Take the Fifth

Designated for publication

• Angel Brothers Enterprises, Ltd. v. Walsh, 20-60849, petition for review of OSH Review Commission Decision
  • Costa, J. (Jones, Costa, Duncan), Jones, J., dissenting; administrative law, occupational safety
  • Denying petition for review of decision by the Occupational Safety and Health Review Commission, which imputed supervisor’s knowledge of safety rule violation (doing excavation work without cave-in protection) to employer for purposes of assessing a penalty against the employer for willful violation.
  • The only element of proof of an OSHA violation challenged by the company is the element that “the employer had actual or constructive knowledge of the conditions through the exercise of reasonable due diligence.” The Court held that the knowledge of an “inanimate business entit[y]” can only be shown through its “agents,” including supervisors, calling this “Agency Law 101.” However, the Court also noted that “it is not so simple,” because “the supervisor’s knowledge should be imputed to the employer only if the supervisor’s conduct was foreseeable in a case where the supervisor’s own conduct constitutes the OSHA violation.
  • The Court rejected the company’s argument that the supervisor here was the one who committed the violation. “That situation is not present here. The violation was a crew member’s working in the unsafe trench, and foreman Vidal allowed the violation to occur in contravention of his duty to ensure worker safety. … [A]uthorizing another’s violation is not the same as committing the violation oneself. … [The] theory that would impute a supervisor’s knowledge to the employer only when he has passive involvement in a subordinate’s safety violation upends agency principles.”
  • The Court also held that there was substantial evidence in the record to support the agency’s finding that, while the employer had work rules to prevent the violation and communicated those rules to employees, it failed to effectively enforce the rules when violations were discovered. The Court specifically rejected the dissent’s opinion that a relative paucity of OSHA citations demonstrated effective enforcement of safety rules. “[T]he Commission did not have to accept the statistically implausible claim that although OSHA found violations during 80% of its five inspections, the company committed no safety violations the other 6,000 or so times it performed excavations. Probability aside, testimony from Angel Brothers supervisors rejects the idea that the company was so unlucky as to be violating safety rules only when OSHA was looking. Field safety manager Bennett said that he ‘frequently’ finds ‘irregularities’ when inspecting excavation worksites and on ‘rare’ occasions those unsafe conditions exist when employees are in the trench. Indeed, Bennett discovered a spoil pile being too close to the excavation at Vidal’s worksite the day before OSHA’s inspection. But no one was disciplined for that. Even Angel Brother’s Director of Safety does not maintain the company has a perfect safety record other than when OSHA visits.”
  • Judge Jones dissented. She noted that “[t]he Commission admitted that its decision on this factor [of the employer’s effective enforcement] was a close call. I would say it was close to a deranged call.”

• Harper v. Lumpkin, 20-70022, appeal from S.D. Tex.
  • per curiam (Willett, Ho, Duncan), habeas corpus
  • Denying certificate of appealability from district court’s denial of capital prisoner’s 31 claims for federal habeas relief. Petitioner sought COA on a Confrontation Clause claim, a Strickland claim for ineffective assistance of counsel during voir dire, a Batson claim, a Strickland claim as to counsel’s failure to argue that the petitioner’s mental illness rendered his confession involuntary, and a Strickland claim that his counsel failed to object on reliability grounds to the government’s expert on future dangerousness.
  • The Court held that the district court did not err in not addressing the petitioner’s Confrontation Clause claim, which had been referenced only in a footnote in his habeas petition. “We agree with the district court that Harper did not sufficiently plead his Confrontation Clause claim. A conclusory footnote in a 291-page federal habeas petition is not enough to put a district court on notice of a claim.”
  • On petitioner’s first Strickland claim regarding voir dire, the Court held that the state habeas court’s finding that the jurors at issue all indicated they would consider mitigating evidence was supported by evidence in the record, and that this was sufficient to show that petitioner had failed to meet Strickland’s first prong, that the counsel’s performance was deficient.
  • On petitioner’s Batson claims, the Court sorted through them and determined that a number of them were procedurally defaulted. As to the non-defaulted Batson claims, the Court concluded that the district court’s denial of those claims was not debatable.
  • On petitioner’s Strickland claim regarding the future-dangerousness expert, the Court held that, while expert testimony on future dangerousness may be susceptible to being unreliable, there was no Strickland error here where “(1) the record shows that the court would have denied a Kelly objection, and (2) there was ample evidence of future dangerousness in the record apart from Dr. Moeller’s testimony.”
  • On petitioner’s Strickland claim regarding the voluntariness of his confession, the Court held that the determination of the habeas court was not unreasonable in light of the facts in the record. “The habeas court noted that the trial court watched the video of Harper’s confession which showed that Harper was given his Miranda warnings, asked questions about the warnings, and did not appear intoxicated or otherwise impaired. Based on these facts, the trial court found that Harper was not coerced in any way, and admitted the confession.”

