Appeals Court to Hear Arguments in SeaWorld Case

SeaWorld stopped allowing trainers to be in the water with killer whales after trainer Dawn Brancheau's death in 2010, but it is still challenging OSHA's citations in the case.

Three judges of the U.S. Court of Appeals for the D.C. Circuit will hear arguments Nov. 12 at the Georgetown University Law Center in a high-profile challenge to OSHA's general duty clause enforcement. Lawyers representing the U.S. secretary of Labor and SeaWorld of Florida will have only 15 minutes per side to present their cases for why OSHA's two citations against SeaWorld should be upheld or vacated, as the theme park contends. Its legal team includes Gibson, Dunn & Crutcher LLP's Eugene Scalia, son of U.S. Supreme Court justice Antonin Scalia.

OSHA filed two willful citations against SeaWorld after investigating the death of whale trainer Dawn Brancheau on Feb. 24, 2010, when a whale named Tilikum pulled her into the pool during a performance and killed her. While an OSHRC administrative law judge affirmed the citations in June 2012, he downgraded them from willful to serious.

The Solicitor of Labor's brief on behalf of Secretary Thomas Perez notes SeaWorld stopped allowing trainers to be in the water with killer whales after Brancheau's death and has separated them with barriers or distance, which were the abatement measures proposed by OSHA in this case. But SeaWorld argues the agency overreached by using the general duty clause here and that barriers and distance create additional hazards for the trainers. The solicitor's brief answers both of these arguments.

The case is SeaWorld of Florida, LLC v. Thomas Perez, No. 12-1375. Judges Merrick Garland, Judith Rogers, and Brett Kavanaugh are assigned to decide the case.

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