occupational safety and health review commission arbitrarily and capriciously decided on the repeated characterization question in abused his discretion so the court is here to review that determination on the repeated characterization and must decide whether or not  humans are correct and we do that outside of an adversary system and i'm not the one case that i have from this court where this happened previously was a case called russell elma for a builder's from two thousand and two  and in that case the employer sent in a letter at the onset of the proceedings saying you know we're not going to subpoena going to cost us too much money and the court considered the secretary's petition and made a decision on the merits because the employers interest remains in this case whether or not it chooses to participate and defend its interests i'm just i'm worried kind of about i'm worried because because there's no other side to s is still going on my understanding is yes it is the money in the bankruptcy the distribution process is ongoing the winding down that's going on that's the winding down that's going on or it's of actively defunct and they're just getting money out yes it's been sold as an ongoing concern as part of the chapter eleven dollars process and the disbursements are still ongoing if you are prevail on this if you would file  the bankruptcy case if you haven't already i'm not sure if the secretary intends to participate in that bankruptcy proceeding or if it intends to attempt to collect the ultimate judgment outside of bankruptcy  get it right well that may be true this is not moot because we explain this in our letter brief from sub september when the secretary certainly the secretary is interest is that the a penalty be assessed whenever an employer as angelica has commits a repeated serious and repeated violation because it's required to honor the object and the very purpose of the penalty scheme the purpose  of penalties is to punish not just the employer that committed the violations but also to create this deterrent effect which is what makes the effective can go out and penalize every employer that commits violations so it needs to send a message with every penalty that if they do commit a serious violation they are going to receive a penalty regardless of any actions they may take after committing that violation penalties are designed to address the harm that seems like this is an advisory opinion you're asking us to spend our time issuing when it is of no effect and what we don't like to do i think there is a lot of effect here a the effect is that does exist in bankruptcy and is being wound down so there is someone with an interest whether or not they've chosen to participate is their own decision and the secretary put in a claim the secretary has not as of this date to my knowledge filed a proof of claim in the bankruptcy proceedings  that horse out of the bar well it means that the secretary cannot participate as a creditor in the distribution process it doesn't mean that the interest in that claim has been expunged or removed the interest that it is able to attempt to collect it however it may be able to do so under the law and if i may point out the nd and perhaps the more important not having made a claim and claims having been discharged by the process it was not to participate due the secretary might even be held in contempt right no it's not at all it's your honor i go try to collect a claim that you didn't participate in a bankruptcy process when the claim existed you know i can't i can't speak to that i'm not sure i don't think so but i know that the case although we cited in the brief one was this grunberg decision from the th circuit and it considered a case where a proof of claim was not filed timely before the bar date in the bankruptcy proceeding and it stated that well that doesn't discharge the claim it just means that the claim will not be processed through the distribution process in the bankruptcy court and that the holder of that claim can still attempt to collect on it outside of the bankruptcy process  government function because of how the act works read it remains irrespective of what the employer does after the violation occurred if you look at the jacksonville shipyards case from the th circuit from one thousand nine hundred and seven they discuss why full stop and penalty cannot be mooted by employers post violation conduct because it would completely undercut the penalty system that congress put in place when it created the act if it was able to do that employers could decide well you know if osha shows up and gives us a one million dollars fine for egregious violations well just fold this business and start a new one you know we don't need to comply with the shacked up front because we know if if the government shows up and puts a big fine on us we can the other side so we have two sides before my my understanding anecdotally from colleagues is that that has happened in some cases in the past and in others it has not it's actually i have several colleagues who have done cases and have argued alone because the employer forty years and has never before considered the fact that the commission relied upon and it's repeated characterization test in fact the commission's own precedent precludes reliance on the factors that the majority looked at here and it's  taken its applying the potlatch tast to the facts in front of it but in fact relying on factors that potlatch said specifically are relevant and threw out a test under although claiming to apply it and completely reworked it such that there really is no understanding about when a repeated characterization should apply thank you in order to get the relief we have to vacate and reverse the the the relief that we're seeking is that you should reverse the repeated characterization determination it was incorrect it was decided based on irrelevant factors it was a deviation from precedent we we think that you know ordinarily is the case when an agency steps away from its precedent is to for the court to make its order and then simply remain and it for reconsideration in compliance with that order in this case the facts itself that relate to the hazards and conditions involved in  are undisputed there is no dispute about what the hazards were and which workplace conditions gave rise to this hazard so this court can use its fertility exception to say these violations are repeated as a matter of law and then rem not be reserving any time today very much