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[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT ________________________
No. 16-17745 ________________________
D.C. Docket No. 2:16-cv-00192-WCO
UNITED STATES OF AMERICA,
Plaintiff-Appellant,
versus
MAR-JAC POULTRY, INC.,
Defendant-Appellee.
_______________________
Appeal from the United States District Court for the Northern District of Georgia _______________________
(October 9, 2018)
Before TJOFLAT and JORDAN, Circuit Judges, and STEELE, * District Judge.
* Honorable John E. Steele, United States District Judge for the Middle District of Florida, sitting by designation. Case: 16-17745 Date Filed: 10/09/2018 Page: 2 of 19
STEELE, District Judge:
The district court quashed a judicially-issued inspection warrant for a
poultry processing facility, but stated that the United States could submit a new
warrant application with a reduced scope. Rather than present such a new
application, the United States chose to forego inspection but appeal the district
court’s decision. After review of the record, and with the benefit of oral argument,
the court affirms the district court’s order quashing the inspection warrant.
I.
On February 3, 2016, an employee of Mar-Jac Poultry, Inc. (“Mar-Jac”), a
poultry processing facility in Georgia, was injured at work while attempting to
repair an electrical panel using a non-insulated screwdriver. An arc flash resulted
in severe burns to the employee’s hand and face, and required the employee’s
hospitalization.
On February 4, 2016, Mar-Jac reported the electrical accident to the United
States Department of Labor’s Occupational Safety and Health Administration
(“OSHA”), as it was required to do by federal regulation. In response, on
February 8, 2016, OSHA sent an inspection team to Mar-Jac’s facility to make an
unprogrammed inspection, i.e., an inspection based upon information received
concerning the specific facility. The OSHA investigators requested to inspect not
only those hazards involved in the electrical accident, but also to conduct a
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comprehensive inspection of the entire facility for additional hazards. Mar-Jac
consented to inspection of the electrical accident site and the tools involved, but
refused to permit inspection of any additional areas or hazards. OSHA’s physical
inspection of the poultry facility, as limited by Mar-Jac, found three potential
violations of OSHA standards concerning (1) electrical safety, (2) personal
protective equipment, and (3) the guarding of machines and controlling of
hazardous energy.
In addition to allowing the limited physical inspection, Mar-Jac provided
OSHA with a copy of a portion of an evaluation performed by an outside
consultant which criticized the company’s lack of an appropriate program to abate
risks to employees from electrical shocks. 1 Mar-Jac also provided OSHA with the
company’s 2013-2015 work-related serious illness and injury logs (“OSHA 300
logs”) mandated by federal regulation. OSHA ultimately concluded that the
OSHA 300 logs suggested violations in six areas common to poultry processing:
(1) recordkeeping issues, (2) ergonomic hazards, (3) biological hazards, (4)
chemical hazards, (5) struck-by hazards, and (6) slip, trip, and fall hazards.
In addition to having this information specific to the Mar-Jac facility, OSHA
had created “emphasis programs” in industries that pose a high risk to workers.
1 Mar-Jac did not provide OSHA with a full copy of the report, but only provided the portions regarding the lack of an electrical hazard program.
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For fiscal year 2016, the Regional Emphasis Program for Poultry Processing
Facilities for Region IV (“Poultry REP”) identified sixteen categories of hazards
which were of particular concern in poultry processing facilities in Georgia and
seven neighboring states. The Poultry REP also provided neutral criterion which
could lead to a randomly generated “programmed” inspection of a particular
facility.
On March 31, 2016, OSHA submitted an application to a federal magistrate
judge seeking a judicial warrant to inspect the Mar-Jac facility with respect to the
three hazards directly implicated by the accident, the six hazards implicated by the
OSHA 300 logs, and the remaining hazards that the Poultry REP identified as
being of particular concern within the poultry processing industry. The application
sought this inspection based on two independent grounds. First, the application
asserted that the investigators had personally observed hazards relating to the
electrical incident, and that an inspection of the OSHA 300 logs revealed six
hazards common to poultry processing facilities. Based on this specific evidence,
OSHA asserted that probable cause existed to conduct a comprehensive search of
the entire facility for these hazards and the remaining hazards identified in the
Poultry REP. Second, the application asserted in the alternative that probable
cause existed to support a programmed inspection pursuant to neutral criteria
contained in OSHA’s Poultry REP.
