well here the last case trying him versus secretary of labor includes the court jason finkelstein law firm call shots p c on behalf of petitioner appellant triumph construction corp your honors i believe we're here today on two very limited discrete issues the first being whether the administrative law judge below to draw a particular inference correct which was it is not fine kirkyard which was a kin to a missing witness charge it's not directly messing with the start obviously there's no jury but do you you know all of the cases that you cite are criminal cases where there is an instruction to the jury and the question is whether that instruction undermines the defendant's right in a criminal case not to put on any evidence at all or the government's burden to prove beyond reasonable doubt the guilt of the defendant a witness who was available appeared at the hearing and was not called to testify and the whole problem there your honor is that unlike that situation the employer here did present mr for most of this the foreman who testified what would have been to put this testimony of what mr formosa testified or would have testified to had he been called so in order for trying to then present him for further testimony would have been to put it up and frankly probably a waste of the industry of our judges time  bit of a depth of greater than five feet you're going to but the whole oath from both from the person who was injured and from various measurements that were taken i mean basis upon which the district the trial judge could have or the hearing judge c this clearly it may not have been an issue for him but the fact that he went to the lengths said to case law about this situation and basically slammed triumph for not calling him i think indicates that this was a key issue like us to do here in this your honor and prefer that the than when the cave in occurred right when he talks about the mr luggage talks about the evidence of how deep was the place the trench where the in reoccurred there and then goes on to talk about the death of a different location in the mean who cares i mean it's interesting the mist of la judge made some findings about it but why does it matter where the injured worker was when he first got into the trench at an earlier point as opposed to where he was when he was working in the cave in occurred i think it just gets to the central issue as to whether a violation in this case occurred but if the evidence is ample and is entirely separate and is set forth in a separate portion of the opinion as to how deep the trench was at the point where the injury occurred why isn't this whole subject extraneous i don't think it's well it's again going back to my point that i just mentioned the fact that the ministry of law judge harp on this issue and let's not say heart he mentioned it he mentioned it in addition to other things right but if the other things are not only sufficient to prove the violation but are the only relevant things because they were about what the depth was at the place where the cave in and the injury occurred then i'm having trouble understanding why it isn't just an interesting observation maybe there was another violation about the depth of the trench at another point i take it it's undisputed there were other places in the trench that were not five feet deep because the pipe was still there but who cares well again i respectfully disagree with the position i believe that this was a kid a critical issue and the fact that the administrative law judge ok tell me why it's a critical issue because it was a factual finding that was made after and as potentially my client triumph was not able to contest that issue this whole idea was raised still trying to explain to me why it matters under the regulation how deep the trench was at a place other than where the injury will say well over the doesn't give anybody any rights it may not give any rights your honor but the fact that they go to the lengths of issuing these policies and without any sort of reasoned explanation under the case law to suggest why they're departing from those guidelines i think that's where the that there is a field operations manual in effect at that time the department of labor the secretary of labor did nothing to say why they departed from that there was a question to depart from the period when there were multiple violations multiple previous violations and that's the whole issue on our is the fact whether there were multiple repeat violations will but how would there be how could there be a policy of discretion to depart from a three year lookback policy when there are multiple violations if the multiple violations all have to be within the three year lookback period for that to trigger that discretion in order to make any sense one of the issues was during the process of a settlement two thousand and eleven and so if you wan technically that was an mission of some sort that was strictly entered into for the fact of moving on with the case without really any sort of admissions whatsoever so defined repeat violations based on that i think is frankly somewhat disingenuous from the please the court i'm scott her representing the secretary of labor the secretary carried his burden to prove the violation of the trenching regulation here the triumph committed no repeat violation substantial evidence supports that violation as noted by the court secretary met his burden at that point the burden shifted to triumph triumph was unable to introduce sufficient evidence to demonstrate the exception in the regulation applied and we believe we respectfully assert that this court should uphold the decision the single passing reference to mr foremost so in the lack of testimony there even if the judge in appropriately relied on that lack of testimony it was harmless error there was significant and substantial information  evidence in the record to support the violation those included uncontroverted measurements taken by the compliance officer with the assistance of triumph personnel using a standard measuring tape photos reflect these measurements in the record testimony from the injured employee saying that  the surface was seven inches above his height he was sixty five inches when standing on the floor that is again greater than five feet and testimony that in the removal installation process you need four feet of cover from the top of a twenty inch pipe which gives you sixty eight inches again deeper than five feet so the secretary believes and asserts that the day was appropriate and reasonably determining that there was a violation here as to the repeated violation as noted by the court the f o m section on time limitations for repeated violations actually indicates that the policy is a general policy and list some exceptions the f o m itself in a disclaimer at the very beginning of the f o m indicates that it creates no right substitute or procedural for individuals and its contents are not enforceable against the department of labor accordingly there were two prialt prior violations of this very regulation this trenching violation meaning that's three violations in six years the last of which resulted in serious injuries to a triumph employee who believes that this demonstrates this was appropriately characterized as a repeat violation we asked the court to affirm the elegies decision unless there are any questions from the court i will rest on the secretary's brief disclaimer that at the beginning of the film well that is true honor the the whole fact that the f l when in effect at that time still this provides for the three year lookback period and so whether discretion to move the area directed in that go into length as to the any sort of reasoned explanation that's consistent with the case law as to why they were departing from that guideline it essentially is asking why have guidelines if you're not going to follow if there were three violations in a six year period with that not be a good reason to go beyond the three year lookback period i would submit it's not your honor but i'm not there a director ok thank you thank you reserve decision that completes the calendar for today i'll ask the