Houston Aquarium, Inc. v. OSHRC, No. 19-60245 (5th Cir. July 15, 2020) (Barksdale, Higginson, Duncan)

This case is about H-Town’s Downtown Aquarium—a place that’s ridiculous or ridiculously awesome depending on who you ask. Here’s the pitch from the Aquarium's website:

Downtown Aquarium is the product of redeveloping two downtown Houston landmarks – Fire Station No. 1 and the Central Waterworks Building. This magnificent six-acre entertainment and dining complex is a 500,000-gallon aquatic wonderland, home to over 300 species of aquatic life from around the globe. With a full-service restaurant, an upscale bar, a fully equipped ballroom, aquatic & geographic exhibits, shopping and a variety of amusements, Downtown Aquarium has it all!

Not hooked yet? What if I told you the place is also home to several white tigers? Why? Well, if you’re asking, you’re obviously not Mike Tyson or any of the 12,825 Houstonians and  H-town visitors who have given the Aquarium an average 4.1/5 stars on Google Reviews.

Anyway, this case isn’t about the tigers, though they have certainly been the subject of plenty of litigation. This case is about the many divers the Aquarium employs to feed the animals and clean the tanks. Back in 2011, an Aquarium employee complained to that some of the dives taking place at the Aquarium were not scientific, which, if true, would mean the Aquarium was violating OSHA’s Commercial Diving Operations regulations. An ALJ agreed, and a divided OSHRC panel affirmed.

The Fifth Circuit reversed, holding that “[u]nder a plain reading of [29 C.F.R. § 1910.402], as well as the regulation guidelines and regulatory history, these dives do qualify as scientific diving.” Judge Higginson’s opinion for a unanimous panel doesn’t discuss deference doctrines because the Court’s holding was based entirely on a plain-language analysis supplemented with a painstaking disquisition on the regulations broader structure and history.

Houston Aquarium, Inc. v. OSHRC
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