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On April 1, 2016, the magistrate judge granted the application in its entirety
and issued a judicial inspection warrant as requested by OSHA.
Mar-Jac promptly filed an emergency motion to quash the inspection
warrant. The issuing magistrate judge held a hearing on the motion to quash, took
testimony, and ultimately issued a Report and Recommendation to the district
court recommending that Mar-Jac’s motion to quash be granted. During the
evidentiary hearing, evidence in addition to that which was initially included with
the warrant application was presented and considered by the magistrate judge.
On November 2, 2016, over OSHA’s objections, the district judge adopted
the magistrate judge’s Report and Recommendation and quashed the inspection
warrant. In a written opinion, the district court found, as had the magistrate judge,
that OSHA had demonstrated administrative probable cause for issuance of a
warrant to inspect for (1) electrical dangers, (2) the availability and use of personal
protective equipment, (3) the guarding of machines and the controlling hazardous
energy, and (4) recordkeeping violations. The district court also found, as had the
magistrate judge, a lack of reasonable suspicion for the other five violations which
OSHA asserted were supported by the OSHA 300 logs and the remaining hazards
identified in the Poultry REP. The district court further found that OSHA had
failed to establish that Mar-Jac was selected for inspection pursuant to an
application of neutral criteria. The district court stated that OSHA could seek a
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new inspection warrant consistent with these parameters. The district court, like
the magistrate judge, considered the additional evidence presented at the
evidentiary hearing in adopting the Report and Recommendation.
OSHA never sought a new inspection warrant, but rather filed this appeal
pursuant to 29 U.S.C. § 1291.
II.
On appeal, the United States asserts that the district court improperly
quashed the inspection warrant with respect to five hazards: (1) ergonomic
hazards; (2) biological hazards; (3) chemical hazards; (4) struck-by hazards; and
(5) slip, trip, and fall hazards. 2 The United States argues that OSHA had
demonstrated “ample” reasonable suspicion that an inspection with regard to these
five hazards would reveal violations of the Act, and asserts that the district court
erred as follows: (1) While the district court acknowledged that OSHA was
required to show reasonable suspicion of violations, it actually applied a far higher
standard by requiring OSHA to show that employees had been injured as the result
of a violation of an OSHA standard; (2) The district court misunderstood the terms
“hazard” and “violation” and their relation to one another; and (3) The district
2 The United States does not appeal the district court’s determination that OSHA did not have sufficient grounds to obtain a warrant as to the other hazards identified in the Poultry REP that were not related to the electrical incident nor supported by the OSHA 300 logs, or the district court’s rejection of the basis for a programmed inspection. 6 Case: 16-17745 Date Filed: 10/09/2018 Page: 7 of 19
court mistakenly suggested that OSHA relied on the mere presence of a reported
injury to call for a full scale investigation of the hazard related to the injury.
A. Standard of Review
The Supreme Court has “repeatedly said that after-the-fact scrutiny by courts
of the sufficiency of an affidavit should not take the form of de novo review. A
magistrate’s determination of probable cause should be paid great deference by
reviewing courts.” Illinois v. Gates, 462 U.S. 213, 236 (1983) (citation omitted).
See also West Point-Pepperell, Inc. v. Donovan, 689 F.2d 950, 959 (11th Cir.
1982) (“A magistrate's probable cause determination is entitled great deference,
and is conclusive in the absence of arbitrariness.” (internal citation omitted)).
This remains the standard even though a de novo standard is applied to review
determinations of reasonable suspicion and probable cause when no warrant was
involved. Ornelas v. United States, 517 U.S. 690, 698-99 (1996).3
Matters of law are reviewed de novo, and the Court applies a de novo
standard in determining whether the lower court applied the correct legal standard.
