Citing National Railroad Passenger Corp v. Morgan, D.C. Circuit Finds That OSHA Recordkeeping Violations are Discrete, Not Continuing, Events

In AKM LLC v. Sec’y of Labor, 675 F.3d 752 (D.C. Cir. 2012), the Court affirmed the determination of the lower court that citations issued by OSHA more than six months after the initial occurrence of several recordkeeping violations were untimely and should be vacated.  In so holding, the Court found unpersuasive OSHA’s argument that, because such records are required to be preserved for five years after their creation, the deficiency was a continuing, rather than discrete, violation.  Finding that both the statutory text and the legislative history were consistent, the Court held that the language “no citation may be issued…after the expiration of six months following the occurrence of any violation” refers to a “discrete antecedent event – something that ‘happened’ or ‘came to pass’ ‘in the past.’”  In support of this conclusion, the Court cited Nat’l R.R. Passenger Corp. v. Morgan, 536 U.S. 101, 109-10 & n.5 (2002).

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