your honor in a case like this visualizing what the washington entry procedure described on the record actually looks like ope is really essential to understanding why we believe that the agency problem little aide and this follows what the record says that pages ten twenty four to ten twenty seven this is how one of these is washed it comes in the empty the bottom is opened the top is open something that looks like a baby bottle washer that's twice as large as may goes inside it can fire liquid in all directions and it makes ice a strenuous brushing motion the first thing that happens is misstated as a rinse what it really is is this thing scrubbing while spewing out hot water at the end of the rinse if a caustic commercial on i'm not sure what function serves there is agreement i take it that fox violated all sorts of procedures right so what the normal procedures are doesn't really matter well your honor judge easterbrook i would say that the knew what the normal procedure we were dealing here with the question whether fox's knowledge is imputed to the employer or not whether fox departed from authorized procedures that's correct your honor but that depends on for say ability now virtually all the circuits that it but dress and said that the mere fact that fox is a supervisor is not enough to make that inference but if it say it has to be that specific what fox was going to do on a particular day what the agency said in this case as i read it's a pen and is that if you look at the reports that have been filed with dana container they showed repeated deviations from procedure about which dana's management did not and that was enough to impute what fox did to the company now that may be or that may be wrong but that seems to me the thing needs to be addressed well and your honor we'd say that is wrong because just picking a case it at random among those that involve that p p l the third circuit station the third circuit they are involved what was involved they are what is very similar to what's involved here a supervisor did something very unexpected and the question was whether the past inconsisten in the safety program could predict these violations but i think that the agency is i've read its opinion maybe you saying something along the following lines look you know one failure to fill out a permit properly maybe you don't draw any inference out from it ten failures but they find repeated failures that show a pattern that makes the possibility that somebody is once again going to violate protocols in a way of course it turned out badly for mr fox it was exactly the risk that these various safeguards are supposed to avoid and so our issue is whether the agency legitimately could draw that inference from this very substantial pattern of is not support the inference the pattern might well why not i mean you're saying i understand you don't want to but it's it's not clear to me why that's the conclusion we have to looking at these tank entry permit deficiencies on page eight and there are miscellaneous problems with quite a few of them if if your honor may put in for once these permits have had these issues pattern begins to develop then why is the agency not intitled to draw an inference from that pattern book cause in this instance your honor the inference wasn't reasonable quote bobby props to happened before yes it did it happened in two thousand to two people failed to complete a permit at all now none of these permits are and in fact required under alternate interim something l will alternate entries a different path it is a counter it is but two people did that they were disciplined they never did it again one person did it in two thousand and six he was disciplined he never did it  if you were to draw a pattern from the mere fact that there were some missing information off of some of the permits we would expect people to be diving in the tank since two thousand and three four five six seven eight and  it have to be that particular i mean you've got you've got these problems that are building up and of course mr fox is somebody himself who should have known better as everybody says he was a supervisor and he is in a hurry answer cold january night and he heard time and he just goes into the tank dirty but exact same thing you're on earth but in the in what p p l said it really has some good language it dresses exactly your concern and what it says is employer should be encouraged to develop work rules that will reasonably respond to their particular working conditions and i'm paraphrasing should be evaluated with that in mind and not with my view of little compliance with osha what that really means yes that's how it's awful to keep you site and people have consistently done that they have also consistently not filled in blanks and permits before during and after so one is is not does not support the other just merely being unable to fill out permits completely is one thing failing to fill them out at all failing to test it all is is unheard of and that's what bobby a fox is being cited for failing to fill in some of the blanks of a permit ok we've got a pattern of that the pattern supports that what the pattern doesn't support though is it doesn't support him that boom away from that wire at this distance the way osha says instead they followed work plans that where they wouldn't bring the boom truck in in time somebody did one day and got electrocuted the third circuit i think rightly killed look at what they were doing was what they were doing sunday was it in accordance with was it predictive of what this guy that's going to do in the answer is no it wasn't and that's what we have here now of course the agency says that even if we were to fall of the third circuit's rule there's sufficient foreseeability here and it points out that of the circuits to which you might have taken this  tition for review the third circuit is the most favorable to you so it seems that although they didn't think favorable enough that it would matter but it sounds to me like you're asking for more particular type of foreseeability than even the third circuit asked or know your honor and why we need to ask for it or the d c circuit is another matter altogether but your honor i would respectfully disagree because the evidence troublesome record there was testimony all over the block she had to make all kinds of credibility determinations she did but many of the with this is didn't speak english your own are going to to really see this so with this is look coached when they're not speaking in their can't you can infer you know if he had it if the question is did he fill out the sub carnap information can you infer that hit him not doing that was for sale sure that's supported can you infer he's not going to test or he won't fill out a permit on something people haven't done in the past in hundreds and hundreds of entries no that's not a reasonable inference from these facts and  substantial evidence this is not our job to sit down and read through all of this and come up with what we think should happen we just have to decide if the agency was within boundaries well and legal and legal boundaries whether it was legal and factual there has to be substantial evidence and i not understanding it there's much of a legal argument here i thought you were just talking about the evidence well i think i think there was in that the oversight you're so you couldn't place that should replace the burden on th but in the end you haven't it's does matter and in the end the most important thing to me is even if you do find it even if you do say that the agency correctly infer knowledge  serious knew they could do something and then chose not to do it so the counterfactual which has skewed it press is suppose people had taken this permit process seriously and they had still things out wouldn't that have created a culture of compliance at the place that the commission thinks is missing we're on or on the things the commission side if there was a commercial there was a culture of compliance everybody but bobbie fox did comply the commission didn't cite for incomplete permits it did cite i for entering a time nobody did that without testing or without completing a permit except