D.C. Circuit to Hear Oral Arguments On Continuing Violations in AKM Case

A ruling by the Occupational Safety and Health Review Commission that an employer's failure to keep records was a continuing violation is scheduled to go before a federal appeals court in Washington, D.C., Jan. 20 (AKM LLC v. Secretary of Labor, D.C. Cir., No. 11-1106, oral arguments scheduled 1/20/12).

A three-judge panel of the U.S. Court of Appeals for the District of Columbia Circuit will hear oral arguments in the case, on which the commission ruled in March 2011, with one dissent, following a petition for review by the employer, AKM LLC, doing business as Volks Constructors.

The Occupational Safety and Health Administration inspected a Volks facility in Louisiana during the second half of 2006. Following the last of these inspections, OSHA cited the company for four recordkeeping violations, encompassing 169 instances in which the employer failed to record specific injuries or illnesses, as well as an alleged failure to verify and correct year-end injury-and-illness logs for four straight years, from 2002 to 2005.

In the joint stipulation of facts that the parties submitted to the review commission's then-chief administrative law judge, Irving Sommer, Volks conceded that the recordkeeping violations occurred and that the proposed penalties of $13,300 were appropriate.

However, Volks argued, none of the violations for which it was cited had occurred within the limitations period laid out in Sec. 9(c) of the Occupational Safety and Health Act, which states, “No citation may be issued under this section after the expiration of six months following the occurrence of any violation.”

None of the violations at issue, Volks continued, had occurred within six months of the Nov. 8, 2006, citation date, and some went as far back as 2002.

ALJ Rules Against Company

The chief administrative law judge disagreed, holding in his June 25, 2007, decision that the commission's 1993 ruling in Secretary of Labor v. Johnson Controls (15 OSHC 2132) dictated that the six-month period described the length of time that OSHA had to cite the employer after it discovered or should have discovered the violation.

Following oral arguments in Washington, D.C., in November 2010, the commission affirmed the judge's decision in March 11, 2011, in a two-to-one decision, with then-Commissioner Horace A. Thompson dissenting (40 OSHR 917, 11/4/10; 41 OSHR 237, 3/17/11). The commission majority described failures to keep adequate injury-and-illness records as continuing violations that lasted five years, the length of time employers are required to retain such records.

In his dissent, Thompson, who left the commission last April, said that “there is no hint of ambiguity” in the OSH Act's limitations period of six months.

According to the brief it filed with the D.C. Circuit Nov. 22, Volks will argue, as Thompson said in his dissent, that the continuing-violation ruling ignores the plain words of the OSH Act. In its brief, Volks focused on the dictionary definition of the word “occurrence” from the statute. The word, it said, means “something that takes place,” an “event,” or an “incident.”

Secretary Claims Consistent Policy

In its brief , filed with the court Sept. 28, the Labor Department argued that treating recordkeeping lapses as continuing violations has been consistent department policy since the OSH Act was enacted in 1971, and that relevant case law going back further than that, to 1966, supports this position.

Volks also argued that the secretary of labor's interpretation of Sec. 9(c), as well as that of the commission, subverts congressional intent in enacting a statute of limitations, and could lead to a requirement that employers retain records for many decades.

In its brief, the Labor Department calls this argument meritless, arguing that the standards and regulations Volks cited, which generally cover retention of medical records, are not at issue in the case.

The department also claimed that Volks's argument that extending limitations periods could lead to “staleness” issues, as memories fade, is also not relevant to this case, which included the stipulation by Volks that the violations had occurred.

In oral arguments before the D.C. Circuit, the parties will each have 10 minutes before Judges Karen L. Henderson, Merrick B. Garland, and Janice R. Brown. The AKM case is the third on the morning's docket, with proceedings getting under way at 9:30 a.m. The D.C. Circuit is located at 333 Constitution Ave., N.W., Washington, D.C.

By David Schwartz  

The review commission's decision in Secretary of Labor v. AKM LLC, which includes that of the former chief administrative law judge, is available at http://op.bna.com/env.nsf/r?Open=sbra-8qmtcr .  

The secretary of labor's Sept. 28, 2011, brief before the D.C. Circuit is available at http://op.bna.com/env.nsf/r?Open=sbra-8qmter .  

Volks' Nov. 22, 2011, brief is at http://op.bna.com/env.nsf/r?Open=sbra-8qmtdq .