PUBLISHED

UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT

No. 22-1465

INDUSTRIAL SERVICES GROUP, INC., d/b/a Universal Blastco,

Plaintiff - Appellee,

v.

JOSH DOBSON, in his official capacity as North Carolina Commissioner of Labor; KEVIN BEAUREGARD, in his official capacity as Director of the Occupational Safety and Health Division of the North Carolina Department of Labor,

Defendants - Appellants.

Appeal from the United States District Court for the Western District of North Carolina, at Asheville. Martin K. Reidinger, Chief District Judge. (1:21-cv-00090-MR-WCM)

Argued: January 27, 2023 Decided: May 16, 2023

Before GREGORY, Chief Judge, WILKINSON, and HEYTENS, Circuit Judges.

Affirmed by published opinion. Chief Judge Gregory wrote the opinion, in which Judge Wilkinson and Judge Heytens joined.

ARGUED: Stacey Alayne Phipps, NORTH CAROLINA DEPARTMENT OF JUSTICE, Raleigh, North Carolina, for Appellants. Travis Wayne Vance, FISHER & PHILLIPS, LLP, Charlotte, North Carolina, for Appellee. ON BRIEF: Joshua H. Stein, Attorney General, Victoria L. Voight, Special Deputy Attorney General, NORTH CAROLINA DEPARTMENT OF JUSTICE, Raleigh, North Carolina, for Appellants. David I. Klass, FISHER & PHILLIPS LLP, Charlotte, North Carolina, for Appellee. USCA4 Appeal: 22-1465 Doc: 25 Filed: 05/16/2023 Pg: 2 of 20

GREGORY, Chief Judge:

The North Carolina Occupational Safety and Health Hazard Association (“NC

OSHA”) issued several itemized citations to Industrial Services Group (“ISG”) following

the on-site deaths of two ISG employees. Soon thereafter, ISG filed for declaratory and

injunctive relief against two North Carolina state officials, Josh Dobson, the North Carolina

Commissioner of Labor and acting Chief Administrative Officer for the North Carolina

Department of Labor (“NCDOL”), and Kevin Beauregard, the Director of NCDOL’s

Occupational Safety and Health Division, (collectively “Defendants”), in their official

capacities. ISG alleged that the issued citations were unlawful because they stemmed from

North Carolina’s occupational health and safety plan, which in their view violates 29

U.S.C. § 657(h) of the federal Occupational Safety and Health Act (“OSH Act”), a

provision that forbids Defendants from evaluating their employees’ enforcement activities

based on the number of penalties they have assessed and citations they have issued.

The district court denied Defendants’ motions to dismiss and for judgment on

pleadings, holding, inter alia, that they were not entitled to Eleventh Amendment sovereign

immunity because ISG’s claims satisfied the Ex Parte Young exception. Through this

interlocutory appeal, the parties ask us to grapple with that same issue. Defendants also

raise, for the first time, two arguments questioning ISG’s standing and insist that the

abstention doctrine bars federal courts from hearing ISG’s suit. For the reasons that follow,

we affirm the district court’s decision to deny Defendants Eleventh Amendment immunity

and decline to exercise pendent appellate jurisdiction over Defendants’ newly-raised claims.

2 USCA4 Appeal: 22-1465 Doc: 25 Filed: 05/16/2023 Pg: 3 of 20

I.

A.

Enacted in 1970, the OSH Act establishes