemaking: OSHA could proceed by enforcement adjudication under the general duty clause; the choice between rulemaking and adjudication was within agency discretion.
Guidance documents: The Commission’s use of guidance as supporting material—alongside expert testimony and record evidence—was permissible.
Due process notice: The citation, read with its explanatory detail and communications from OSHA and the hospital’s own policy usage, provided fair notice.
Effectiveness and feasibility: Substantial evidence supported findings that proposed measures would materially reduce risk and were technologically and economically feasible; exact costing was not required.
Spoliation sanctions: The adverse-inference sanctions for overwritten video were upheld under an abuse-of-discretion standard.

Analysis

Precedents Cited

1) Displacement / preemption of OSHA by another federal agency

The court anchored its displacement analysis in Chao v. Mallard Bay Drilling, Inc., which holds that OSHA’s authority is displaced under 29 U.S.C. § 653(b)(1) only when another federal agency not only possesses authority but actually exercises statutory authority over the relevant “working conditions.” Applying Chao, the Tenth Circuit concluded that CMS’s hospital participation conditions and related materials were primarily patient-protective and did not amount to an exercised regime regulating employee workplace violence as a working condition.

The court reinforced this functional, “working conditions” focus by analogizing to Austin Indus. Specialty Servs., L.P. v. Occupational Safety & Health Rev. Comm'n, where another agency’s regulation addressing a different target (environmental discharge) did not bar OSHA enforcement aimed at employee safety. It also cited Usery v. Lacy to underscore Congress’s broad intent for OSHA to reach employee safety hazards.

2) Exhaustion and the modern meaning of “jurisdiction” for agencies

On exhaustion, the court relied on its own precedent, Robert K. Bell Enters., Inc. v. Donovan, requiring exhaustion of OSHA administrative remedies before judicial review. Cedar Springs’ stipulation to jurisdiction and failure to present the CMS displacement theory to the ALJ was decisive under that framework.

The opinion’s most consequential doctrinal move is its rejection of older cases treating agency “authority” objections as non-waivable “jurisdiction.” It acknowledged earlier approaches like Columbia Gas of Pa., Inc. v. Marshall and U.S. Air, Inc. v. Occupational Safety & Health Rev. Comm'n, and contrasted them with the Supreme Court’s modern narrowing of “jurisdiction” in Reed Elsevier, Inc. v. Muchnick and Sebelius v. Auburn Reg'l Med. Ctr..

The central pivot is City of Arlington v. FCC, quoted for the proposition that carving out some “jurisdictional” subset of ultra vires claims lacks principle because the question is always whether the agency exceeded what Congress permitted. From that, the court drew support from post-City of Arlington appellate authority—United States v. Cortez, Jalbert v. SEC, PGS Geophysical AS v. Iancu, and 1621 Route 22 W. Operating Co., LLC v. Nat'l Lab. Relations Bd.—to conclude that agency-authority arguments can be forfeited and are subject to statutory exhaustion requirements.

The court’s citations to Lopez-Munoz v. Barr, Insurance Corp. of Ireland, Ltd. v. Compagnie des Bauxites de Guinee, and Bender v. Williamsport Area Sch. Dist. served to contrast Article III courts (which must ensure a case or controversy) with agencies (which are purely creatures of statute), thereby explaining why the “non-waivable jurisdiction” analogy is misplaced in the administrative context. The court also referenced State ex rel. Balderas v. United States Nuclear Regul. Comm'n to confirm that courts can correct ultra vires action—but not necessarily where a party has failed to properly preserve the issue.

3) General duty clause independence from other regulatory compliance

The court treated the general duty clause as an independent safety obligation, relying on Whirlpool Corp. v. Marshall for its deterrent purpose and on Teal v. E.I. DuPont de Nemours & Co. for the framing that employers owe “reasonable care” to protect employees from recognized hazards likely to cause serious harm.

It rejected the idea that compliance with other bodies’ requirements can “absolve” a general duty clause violation, citing Int'l Union, United Auto., Aerospace & Agric. Implement Workers of Am. v. Gen. Dynamics Land Sys. Div. and Duriron Co. v. Sec'y of Lab. (including the acceptability of expert testimony to establish industry knowledge and appropriate precautions).

