[00:00:00] Speaker 03:
2015-5066 King v. US.

[00:00:01] Speaker 03:
Mr. Fay, please proceed.

[00:00:05] Speaker 03:
Good morning.

[00:00:08] Speaker 01:
May I please the court?

[00:00:10] Speaker 01:
I would like to reserve three minutes for the rebuttal.

[00:00:13] Speaker 01:
This is an unusual case regarding non-payment of overtime under the Fair Labor Standards Act.

[00:00:19] Speaker 01:
Hundreds of first-line supervisory border patrol agents working as instructors at the border patrol academies received FLSA overtime pay until

[00:00:30] Speaker 01:
2010, then received it again beginning in January 2012.

[00:00:34] Speaker 01:
And this case is about their claim for back pay and associated relief in the interim period.

[00:00:39] Speaker 01:
The only thing that changed in the interim period was their job grade from 12 to 13.

[00:00:46] Speaker 01:
None of the duties of the position changed.

[00:00:48] Speaker 01:
I'm going to direct my comments today to our two main points.

[00:00:51] Speaker 01:
First, that the court erred in granting summary judgment to the government on the basis of the job description alone.

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And second, that the court should have granted summary judgments

[00:01:00] Speaker 01:
to the plaintiffs on the basis of undisputed testimony.

[00:01:04] Speaker 04:
Is it your contention that the job descriptions are, in fact, inaccurate?

[00:01:10] Speaker 01:
Yes.

[00:01:13] Speaker 01:
That's a complicated question.

[00:01:14] Speaker 01:
The job description at the beginning talks about the general subject matter of instruction at the academy, identifying firearms and driving and Spanish, et cetera.

[00:01:26] Speaker 01:
But what is inaccurate for these people are those percentages.

[00:01:29] Speaker 01:
Yes, we do contend that.

[00:01:30] Speaker 04:
And what evidence is there that you put in or otherwise in the record indicating that information in the position descriptions is inaccurate?

[00:01:43] Speaker 01:
Most of it's indirect in the sense that we relied upon the testimony of the subject matter experts at the agency who testified that they examined the actual duties, that they applied the FLSA tests, and found that these were not exempt duties.

[00:02:01] Speaker 04:
The specific testimony that I found, at least from Ms.

[00:02:05] Speaker 04:
Copeland, seemed to suggest that she was relying on the position descriptions.

[00:02:12] Speaker 04:
Now, there are a couple of places where she alludes to duties, but I didn't see those references as applying to this particular set of employees.

[00:02:23] Speaker 04:
Rather, she was talking about the process of the 5,800 and some odd people that were being

[00:02:30] Speaker 04:
where their position descriptions were being reviewed.

[00:02:33] Speaker 04:
But this position description for these employees was not changed.

[00:02:38] Speaker 04:
And I thought that the gist of her testimony was that she relied on position description.

[00:02:44] Speaker 04:
Can you point me to anything in her testimony in which she says, here's what we found when we looked at their actual work that was different from the position description?

[00:02:57] Speaker 01:
She didn't say that explicitly.

[00:02:59] Speaker 01:
But I disagree with Your Honor in the following sense.

[00:03:03] Speaker 01:
At Joint Appendix 142, where she talks about the FLSA tests, and at 146, she is talking both about the general classification system and also about these specific individuals.

[00:03:17] Speaker 01:
And especially at 146, Your Honor, there was a reference.

[00:03:25] Speaker 01:
She said,

[00:03:26] Speaker 01:
We made sure, this is her deposition page 58, we had a discussion with Clark Messer, he's the number two person at the academy, and his staff about the nature of the work, how the work was being assigned, looking at the job descriptions themselves, the things that we would do to make a Fair Labor Standards Act FLSA determination.

[00:03:45] Speaker 01:
So she's talking about these people specifically.

[00:03:48] Speaker 01:
And then back on page 142, there's a discussion about what do you do when you go through the CFR

[00:03:56] Speaker 01:
Because Judge Firestone said that she didn't discuss the professional exemption.

[00:04:01] Speaker 01:
And in page 43 of her deposition, she was asked, what were the criteria under the FLSA you looked at?

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And she said, whether they meet the executive, the administrative, the profession.

