DC Circuit Vacates Volks Constructors Citations

The unanimous decision by a panel of three judges is a significant decision because it wipes out the DOL argument that failing to maintain injury logs is an ongoing violation.

A major decision on April 6 by a three-judge panel of the U.S. Court of Appeals for the District of Columbia Circuit is a defeat for the Labor Department and a victory for employers who challenge recordkeeping citations. The cited company in this case said OSHA's citations issued in November 2006 were filed more than six months after the last unrecorded injury had occurred at its facility in Prairieville, La., and the company said this violates a provision in the OSH Act: "No citation may be issued under this section after the expiration of six months following the occurrence of any violation." DOL argued the violations continued during the five-year period OSHA's recordkeeping regulations say the injury logs must be maintained. Volks, however, argued the violations were one-time events, not continuing ones.

The Occupational Safety and Health Review Commission sided with DOL in a 2-1 decision in March 2011, but the appeals court panel -– Judges Karen LeCraft Henderson, Merrick B. Garland, and Janice Rogers Brown -- unanimously disagreed. The case is AKM LLC, dba Volks Constructors v. Secretary of Labor, et al., No. 11-1106, an appeal from OSHRC Docket No. 06-1990.

The citations issued by OSHA claimed Volks had failed to record injuries at the facility between January 2002 and April 2006.

"We are gratified by the total vindication of our client," said Art Sapper, a partner in McDermott Will & Emery's OSHA Practice Group who argued the case. "We believed all along that the statute of limitations was controlling and needed to be given greater respect than OSHA and the Review Commission had given to it. We appreciate the thoroughness of the court's unanimous decision and the consideration reflected in the lead and concurring opinions."

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