Labor & Employment Law Daily Wrap Up, PROCEDURE—4th Cir.: South Carolina’s ‘pre-enforcement, facial challenge’ to OSHA rule was brought too late, (Jun 25, 2026)

By Brandi O. Brown, J.D.

If OSHA initiates an enforcement proceeding against the state, however, then the state can argue that the agency exceeded its authority with the 2016 rule.

In a challenge brought by South Carolina to an interim final rule promulgated by OSHA in 2016, which relates to annual monetary penalty adjustments, the Fourth Circuit has agreed with the district court that the state’s facial attack under the APA is untimely. Under the current circumstances, where the agency has not yet moved to enforce its formal 2022 “finding” that the state has not complied with the federal regulations, the state’s APA arguments are a pre-enforcement, facial challenge subject to the six-year statute of limitations applicable under 28 U.S.C. § 2401(a). As such, the complaint, brought several months after the expiration of that six-year period, was untimely. If OSHA moves to enforce its finding, however, the state would be able to challenge its statutory authority to do so, the court added (McMaster v. United States Department of Labor, No. 25-1986 (4th Cir. June 24, 2026)).

In July 2016, OSHA promulgated an interim final rule pursuant to a 2015 statute that requires the agency to make annual adjustments to its monetary penalties. In the rule, OSHA asserted that existing state plans would have to increase their maximum and minimum penalty amounts as well to keep pace.

State did not comply. South Carolina, however, did not match the increase and came out of compliance. In OSHA’s first post-rule Federal Annual Monitoring Evaluation (FAME) analyzing South Carolina’s performance of its state plan, it was evident that the state had not yet increased its maximum penalties. In the subsequent three years, OSHA identified the state’s civil penalty rates as a “[n]ew [i]ssue[],” but it did not make a formal finding of noncompliance. The agency also did not issue formal findings of noncompliance for other states whose plans had not raised monetary penalties.

Formal finding. In 2022, OSHA issued a formal finding of noncompliance for South Carolina. Around the same time, it promulgated its 2022 inflation adjustment. It also published notice that year of the beginning of revocation of Arizona’s state plan in part based on that state’s failure to increase its monetary penalties.

South Carolina’s governor and its labor department brought suit in 2022 challenging the 2022 inflation adjustment, rather than the 2016 rule. In that case, the court held that the adjustment was not a final agency action because it merely implemented the 2016 rule and it held that it was not reviewable under the APA.

Pre-enforcement challenge. In March 2023, the governor and labor department brought this suit, in part challenging OSHA’s 2016 interim final rule. The U.S. DOL and OSHA, named as defendants, moved to dismiss, arguing that two of the counts, which were APA claims, were untimely because they had been brought outside of the APA’s six-year statute of limitations. The district court concluded that any injury suffered by the South Carolina plaintiffs had occurred in 2016 and that: (1) they still faced no credible threat and had no standing; and (2) their claims were untimely because they were injured in 2016. South Carolina appealed.

Too late. “Naturally,” the Fourth Circuit panel explained, “Plaintiffs face an uphill task in claiming that they may bring a facial challenge to a rule promulgated seven years prior to their suit.” Pointing to the U.S. Supreme Court’s 2024 decision in Corner Post, Inc. v. Board of Governors of Federal Reserve System, in which it explained that a right of action “‘accrues’ when the plaintiff has a complete and present cause of action—i.e., when she has the right to file suit and obtain relief,” the court explained that in this case, South Carolina was injured, and could have brought a claim, when OSHA first promulgated its rule in 2016.

It also rejected the state plaintiffs’ argument that they were not truly aggrieved by OSHA’s action until it presented a “credible threat” of enforcement in 2022. That argument, the court explained, “holds no water.” In fact, the court noted, the plaintiffs acknowledged at oral argument that they were injured, and could have brought their claim, when the rule was first promulgated in 2016. “This tracks with longstanding caselaw that permits pre-enforcement review of agency action,” the court explained, and “is fatal to Plaintiffs’ convoluted theory invoking a second injury.”

“Even if the threat of OSHA enforcement expired,” the court added, “that would not erase the reality that the cause of action had first accrued in 2016. But it is unclear why the threat would have expired, a mere six years after the rule was promulgated.”

And too early. However, the court noted that this conclusion does not mean that South Carolina is prevented from raising its substantive claims regarding OSHA’s statutory authority to promulgate the regulation—it can challenge the regulation as exceeding the agency’s statutory authority in enforcement proceedings, should there be any. The 2022 finding was not an initiation of an enforcement proceeding, however. If one occurs, then the plaintiffs could make the argument, but “under the terms of 28 U.S.C. § 2401(a), they have forfeited their chance to bring a pre-enforcement challenge.”

The case is No. 25-1986.

Judge: Gregory, R.

Attorneys: Cameron Reagan Cox, Office of the Governor of South Carolina, for Henry McMaster. Robert E. Horner, South Carolina Department of Labor, Licensing & Regulation, for South Carolina Department of Labor, Licensing & Regulation. Edmund Baird, U. S. Department of Labor, for U.S. Department of Labor, Occupational Safety & Health Administration and Keith E. Sonderling.

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