or or at least we don't have recordings that other people done that but we also have one of the things that goes on when people depart very seriously from the rules if they don't then leave records of serious departures that's true your honor except  finding and we discussed that at pages four and five of our reply brief the solicitor made exactly that argument to trial and it was rejected the fact of the matter is clearly a l j said this if there wasn't evidence that she was able to credit yet there had been deviations which isn't quite the same thing well i think when the solicitor has the burden of proof that is the same thing and i see and now getting into my rebuttal time but i did want to make one bobby fox did not the eight witnesses testified they followed this training putting bobby pox except on this occasion there is discipline in the record for every single incident where somebody deviated from th if your honor affirms and infers knowledge i respectfully disagree i understand but willful and start defines the term is simply not in the picture and for the i'll answer any questions if you suppose just to create problems for dana fox had thrown one of his subordinates into the tank locked the cover and the subordinate had suffocated he had done this deliberately for the purpose of mean if there was evidence that this was a malicious act but but again i guess and the other point i want to make is that the inference is not well look the reason i asked this question is because i wanted to hypothesize an act that was seen fox interest to the detriment of his employer what actually happened in this case was an act that fox perceived to be in his interest to the detriment of his employer he was going to do something to make his job easier for him and he didn't really care that his employer and it turned out unexpressed surprisingly to him to be both to his detriment and the employer's detriment but why would osha then add a penalty to the detriment that the employer has already suffered from this self interested behavior by its supervisor but there's no evidence that he did this to he intended to act and to the detriment of the play he was working he was doing not you know the employer had rules which he was deliberately not following he was exposing it to all sorts of problems if what actually happened happened he was doing this for his own interest so he could get home early or do his job easier not follow the rules employers of course employees of course do this from time to time this is an extreme version of it but my question is what sense it makes to add penalties to the penalty that dana has suffered through the need to cover workers compensation claims and you can add this up why does the government want to add a penalty to something where the employee has injured  disagree with that this was a safety problem that did it develop and and and that he wasn't doing this to toot to the detriment of the employer he was doing this because well he knew he knew that he was doing it  was not like you know of any consequence he was doing it to help him self it was deceiving is employer and of course he ended up injuring himself and his employer and osha now wants to add injury to injury this looks like the kind of thing that would be self deterring on both sides with or without the department of labor piling up well that then suggests that there's less reason  penalty when there's an accident or an interview then when the when is not and that's why we want to be employed when forced to safety program so there is a cultural complains so employers don't make these decisions out so it really  other hand he you could say he's doing the employer's work which is to unclog the valve so that the tank can be cleaned but he's not doing it in a manner improved by the him approved by the employer so whether you want to look at that is doing the employer's business he's just trying to unclog the valve that's there's a way to do that in a way not to do that unfortunately he chooses the wrong way  i think that's where one has to just be precise about how the employer wants these things done so if we don't move to the situation every time an employee chooses a manner of doing work not approved by the employer is he still acting within the scope of his employment is he still under agency considerations doing things for which the employers answerable that's a question i would ask well and that and i think s thinks it's coaches on top of a lot of testimony but she does what she needs to do she draws credibility determinations and decide if it happened here but i just meant to say that she just found it didn't permits are designed to forestall was going to happen sooner or later and maybe they were lucky enough finally happened in the january incident that we're talking about because one of their arguments is that you're you leveraging too much from the permit violations over to what happened they would say in a very unexpected way and on january twenty eighth two thousand and nine well that's the argument but i don't think that these violations all related to what happened i january twentieth because it's the same has exposure to atmosphere passage in when and during the confined space then you talk a little bit and i certainly will invite mr coleman to say meet that burden they had to prove that they demonstrated before they implemented alternate entry procedures that ventilation alone was sufficient to maintain the tank safe and i thought there was no way that you could say in unclean permit lists and trees or that there were other permits the solicitors the solicitor simply did not produce evidence and now i ask this court to assume that this is something more than what your honor said was just  this isn't just paperwork violations out respectfully yes it is oh and it is for two reasons even though bobbie fox we can just follow it bobbie fox did under alternate entry that night because he didn't do what alternate entry requires if you're going to in far intend for more amounts to alternate entry documents you have to look at them as alternate entry documents and not as permits and alternate intr documents require what's the name of the tank where is the test results in a certified signature that's it none of the deficiencies they talk so much of found or required by alternat maybe we swung and missed but surely we can't get some kind of inference definitely of a willful arse i contend that of knowledge of from then so it's the solicitors birth one other thing he said that if it had been true it would have been shocking is that people go in all the time and these permits show there was no post entry in trees well there's a reason for that and that's what i wanted to i think i wanted to mission at the outset of the how the entry procedure works if i'm going in the tent and i'm hooked all like bobby fox was it and i've tested and i've completed my document there is constant ventilation going so first of all the atmosphere is not going to change but we don't take we don't presume that page sixty ninety six of the record says a monitor comes after us always s said there was no post entry monitoring that's false that's not what the record shows there is post entry monitoring and that monitor is going to chirp be alarmed whatever if something is outside moshe's parameters it was tested in when the person first went in but after the persons in the monitor goes after them so it's just not correct to say you know once an hour thing i'm trying to remember that it's not all that that's clear front and it's it may be confusing once an hour might be testing it's what intense and then you're supposed to write down the results which you can see wasn't done but monitoring is something different monitoring the monitors in there with you all the time and it's going to alarm you're not going to have an intruder put in but it's going to alarm if it's out of s funks acted in violation of rules he noted he acted in violation of training he knew maybe it's not the same as thrown his coworker in the tank but one thing is for are subtle dana took the position it did in accordance with stark it knew it was serious but it took steps to prevent what bobby clarke stead and evidence to