4) Rulemaking vs. adjudication discretion

For the Secretary’s choice of adjudication, the court invoked SEC v. Chenery Corp. (agency discretion to choose policymaking mode) and cited Ramsey Winch Inc. v. Henry to emphasize the fact-specific nature of the underlying duty. It echoed the notion that adjudications often address highly fact-specific contexts through Nat'l Biodiesel Bd. v. EPA (quoting Conf. Grp., LLC v. FCC) and relied on Puffer's Hardware, Inc. v. Donovan to uphold use of the general duty clause rather than insisting on a rulemaking prerequisite.

The court’s mention of Loper Bright Enters. v. Raimondo appears in the CMS memorandum discussion to note (consistent with the petitioner’s own position) that courts do not defer to agency interpretations of law—undercutting any attempt to treat CMS memoranda as binding legal displacement of OSHA authority.

5) Fair notice / due process

The court applied FCC v. Fox Television Stations, Inc. and the “discernable standard” formulation from Fed. Express Corp. v. Dep't of Com. (quoting United States v. Bronstein). It found no due process violation, leaning heavily on the D.C. Circuit’s psychiatric-hospital workplace violence precedent, BHC Nw. Psychiatric Hosp. v. Sec'y of Lab., which upheld citations using general language where context and explanation made obligations understandable.

It also analogized to ECM BioFilms, Inc. v. FTC for the proposition that general terms are not inherently vague when they sufficiently flag the compliance problem.

6) Effectiveness and feasibility; evidentiary standards

The legal standard for general duty clause abatement drew from the court’s own precedent F&H Coatings LLC v. Acosta and the broader “materially reduce” approach reflected in BHC Nw. Psychiatric Hosp. v. Sec'y of Lab.. The opinion also cited UHS of Delaware, Inc. v. Sec'y of Lab. (quoting Beverly Enters., Inc. v. Herman) to articulate that abatement must be economically feasible and “technologically capable of being done.”

In rejecting Cedar Springs’ reliance on Brennan v. Occupational Safety & Health Review Comm'n, the court clarified that taking some precautionary steps does not immunize an employer if additional feasible steps could materially reduce the hazard.

On substantial evidence review, the court cited Slingluff v. Occupational Safety & Health Rev. Comm'n. On feasibility definition, it relied on Baroid Div. of NL Indus., Inc. v. Occupational Safety & Health Rev. Comm'n. To show how feasibility may be established without exact costs, it cited SeaWorld of Fla., LLC v. Perez and also referenced feasibility indicated by practice elsewhere via Puffer's Hardware, Inc. v. Donavan, Mod. Drop Forge Co. v. Sec'y of Lab., and again SeaWorld of Fla., LLC v. Perez.

7) Burden of proof and “burden shifting” arguments

The petitioner argued the ALJ effectively shifted feasibility burdens. The court rejected that characterization, analogizing to non-burden-shifting judicial comments about a party’s lack of counterevidence, using Loop Corp. v. U.S. Tr. and Watz v. Zapata Off-Shore Co.. It framed misallocation of burden as legal error by reference to Amer. Energy, LLC v. Director, Off. of Workers' Comp. Progs., United States Dep't of Lab., but found no misallocation in this record.

8) Spoliation / sanctions and standard of review

The sanctions decision was reviewed for abuse of discretion under Burlington N. & Santa Fe Ry. Co. v. Grant. The court upheld adverse inferences because the record supported findings that Cedar Springs failed to take reasonable steps to preserve subpoenaed video and because the missing videos could have been probative (e.g., staffing levels and response times).

9) Briefing adequacy and waiver

The opinion also signaled that perfunctory expert-qualification attacks may be inadequately developed, citing Thompson R2-J Sch. Dist. v. Luke P. ex rel. Jeff P. and United States v. Hardman. Although not the main holding, it reinforces the court’s broader theme: procedural rigor matters in administrative review.

Legal Reasoning

Procedural gatekeeping (exhaustion): The court treated the CMS displacement argument as forfeited because it was not presented to the ALJ, applying OSHA exhaustion doctrine and refusing to revive the claim via a “jurisdiction” label.
Substantive authority (no CMS displacement): Even assuming review, CMS materials cited by Cedar Springs did not show the requisite “exercise” of statutory authority over employee working conditions. Patient safety overlap did not equal employee workplace violence regulation.
General duty clause as independent obligation: Compliance with other regulators/accreditors does not immunize an employer from OSHA’s general duty clause, which can require additional reasonable precautions against recognized hazards.
Permissible policymaking mode: OSHA may enforce the clause through adjudication rather than rulemaking where duties are fact-dependent and context-specific.
Notice and specificity: The citation’s terms (“adequate staffing,” “specialized security,” “near misses”) were sufficiently explained in the citation and record communications to provide fair notice.
Effectiveness and feasibility proof: Expert testimony, industry recommendations, staff testimony, and the hospital’s own post-citation changes supported findings that measures (e.g., secured nurses’ stations, radios/silent alarms, added security and staffing) would materially reduce violence risk and were feasible. Exact cost evidence was not required.
Evidence-preservation discipline: Overwriting subpoenaed videos justified adverse inferences where discrepancies and omissions were unexplained and potentially prejudicial.

