Supreme Court nominee ruled against SeaWorld

Merrick Garland sided with OSHA in killer whale dispute

By Mike DeForest - Investigative Reporter

ORLANDO, FLla. - Merrick Garland, who has been nominated by President Barack Obama to fill a vacancy on the U.S. Supreme Court, issued a court ruling that prompted SeaWorld to permanently ban trainers from swimming with killer whales during shows.

Garland, the chief judge of the U.S. Court of Appeals for the District of Columbia circuit, was one of three judges who heard SeaWorld’s appeal of safety citations issued by the Occupational Safety and Health Administration in the wake of a killer whale trainer’s death.

During a court hearing before Judge Merrick in 2013, SeaWorld was represented by attorney Eugene Scalia, the son of the late Supreme Court Justice Antonin Scalia.

Garland has now been nominated to fill the Supreme Court seat vacated by the death of Scalia last month.

Shortly after a killer whale named Tillikum drowned and dismembered trainer Dawn Brancheau following a performance at Shamu Stadium in 2010, OSHA issued several citations against SeaWorld for failing to protect its employees.

An administrative law judge agreed with OSHA’s recommendations that SeaWorld trainers remain behind physical barriers or stand a safe distance away from the water when interacting with killer whales during performances.

In 2013, SeaWorld appealed the administrative law judge’s ruling.  During oral arguments in Washington D.C., SeaWorld attorney Eugene Scalia unsuccessfully argued that if OSHA could regulate interactions between trainers and whales, the agency could potentially ban tackling in the professional football or implement speed limits in NASCAR races.

Merrick, along with fellow appeals court judge Judith Rogers, ruled 2-1 in favor of upholding the OSHA citations.

"There will still be human interactions and performances with killer whales," Rogers wrote in the court’s opinion. "The remedy will simply require that they continue with increased safety measures."

SeaWorld declined to appeal the judges’ ruling to the U.S. Supreme Court.

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