is like marge x poultry processing plant and a key tool towards effectuating that responsibility is the inspection warrant for many violations affecting worker safety there is really little other way for the agency to determine whether violations are ongoing other than going in and taking a look at in this case what happened was that in february twenty sixth seen there was a serious workplace accident that marge act required to report to osha because it resulted in the inpatient hospitalization of a worker and that prompted ocean specters to go to the marge act facility one of the things that they asked for when they were there were three hundred logs these are mandatory records of injuries and illnesses that various employers particularly  high employers in the industries were known to have a lot of hazards not low hazard industries but high hazard industries are required to keep these records they're required to keep them for a period of five years and here o sha asked to see these records going back for three years when they looked at those records when osha personnel with extensive experience in with poultry processing plant investigations looked at these records they found cause for concern and because marge i could not consented to an inspection that went anywhere beyond the particular tools an individual who had been involved in this february along with declarations of osha person now and ultimately the magistrate held a hearing and testimony was given and what that presentation showed was that in looking at these records osha had found the very kinds of injuries that you would expect to see if a poultry processing plant were engaging in a number of known types of violations or failures to do a variety of things to address known hazards in this industry ask you a procedural question before you continue the rest of your argument has osha really issued a warrant as narrowed by the district court or decided to just hold off on everything until this appeal is completed right so they have held off until this appeal is completed with the hope that they can do what you know one investigate inspection that addresses all of the concerns at once and also frankly the posture of the case was a little bit out of the ordinary we would normally i think be accustomed to seeing a court when it determines that certain areas  are appropriate for a warrant to let the warrant stand with regard to those and aquash it in all other respects here what the court did was quashed the warrant in its entirety while simultaneously saying you've established reasonable suspicion and you've established a proper constitutional basis for proceed to inspect with regard to these four hazards but nonetheless question its entirety and that left the the scope of inspection that the program inspection would give that right that's right but it also specified that they were seeking to inspect with regard to the bases laid out in the declarations for example and in the declaration for example of assistant area director mccullough it's more limited it's limited that declaration is addressing these specific hazards that we're now concerned with so we have the four areas that the district court said the agency had established reasonable spaces suspicion for and now were before this court to address five others and these are the ones where again the agency personnel looked at the law and found cause for suspicion now march acts response first bonds of the district court was in a fact well there could be innocent explanations for these injuries it's possible that they weren't caused by violations your honor is we don't dispute that but that's not the constitutional question that's not the constitutional standard the issue is courts have said again and again isn't whether there might be an innocent explanation it's only whether as a constitutional matter the question is only whether the agency had a plausible basis for its concerns because we're not talking here about osha issuing citations determining that violations have  place that's a different standard violations have four elements they once issued we subject to challenge etc etc what we're talking about here is whether osha gets to take a look absolutely brattle discretion on the part of the management on the part of the management you know whether whether or not you have an accident whether or not it in fact to turn it into a program situation when the plan that was drawn up for the for that division for whatever district for had a headache and the way in which you selected the very neutral way in which you select program inspections and then we shift we take an accident and all of a sudden the management can go to the whole the whole work of that that's a that's a total it as i see it unbridled discretion or maybe you can tell me how the discretion is bridled up once or once there's an accident so let me be very clear about this point that question is not presented in this and ten yes yes but sat i want to know where in the document i can find constraints on the management's management meaning whoever calls the shots decision to turn and inspection for the accident it to a program inspection so maybe i have a totally wrong you're out of the document to which you're referring is a regional emphasis program which at the don't have the page number in front of me again because this is not at issue in this appeal but that document directs local area directors that whenever there is the kind of accident serious accident that was reported here for example that prompts an unpro inspection they are to expand it into a program to expection if it's at a poultry processing plant in this region now there are some questions about resources presented there but it's true that any time osha seeks a warrant undertake any kind of inspection there's always a determination that has to be made about whether resources permit it so there wasn't discretion in the sense that other than the resource question that policy simply dictated that in every instance on are absolutely but let me just add one more thing about this just to go back to my rich so that my original answer doesn't sound odd the reason i referenced the courts is that in barlow's the concern about unbridled discretion was about people in the field making determinations and doing warrantless inspections here even when osha would seek to do an expansion of a search they had to go to court to get a warrant and so here we did that and so it was the district court that was looking at what was presented we have not taken an appeal of the portion that your i judge that you're identifying as an area of concern the question here is much simpler and much more straightforward here it's about whether or not the agency had a plausible basis for its concerns and we think that there's no question that it did on this record where we have serious  injuries and marje act will make the argument that these are potentially not serious at all but the record speaks volumes and it speaks otherwise because in each of these areas we have individuals losing time at work or being placed on restricted work for extended periods i see that i'm running short of time i'm happy to go into more detail on what this record shows i'm sorry you say some rebuttal time if there are no questions that is what i will do i thank you your hon there is nothing in that program that put any