United States v. Lee, 208 F.3d 1306, 1307 (11th Cir. 2000).
3 The Court notes that published decisions from this Circuit have held that these Supreme Court cases require a de novo standard even when a warrant was involved. E.g., United States v. Albury, 782 F.3d 1285, 1292 (11th Cir. 2015); United States v. Bradley, 644 F.3d 1213, 1263 (11th Cir. 2011); United States v. Butler, 102 F.3d 1191, 1198 (11th Cir. 1997). 7 Case: 16-17745 Date Filed: 10/09/2018 Page: 8 of 19
B. The Occupational Safety and Health Act of 1970
The Occupational Safety and Health Act of 1970, 29 U.S.C. § 651 et seq.
(the “Act”) , “delegates broad authority to the Secretary [of Labor] to promulgate
different kinds of standards” for the purpose of “ensuring safe and healthful
working conditions for every working man and woman in the Nation.” Indus.
Union Dep't, AFL–CIO v. Am. Petroleum Inst., 448 U.S. 607, 611 (1980). To
enforce these standards, the Act, among other things, authorizes two types of
inspections by the Secretary, acting through OSHA. A programmed inspection
may be conducted in accordance with a general administrative plan based on
neutral criteria, 29 U.S.C. § 657(a) (sometimes referred to as section 8(a) of the
Act), or an unprogrammed inspection may be conducted based on specific
evidence of an existing violation, 29 U.S.C. § 657(f) (sometimes referred to as
section 8(f) of the Act). See Donovan v. Sarasota Concrete Co., 693 F.2d 1061,
1068 (11th Cir. 1982); West Point-Pepperell, Inc., 689 F.2d at 956-57.
Although the Act does not explicitly require a judicial warrant to conduct
either type of inspection, it is clear after Marshall v. Barlow’s, Inc., 436 U.S. 307
(1978) that, unless the employer consents, a judicial warrant is required by the
Fourth Amendment of the United States Constitution. Donovan, 693 F.2d at
1068; West Point-Pepperell, Inc., 689 F.2d at 956-57. While probable cause is
necessary to obtain an inspection warrant, it is not probable cause in the criminal
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sense. Barlow’s, Inc., 436 U.S. at 320 (“Probable cause in the criminal law sense
is not required.”). Rather, the required probable cause for an inspection warrant
may consist of either (1) a showing of specific evidence of an existing violation, or
(2) a showing that “reasonable legislative or administrative standards for
conducting an . . . inspection are satisfied with respect to a particular
[establishment].” Id. at 320–21 (alterations in original) (quoting Camara v. Mun.
Court, 387 U.S. 523, 538 (1967)). Because the United States does not appeal the
district court’s rejection of its argument concerning a programmed inspection
based upon reasonable administrative standards pursuant to the Poultry REP, the
Court focuses only on probable cause based upon specific evidence.
“[A] more individualized inquiry is required” when examining a warrant for
an unprogrammed inspection because of the “increased danger of abuse of
discretion and intrusiveness” due to the “lack [of] administrative and legislative
guidelines that ensure that the target of the search was not chosen for the purpose
of harassment.” Donovan, 693 F.2d at 1068. While probable cause in the
criminal law sense is not required, “[r]easonableness remains the ultimate standard
in evaluating the propriety of an administrative search.” Id. at 1069-70; West
Point-Pepperell, Inc., 689 F.2d at 957.
Hence, the evidence of a specific violation required to establish administrative probable cause, while less than that needed to show a probability of a violation, must at least show that the proposed inspection is based upon a reasonable belief that a violation has been 9 Case: 16-17745 Date Filed: 10/09/2018 Page: 10 of 19
or is being committed and not upon a desire to harass the target of the inspection. This requirement is met by a showing of specific evidence sufficient to support a reasonable suspicion of a violation.
West Point-Pepperell, Inc., 689 F.2d at 958.
