“We are gratified by the total vindication of our client,” said Art Sapper, 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.”
In November 2006, OSHA issued citations to Volks Constructors, alleging failures to record some workplace injuries. The citations were issued more than 6 months – and in most cases – years after the last unrecorded injury occurred.
Even though the independent-but-divided, three-member Occupational Safety and Health Review Commission had upheld the charges as timely, the court of appeal reversed and vacated OSHA’s citations. Circuit Judges Karen LeCraft Henderson, Merrick Garland and Janice Rogers Brown held that OSHA’s citations had been issued after the statute of limitations had expired and that no “continuing violation” had occurred.