constraint on the program and in fact judge kelley noted that the government argued that we selected everybody and the only discretion director i had was to the select except for he disliked it everybody but one company for that hope plan and he had unbridled discretion decide whether to go even do the investigation of hospitalization call or a complaint call which he admitted during the transcript and then it was his unfettered discretion to decide when did he have the resources to do one of these things and on top of everything else is the re they had a list that they were supposed to pick from and margit was any on the list there was no bounds to his discretion at all let me ask you this question let's say that a different poultry processing plant not march jack has a number of incidents let's say that the incidence undoubtedly cover twelve out of the sixteen noted possible hazards at that point can the agency say we're going to go in for twelve we might as well use the program matic inspection for that poultry plant because we only have four more to go with that be unbridled discretion in your opinion in the sense that they left that decision to the field officer it violates what barlow's said that you can't give the unf discretion to all field officer which is what they did so is it in that particular situation i would say yes because that's not what the program said that you could have written the program and the program has a constraint in it there's a random selection provision in the plan that says we will randomly select one and we will go out and that type of a neutral ministry a plan it's been upheld by the courts over and over and over again but they didn't use that part of the plan they use facility and that's that is true that's what this court has said in sarasota congress that's not the facts in this case was made what they tried to do here but one of the one of the fundamental problems with what they've trying to do is they're trying to take specific evidence and th to sears or to congress and say we've got specific evidence of let's just use the example six sprains and strengths and twenty fifteen and therefore we want to investigate the doesn't this is what happened so one of those six examples was somebody sprained their right hand that's what it says on the law and the other one says i bruise my right foot that's that's all there is there are one thousand one hundred employees in marjah and the period of time they looked at covered over two million hours so i have six planes of rivers in ankles and  knees what does that show us it doesn't show is anything at all that's going into gives a reasonable suspicion of a possible violation so your point as i understand the brief maybe not the heading in the brief but the actual text of the argument is not that the three hundred longs cannot in the appropriate case provide the requisite reasonable suspicion for something correct but that in this case they do not well in this  case let me give you an example that's in the transcript and why because if you had if you had eleven hundred employees and you had one thousand spring down cause in the course of two months you might say there's a problem somewhere and i would think the court below would have looked at those facts and exercise their discretion judge kelley got it right he properly said here's the standard the question for this court is not whether judge of killing made illegal or he did he read the decision the standard in the words he which is why i was looking for standards yes because this is not a i know about the program but there are standards about that it's all at random it's a lottery there's nothing in it in the writing that has a thing to do with a programmed inspection triggered by an accident correct however large or small there's nothing in that program was ok so i'm looking for a rule of law which says in effect you have a random situation one way but but management can decide to do a programmed out of an accident that's there's no bride it has but at the point i'm making as i'm looking for that rule right no there's no the other way to abuse discretion is to make a rule and erroneous finding of fact and there are no iran a sack findings with regard to the accident no no you are and they're not so the question becomes the solution of the accident right as am i off base whether as a as counsel pointed out they have not a pill that particular issue but you're not off base there was nothing there the testimony at the hearing the area director admitted it had basically unfettered discretion under cross examination he admitted it i ended the transfer afunction of the cross examination when he made it there's nothing there the question on the ocean three hundreds is not that the ocean three hundred can provide reasonable suspicion of a violation but what they're trying to do is use these ocean three hundreds and little bits of here to do an entire facility on a very broad based issue so for example we had an eye injury said bloody me and it was a series of one hundred forty days we're not saying that osha couldn't come in and said on that one we want to investigate that discrete event but what it's because you could have you could argue they had reasonable suspicion of a violation for that event where they're trying to say is what you had that event and in twenty fifteen you had another eye injury which reflected it said irritation water those are the two injuries and twenty fifteen out of thousand one hundred fifty eight and what they said based on those tuvalu sions one looks like a trauma and the other one says water they want to do a full blown investigation of the entire facility for chemical and biological material and seems to be the logical solution of this kind of a problem at this they get to have a restricted search which is what ministry to plan for that we're only looking at what this court has says as a probable cause a reasonable suspicion of a violation which is specific evidence typically what's happens for example in sarasota co they had a complaint they went in investigate it that particular issue but osha asked i want to do the entire plant this court says no you've got reasonable suspicion of a specific violation we will give you cause and give you a warrant to go report for example one slips trips and follows happen in the break room but because it happened on the on the regulations that we do in the regulations very clearly say it will have to if you don't record because of the violations recorded because an injury happened even if there's minimal can connection to so that they have to be the court has to to assure those not on bridal discretion has to look at each one of these violations to see if it's specific and what they're trying to do is trying to do a pattern the magistrate judge and judge kelley both guy right say and what they're really trying to do is do a wall to wall expansion of the county in a few events and the logs and they said perhaps there are circumstances where they could do is showing like judge jordan said of i have a thousand sprains and eleven hundred people that would be something i think this court would say and i would say you're going to investigation of the entire planet that's not the facts and if you look at the specific events for the items in which they're trying to do all the walls they all become very small like