On February 27, 2013, the Supreme Court of the United States in
Gabelli v. SEC unanimously disapproved of the so-called
discovery rule for postponing the running of a statute of
limitations when a federal government agency seeks a civil
penalty. The Court held that the limitations period begins to
run once a violation occurs, and is not postponed until the agency
discovers or reasonably should have discovered the violation.
"Supreme Court Rules SEC Has Five Years to Seek
Penalties" for more information.)
Although the Gabelli decision did not directly deal
with the Occupational Safety and Health (OSH) Act, it effectively
eliminates what might have remained of the OSH Review
Commission's 1993 Johnson Controls decision, which had
endorsed the use of a discovery rule in Occupational Safety and
Health Administration (OSHA) recordkeeping cases.
Together with the U.S. Court of Appeals for the District of
Columbia Circuit's decision in AKM LLC dba Volks
Constructors v. Secretary of Labor, 675 F.3d 752 (D.C. Cir.
2012), Gabelli ends any possibility of OSHA extending the
OSH Act's limitations period. In Volks (in which
McDermott represented the employer), the D.C. Circuit disapproved
of OSHA's continuing violation theory, under which the
limitations period does not begin to run until the violation is
corrected. Although the D.C. Circuit reserved in a footnote
whether OSHA might use a discovery rule to extend the limitations
period, the Gabelli decision eliminates that
As a result, employers should not accept an OSHA citation
alleging violations more than six months old.
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