The scope of such an unprogrammed inspection must bear an appropriate
relationship to the violation alleged by the evidence. Donovan, 693 F.2d at 1068–
69. “[W]hen nothing more is offered than a specific complaint relating to a
localized condition, probable cause exists for a search to determine only whether
the complaint is valid.” Id. A full scope inspection of a facility may nonetheless
be authorized in some circumstances. For example, Donovan stated “it is
conceivable that a specific violation plus a past pattern of violations may be
probable cause for a full scope inspection. In addition, a specific complaint may
allege a violation which permeates the workplace so that a full scope inspection is
reasonably related to the complaint.” Id. at 1068–69.
C. Alleged District Court Errors
(1) Utilization of Improper Probable Cause Standard
The United States asserts that the district court, while citing to the correct
reasonable suspicion standard, actually applied a more stringent, and improper,
standard by requiring OSHA to affirmatively show that the injuries occurred as a
result of a violation. To support this conclusion, the United States cites the
following two sentences from the district court’s written opinion: “The fact that an
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injury or illness is recordable [in the OSHA 300 logs] does not show that it was the
result of a violation of an OSHA standard,” and that “the magistrate judge
correctly concluded ‘the mere presence of a reported injury on the OSHA 300 form
[does not] support a full scale investigation of the hazard related to that injury.’”
After de novo review, we conclude that the district court utilized the correct
legal standard. The district court clearly recognized the Eleventh Circuit’s
adoption of the reasonable suspicion standard in West Point-Pepperell, Inc., 689
F.2d at 958, and applied that standard to the facts alleged in the warrant
application. The district court did not impose a more stringent standard, but simply
found that the facts set forth by OSHA did not satisfy the reasonable suspicion
standard. The two sentences cited by the United States do not demonstrate the
contrary. The district court did not apply an incorrect legal standard in its review
of the sufficiency of the application for the inspection warrant.
(2) Distinction Between “Hazard” and “Violation”
The United States also asserts that the district court confused the terms
“hazard” and “violation,” and mistakenly believed that evidence of a hazard is
wholly distinct from evidence of a violation. The United States argues that hazards
can be violations, and points to the injuries reported in the OSHA 300 logs for the
proposition that because there was an injury, there must have been a hazard, and
because there was a hazard, there is likely a violation to be found.
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The existence of a “hazard” does not necessarily establish the existence of a
“violation,” and it is a “violation” which must be established by reasonable
suspicion in the application. It is certainly true that each covered employer “shall
comply with occupational safety and health standards promulgated under this
chapter.” 29 U.S.C. § 654(a)(2). It is simply not the case that the existence of a
hazard necessarily establishes a violation, and the government’s citation to the
general duty clause is not to the contrary.
To implement the purpose of OSHA, “Congress imposed dual obligations on
employers,” “a ‘general duty’ to free the workplace of all recognized hazards” and
“a ‘special duty’ to comply with all mandatory health and safety standards.”
ComTran Grp., Inc. v. U.S. Dept. of Labor, 722 F.3d 1304, 1307 (11th Cir. 2013).
A covered employer “commits a general duty clause violation when he fails to
‘furnish to each of his employees employment and a place of employment which
are free from recognized hazards that are causing or are likely to cause death or
serious physical harm to his employees.’” Pepper Contracting Servs. v.
Occupational Safety & Health Admin., 657 F. App’x 844, 847 (11th Cir. 2016)
(quoting 29 U.S.C. § 654(a)(1)). To prove a violation of a general duty clause,
“the Secretary must establish that ‘(1) the employer failed to render its work place
free of a hazard; (2) the hazard was recognized; . . . (3) the hazard caused or was
likely to cause death or serious physical harm’ and ‘(4) the hazard [was]
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preventable.’” Id. at 847–48 (omission in original) (citation omitted). On the
other hand, a violation of an OSHA standard is established by showing “(1) that
the regulation applied; (2) that it was violated; (3) that an employee was exposed to
the hazard that was created; and importantly, (4) that the employer ‘knowingly
disregarded’ the Act's requirements.” ComTran Grp., Inc., 722 F.3d at 1307.
Therefore, under either the general or special duty clause, a hazard does not itself
establish a violation. The district court did not err in distinguishing between
hazards and violations.