Impact

Administrative “jurisdiction” reframed: The opinion strengthens a post-City of Arlington v. FCC approach in OSHA cases: challenges framed as “agency jurisdiction” are generally waivable and subject to exhaustion. Regulated entities should expect little tolerance for raising displacement/authority theories for the first time on judicial review.
Healthcare workplace violence enforcement: Psychiatric and behavioral health facilities should treat workplace violence as a core general-duty hazard. Patient-focused CMS participation conditions and accreditation standards (e.g., Joint Commission) are unlikely to displace OSHA enforcement absent clear, exercised statutory authority targeting employee working conditions.
Abatement proof model: The decision validates OSHA’s reliance on a combination of expert testimony, industry recommendations, and “what the employer did after the citation” to establish both effectiveness and feasibility. Post-citation improvements may thus become double-edged: good for safety, but evidentiary support that earlier compliance was feasible.
Litigation conduct and evidence holds: Video overwriting after subpoena triggers meaningful spoliation consequences. Employers in high-incident environments should expect rigorous scrutiny of retention systems, outage explanations, and logging practices.
Guidance documents after Loper Bright: While Loper Bright Enters. v. Raimondo undercuts judicial deference to agency legal interpretations, this case illustrates that guidance can still play a supporting evidentiary role (as “best practice” context), so long as liability is grounded in statute, record evidence, and factfinding rather than guidance-as-law.

Complex Concepts Simplified

General duty clause (29 U.S.C. § 654(a)(1)): A “backstop” requirement: even without a specific OSHA standard on a hazard (here, workplace violence), employers must provide a workplace free from recognized hazards likely to cause death or serious physical harm, using feasible measures that materially reduce risk.
Displacement under 29 U.S.C. § 653(b)(1): OSHA is displaced only where another federal agency actually exercises statutory authority over the same employee working conditions. Overlap in subject matter (patient safety and employee safety) is not enough.
“Jurisdiction” vs. “ultra vires” for agencies: Courts must assure their own Article III jurisdiction, but agencies operate within statutory authority granted by Congress. Under City of Arlington v. FCC, claims that an agency exceeded its authority are not automatically “non-waivable jurisdictional” objections; they can be forfeited if not properly raised and exhausted.
Rulemaking vs. adjudication: Agencies may make policy through rules (general prospective standards) or case-by-case adjudication. Under SEC v. Chenery Corp., the choice is typically left to agency discretion, especially where obligations are highly fact-specific.
Fair notice (due process): The regulated party must be able to discern what compliance requires. A citation can use general terms if it provides enough context and explanation to understand the required abatement.
Substantial evidence: A deferential review standard: the court asks whether the record contains enough relevant evidence that a reasonable factfinder could reach the agency’s conclusion, not whether the court would decide the facts differently.
Feasibility: A proposed measure must be technologically and economically capable of being done. Exact price tags are not always necessary if the record shows the measure is workable—especially where similar facilities use it or the employer later implements it.
Adverse inference (spoliation sanction): If a party fails to preserve relevant evidence (e.g., overwritten surveillance video), the adjudicator may infer the missing evidence would have been unfavorable, provided the circumstances warrant it and the sanction is proportionate.

Conclusion

The Tenth Circuit’s decision confirms robust OSHA authority to address workplace violence in psychiatric facilities through the general duty clause, notwithstanding parallel patient-safety regimes and private accreditation standards. Procedurally, it modernizes OSHA administrative review by treating “agency authority” objections as waivable and subject to exhaustion rather than as unwaivable “jurisdiction.” Substantively, it endorses fact-driven adjudication, permits contextual use of guidance, demands only fair (not perfect) notice, and approves proving effectiveness/feasibility through expert testimony, industry practice, and the employer’s own later implementation. Finally, it underscores that evidence-preservation failures—especially with subpoenaed recordings—can materially shape outcomes through adverse inferences.