Pres. Obama Announces Nominee to S.Ct. – A Moderate on Labor and Worker Safety

By Kara M. Maciel and Eric J. Conn

President Obama has tapped a moderate in Judge Merrick Garland, the Chief Judge of the U.S. Court of Appeals for the D.C. Circuit, for the U.S. Supreme Court vacancy left by the late Antonin Scalia. Here is a link to a video about Judge Garland posted on the White House website. Presidential politics may, however, stand in Garland’s way, as Senate Republicans have threatened to block any nominee, even from getting a hearing or vote.Judge Garland

Because the D.C. Circuit is often referred to as the second-highest court in the land, Judge Garland’s court opinions have been closely watched. Garland, nominated to the federal court of appeals by President Bill Clinton, has been viewed as a moderate left-of-center jurist, and has taken the side of business in quite a few high profile cases.

One example is Volks Constructors, an Occupational Safety and Health Administration case in which Judge Garland overturned the decision of the OSH Review Commission and concurred with the employer’s argument that OSHA’s six-month statute of limitations applies to injury and illness recordkeeping violations (making an inaccurate or incomplete OSHA log). OSHA had tried to impose a legal theory that inaccurate logs were a “continuing violation” that tolled the statute of limitations period for every day the log remained inaccurate. Judge Garland ruled that a recordkeeping violation occurs at a point in time when the recordkeeping entry was due to be perfected, it does not continue beyond that date, and OSHA may not cite beyond six months from that date. Judge Garland cautioned not to override his opinion, emphasizing:

“This does not mean, however, that the statute could not admit of a continuing violation theory under other circumstances.”

OSHA is working on a rulemaking to undo that decision.

President Obama selected Judge Garland as a moderate in what appears to be an effort to Continue reading