(3) Application’s Evidence of Reasonable Suspicion
It is undisputed that there is no relation between the electrical accident and
the five hazards at issue. The United States asserts, however, that the application
for the inspection warrant provided “ample evidence” of reasonable suspicion of
violations as to the five hazards at issue. The United States views the OSHA 300
logs and the analysis of the logs by OSHA officials as being of particular
importance with regard to these five hazards.
The OSHA 300 logs contain a listing of work-related injuries and illnesses
that employers are required to record and maintain. 29 C.F.R. §§ 1904.4, 1904.7.
The logs contain the employee’s name, job title, date of injury or illness, location
where the event occurred, description of the injury or illness, classification of the
case, number of days missed, and whether it was an injury or other type of illness.
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A “one or two line description for each recordable injury or illness” is to be
included on the OSHA 300 logs. 29 C.F.R. § 1904.29. Many of the descriptions
leave the reader knowing little, if anything, about the actual cause of the injury or
illness. The descriptions relied on by OSHA are those such as:
“Sprain/Back/Concrete Steps” and “irritation/left eye/water.”
These logs, as their title suggests, record work-related injuries and illnesses,
not OSHA violations. The Regulations provide that “[r]ecording or reporting a
work-related injury, illness, or fatality does not mean that the employer or
employee was at fault, that an OSHA rule has been violated, or that the employee
is eligible for workers’ compensation or other benefits.” 29 C.F.R. § 1904.0. The
existence of injuries thus does not necessarily mean that the injuries were caused
by OSHA violations, or justify the issuance of an administrative warrant for
evidence of OSHA violations. The Court notes, however, that although OSHA 300
logs do not document the cause of the injury or illness, they can be relevant to
whether hazards exist.
The content of the OSHA 300 logs in this case fails to create reasonable
suspicion either alone or in combination with the other information in the
application. As to ergonomic hazards, the United States asserts that “multiple
reports of work-related musculoskeletal illnesses, such as tendonitis and
tendomyopathy” are recorded in the OSHA 300 logs, providing reasonable
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suspicion that Mar-Jac lacks an appropriate ergonomics program. A review of the
OSHA 300 logs shows that the twenty-five incidents relied on to support a warrant
to inspect as to an ergonomics plan have vague descriptions and fail to show any
pattern as to the location of the injury (elbow, hand, wrist, back, shoulder, thigh,
arm, knee, etc.) or any pattern as to the department where the injuries occurred
(rehang, debone, live dock, shipping, evisceration, cone line, stack off, sizing, etc.).
With a workforce of 1,112 employees within the facility, the OSHA 300 logs fail
to provide reasonable suspicion that ergonomics violations are likely to be found.
As to biological and chemical hazards, the United States asserts that
“multiple reports of eye infections and eye injuries among workers in the areas
where workers encounter live chickens and sanitation chemicals, respectively,
provid[e] cause for reasonable suspicion that Mar-Jac is not taking adequate steps
to abate biological and chemical hazards.” The OSHA 300 logs from 2015 contain
ten reports of eye injuries, the 2014 logs contain two reports of eye injuries, and
the 2013 logs contain zero reports of eye injuries. Therefore, the United States
asserts that twelve eye injuries over the course of three years among 1,112
employees provides reasonable suspicion that biological and chemical violations
may be found. The Court disagrees, and holds that these logs on their own fail to
establish reasonable suspicion of biological and chemical violations.
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As to struck-by hazards, the United States asserts that “multiple reports of
employees being injured by equipment used to transport products and material”
provide cause for reasonable suspicion that material power industrial truck hazards
will be found. The sole evidence relied upon by the United States is six struck-by
injuries recorded in the 2015 OSHA 300 logs. The Court finds that six recorded
incidents over a year at a facility with over a thousand employees do not provide
reasonable suspicion that struck-by violations are likely to be found at the facility.