• E.T. v. Paxton, 21-51083, appeal from W.D. Tex.
  • Wilson, J. (Elrod, Oldham, Wilson), COVID-19
  • Granting stay pending appeal of district court’s permanent injunction against Texas attorney general’s enforcement of Texas governor’s executive order prohibiting local governments from imposing mask mandates.
  • The executive order, GA-38, provides that “‘[n]o governmental entity, including a . . . school district, . . . and no governmental official may require any person to wear a face covering or to mandate that another person wear a face covering[.]’ This provision superseded ‘any face-covering requirement imposed by any local governmental entity or official,’ and it exercised the Governor’s authority to suspend several Texas statutes.” Plaintiffs sought injunction of enforcement of GA-38 on the basis that it violates the Americans with Disabilities Act, the Rehabilitation Act, the Individuals with Disabilities Education Act, and the American Rescue Plan Act.
  • The Court held that the Attorney General was likely to succeed on the merits of his appeal of the district court’s permanent injunction. The Court held that the plaintiffs “likely falter in showing any concrete, or actual or imminent, injury as a result of the enforcement of GA-38. … The risks of contracting COVID-19 for these plaintiffs are certainly real, but the alleged injury to plaintiffs from the enforcement of GA-38 is, at this point, much more abstract. This is so because the binary choice envisioned by the district court—either stay home or catch COVID-19—is a false one: it wholly elides the various accommodations available to the plaintiffs (e.g., distancing, voluntary masking, class spacing, plexiglass, and vaccinations) to ensure a safer learning environment, regardless of GA-38’s prohibition of local mask mandates.”
  • The Court also held that plaintiffs likely fail as a matter of law because they have not exhausted their administrative remedies under the IDEA and because “the record is devoid of evidence that plaintiffs have made any requests for reasonable accommodation under the ADA or the Rehabilitation Act.”
  • The Court also held that the AG was likely to succeed on his argument that the district court erred in holding that the ADA, Rehabilitation Act, and IDEA preempted GA-38, because enforcement of GA-38 would not necessarily conflict with the federal statutes’ requirements. “[A]s outlined above, and bearing in mind that IDEA’s exhaustion requirement may well bar this argument from the outset, that does not appear to be the case. Other means exist to control the spread of COVID-19 in school settings like vaccination, social distancing, plexiglass, and voluntary mask wearing.”
  • The Court also held that the blanket injunction against enforcement of GA-38 statewide was overbroad. “First, the injunction could have been tailored to address only the seven plaintiffs in this action, as well as their school districts. More generally, the district court’s injunction could also have been tailored to require only individualized accommodations by schools, on a case-by-case basis, while leaving GA-38’s general ban on mask mandates in place.”
  • The Court also held that injunction of enforcement of a governor’s executive order necessarily caused the State irreparable harm by “denying the public interest in the enforcement of its laws.” The Court also held that maintaining the status quo (prior to the district court injunction) would not substantially injure the plaintiffs.

Unpublished

• Rivera v. Garland, 19-60137, petition for review of BIA order
  • per curiam (Southwick, Oldham, Wilson), immigration
  • Denying Honduran citizen’s petition for review of BIA order dismissing appeal of IJ’s denial of application for asylum, withholding of removal, and protection under the Convention Against Torture.

• Celestin v. Garland, 20-60501, petition for review of BIA order
  • per curiam (Southwick, Oldham, Wilson), immigration
  • Denying Haitian citizen’s petition for review of BIA order dismissing his appeal from the denial of his applications for asylum, withholding of removal, and protection under the Convention Against Torture.

• Hernandez v. Mayorkas, 21-10526, appeal from N.D. Tex.
  • per curiam (Clement, Haynes, Higginson), immigration
  • Affirming dismissal of suit for lack of subject matter jurisdiction against federal immigration officials arising from denial of Form I-212 challenge to order of removal.

• Prince-Moore v. Texas Dow Employees Credit Union, 21-20205, appeal from S.D. Tex.
  • per curiam (King, Costa, Willett), employment discrimination, Family and Medical Leave Act
  • Affirming dismissal of employee’s claims against employer based on contractual waiver of claims.

• U.S. v. Dillard, 21-30125, appeal from W.D. La.
  • per curiam (Barksdale, Engelhardt, Oldham), criminal, sentencing
  • Affirming 36-month sentence on conviction of possession of a firearm after felony conviction.

• U.S. v. Morales, 21-40231, appeal from S.D. Tex.
  • per curiam (Jolly, Willett, Engelhardt), criminal
  • Granting Anders motion to withdraw, and dismissing appeal.