the eye injuries of two thousand and fifteen they want to chemical and biological if you go back to twenty five months they had two cases pink at all says inject a vitus but they want to do it wall to wall based on those type of things and there's no indication at all but there was a violation and example we used to poke reprocessing plant kill plants there's wet floors but what floors can be slippery but that's a hazard which you have to do is abated you need to be doing either mats or  slip resistant boots which is always what we did was not a record but that if we did do that there would be suspicion will suspicion of a violation that's what's missing in this entire analysis and when you look at the details and look at the way the courts are doing they understood the standard reasonable suspicion of a violation they said it repeatedly they looked at the xhosa law they understood that osha was trying to do a wall to wall based upon these few injuries and both the magistrate judge and judge achilles noted that there was insufficient probable cause to justify a wall the sky full scope inspection that's what they said not that they can't do an inspection on an individual event but that's not what they've asked for that's not what they're doing get your honors let me start by being clear about what the district court allowed because judge to you suggested that it allowed a restricted search that search was restricted to four specific areas what we're looking for now is still a restricted search not a wall to wall we're asking for this to go back to the district court because we think there are sort of there were five areas i thought you said there was no difference in the scope of what you want  is only about getting back to the district court to have a warrant issued that's both with regard to the four hazards that the court acknowledged we have passed you have a warrant now five others we don't at the moment the court quassia the warrant i would stop you from coming back after you found some more information and getting at the extension of the warrant well this appeal the hope is that that's not a reasonable i think that that requires resources and additional time and osha has brought this appeal because you're already in the here with your obviously you're right you're in the you're in the work site and you have caps the men from that tells you that you need to go further all you have to do is walk up to the for the cart court to acknowledge that contrary to the statements of the district court and tomorrow jack it is not in numerical to his mission or as they call it that's at page fifteen of their brief and it is not a disservice true purpose of the logs as they suggest i think at page thirteen of their brief for osha to study these mandatory records of injuries and illnesses and to identify causes for concern that are reasonable still provided but you're still stuck or you're not looking for a program magic wall to wall search anymore as i read the brief you're still proceeding on all sixteen of the hazard categories no that's not correct your honor we're only proceeding with regard this appeal is addressing five hazard categories combined with the four that the court has already said we could have that would produce a warrant that addresses nine hazard area wh six which ones are you dropping so the only ones at issue in this appeal are biological and chemical hazards slip trip and fall ergonomic injuries and struck by hazards and those are the ones that are addressed in the testimony and in a system area director mccullough's declaration and these are the ones for which there was evidence of injuries that corresponded to the kinds of violations that osha sees regularly in poultry processing plants and therefore has cause for concern let me just take an example that opposing counsel offered what floors there's no question that you're going to see what floors in a poultry processing plant there's water being sprayed everywhere other chemicals being sprayed everywhere their position is well when you see that someone's fallen all you know is that they fought a foul maybe you know it was a wet floor but you certainly don't know that that was a violation well the problem is that if you're seeing people repeatedly falling on concrete fall floors in a poultry plant where they have a mandatory responsibility under osha's regulations and under their general duty to address that hazard to make sure that people are wearing the right footwear that spills are cleaned up quickly that drainage is happening that people are trained in how to move around the plant safely there's all these requirements that we can't know whether they're being violated and if the floor the fall was caused by those violations until we go in and take a look let's use that example how many incidents based on the three hundred logs were you talking about in twenty fifteen so for each of these there's different there's numbers different numbers for twenty the slip and fall there was actually in two thousand and sixteen even though we were only one month in there was already one injury a nice sprain in the awful to a sanitation worker now the awful is a part of the plant that's where they do rendering it's known to be greasy and wet so for osha to look at this and see somebody was placed in five days of restriction restricted work a transfer because of a nice brain it was a sanitation worker in a wet and greasy had if you let's say you had i'll give you the opposite of what i asked mr stein's if you have a plant that has ten thousand employees you know with eighteen million workable hours a year and you have one of those slip and fall incidents in the course of a year is that enough to get a warrant so that's not the case here and i know it's not it's a hypothetical but i'm asking you the question because i think human behavior is not perfect and the owner stakes are going to happen even if everyone takes all the precautions that are possible people are not perfect actors so in my hypothetical understanding that it is that siri far divorced from the facts of this case if you had that incident report saying that someone fell in the awful rendering section of a plant would you have a basis to seek a warrant for slipping trip in that place i think that context matters so if you have someone who's seriously hurt in an area of the plant that's known for being wedding greasy and they did something that you expect to see happen if a plant is an adequately addressing wet and greasy conditions which they're required to address then that very well may be cause to go in and take a look now here we have a lot more that one we have so where in a worker had first second and third degree burns under margin x theory that's only one accident there's no cause to go in and inspect why is it that we have probable cause to go in and take a look when you have somebody with first second and third degree burns in an patient hospitalization remember that this is a constitutional challenge the question across the board is what does the fourth amendment replying run and almost three minutes but i apologize i just want to make some logs essentially admit that these are going to make injuries because they make references to lifting and moving tubs and repetitive injury but throughout i mean the our point really is that we don't understand then i ask this court to