Lastly, as to slip, trip, and fall hazards, the United States asserts that
“multiple reports of workers suffering slip-related injuries[] provid[e] cause for
reasonable suspicion that Mar-Jac has failed to adequately prevent common slip,
trip, and fall hazards.” As support, the United States points to seven slip, trip, and
fall injuries recorded in the 2015 OSHA 300 logs. Once again, the Court finds that
seven slip, trip, and/or fall recordings in the 2015 OSHA logs at a poultry
processing facility with over one thousand employees do not provide reasonable
suspicion to support the issuance of a warrant to search for slip, trip, or fall
violations.
In its affidavit to the magistrate judge, OSHA also attached citations and a
settlement agreement entered into between Mar-Jac and OSHA in 2009. A review
of the previous citations from more than seven years before reveals that no
citations were issued for violations relating to ergonomic, biological, struck-by, or
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slip, trip, and fall hazards. Three of the citations seemingly relate to chemical
hazards—one regarding the rust that occurred from ammonia corrosion; one for
failure to wear safety goggles; and one for failure to have facilities for drenching
and flushing of the eyes. Even when considered in conjunction with the ten eye
injury reports in the 2015 OSHA 300 logs and the two eye injury reports in the
2014 OSHA 300 logs, the Court does not find that reasonable suspicion of likely
chemical violations sufficient to support issuance of a warrant to inspect for
chemical violations.
As the magistrate judge and the district judge both noted, OSHA may file a
new application for a warrant to inspect as to these potential violations, and the
judicial officer will determine anew whether OSHA has established the required
administrative probable cause. 4
For the reasons stated, the judgment of the district court is affirmed.
4 Affidavits in support of search warrants can become stale under certain circumstances. United States v. Domme, 753 F.2d 950, 953 (1985). 17 Case: 16-17745 Date Filed: 10/09/2018 Page: 18 of 19
JORDAN, Circuit Judge, concurring in the judgment.
I agree that we should affirm the district court’s order quashing the
inspection warrant as to the five hazards that are the subject of OSHA’s appeal.
But I think the case is a close one, and write to explain why.
The circumstances presented are unusual. After Mar-Jac moved to quash the
warrant, the magistrate judge held an evidentiary hearing. In their orders, both the
magistrate judge and the district court considered the additional evidence presented
by OSHA at the hearing. See D.E. 14 at 6-7; D.E. 19 at 4-8, 12-13. On appeal
OSHA has argued the issue of administrative probable cause under Marshall v.
Barlow’s, Inc., 436 U.S. 307, 320-21 (1978), and its progeny by relying in part on
the evidence presented at the hearing, and Mar-Jac has not objected to that mode of
analysis (though it has focused its own argument on the OSHA 300 logs). See Br.
for Appellant at 19; Br. for Appellee at 8-22. I therefore assume, without
deciding, that OSHA could supplement its application and affidavit for a warrant
with the subsequent testimony and evidence presented at the hearing.
OSHA 300 logs do not document the cause of an injury or illness, see 29
C.F.R. § 1904.29, but they are relevant to whether hazards exist. And hazards
matter, because the question of administrative probable cause is not whether there
is evidence of actual violations, but rather whether there is “specific evidence
sufficient to support a reasonable suspicion of a violation.” West Point Pepperell,
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Inc. v. Donovan, 689 F.2d 950, 958 (11th Cir. 1982). The evidence presented at the
hearing, which included some comparative analysis of the information in the
OSHA logs (e.g., how the number of certain injuries at Mar-Jac compares to
industry averages), makes the issue of administrative probable cause somewhat
more difficult. The more that a company’s injuries exceed the industry average, it
seems to me, the more likely that the OSHA logs can provide a reasonable
suspicion of existing violations.
But we are not exercising plenary review, and the applicable standard of
review here drives the result. A lower court’s determination of probable cause
(and also, I think, its determination of lack of probable cause) in a warrant scenario
“should be paid great deference by reviewing courts.” Illinois v. Gates, 462 U.S.
213, 236 (1983). In the administrative context, we have explained that a
“magistrate’s probable cause determination is entitled to great deference, and is
conclusive in the absence of arbitrariness.” West Point Pepperell, 689 F.2d at 959
(citations omitted). Under this deferential standard, OSHA cannot obtain reversal.