[00:04:13] Speaker 01:
So she did discuss those exemptions.

[00:04:15] Speaker 04:
But is that in the context of looking at the position description or looking at the actual work?

[00:04:23] Speaker 01:
She said they did both.

[00:04:23] Speaker 04:
My impression from her testimony

[00:04:25] Speaker 04:
is that she was reviewing position descriptions rather than asking someone, well, what do they actually do?

[00:04:32] Speaker 04:
What is the indication that she's finding out what they actually do, as opposed to what's in the position description?

[00:04:39] Speaker 01:
I don't think you can interpret her comments on page 58 of the deposition of the Joint Appendix 146, where she says, we had a discussion with Messer and his staff about the nature of the work.

[00:04:50] Speaker 01:
I don't think we can interpret that as a discussion about the position description.

[00:04:55] Speaker 01:
But granted,

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She talked about both.

[00:04:57] Speaker 01:
What is fuzzy in the record is what position description she was talking about, because it was not clear for most of this testimony that she was talking about the position description that's caused the problem here, which was a 2001 position description that was adopted after this controversy arose in 2012.

[00:05:17] Speaker 01:
And in the aftermath of this classification review, the agency said, we're going to white out the exempt.

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put in a non-exempt, and we're going to dock this.

[00:05:27] Speaker 04:
But they didn't otherwise change the position description, as I understand it.

[00:05:30] Speaker 01:
Well, that's the problem.

[00:05:32] Speaker 01:
What's the position description?

[00:05:35] Speaker 04:
You're talking about HO 293L?

[00:05:38] Speaker 01:
Well, those are the only versions in the record.

[00:05:42] Speaker 01:
Well, that's pretty much what we're stuck with.

[00:05:45] Speaker 01:
It's a problem.

[00:05:46] Speaker 01:
But I would direct this court's attention to a fairly important memo, and I can hand this up.

[00:05:51] Speaker 01:
It's in JA 465 of the Joint Appendix

[00:05:55] Speaker 01:
Looks like everybody has it.

[00:05:57] Speaker 01:
And this is in the middle of the classification review.

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And the Office of Training Development at the Border Patrol Academy, which those are the people in the field, Mr. Messer's operation, they're summarizing what's happening in the course of this review.

[00:06:13] Speaker 01:
And going directly to the court's question, in the section on cause and effect, he refers to two different position descriptions, one for the supervisors

[00:06:25] Speaker 01:
in the field and one for the supervisors at the Academy.

[00:06:28] Speaker 01:
Now at that time it's not clear they had not adopted this 2001 grade 13 position description for this position.

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So he must be talking about other position descriptions.

[00:06:40] Speaker 04:
Well I assume he's talking about the difference between HO 292, which is the field, and 293, which is the CDIs, right?

[00:06:49] Speaker 01:
Well I don't think we can make that assumption for

[00:06:51] Speaker 01:
the grade involved because when these people were in this position up until the time they were upgraded, they had the same classification, supervisor, border patrol agent, course developer, instructor, grade 12.

[00:07:08] Speaker 01:
That's what we're missing here.

[00:07:10] Speaker 01:
To get to the bottom line, Your Honor, we believe... What is the difference between

[00:07:14] Speaker 04:
HO292L and HO293L, which are both in the record at JA352 and JA362.

[00:07:27] Speaker 04:
See, one of them, I assumed that these two represented the different positions depending on whether they were in the field or at the academy.

[00:07:44] Speaker 04:
One of them was initially marked exempt, and the other was initially marked non-exempt, right?

[00:07:50] Speaker 01:
Well, 352 and 362 are the ones that were both marked exempt.

[00:07:55] Speaker 01:
I believe 357 and 367 are the ones.

[00:07:59] Speaker 01:
Oh, yes, you're right.

[00:08:00] Speaker ?:
That's correct.

[00:08:01] Speaker 01:
That's the second right.

[00:08:02] Speaker 01:
And again, Your Honor, it was not revealed until the defendant's summary judgment opposition that the documents furnished to the plaintiffs in this case

[00:08:14] Speaker 01:
had been altered.

[00:08:15] Speaker 01:
So when we went into our summary judgment position, we assumed that 357 was an authentic document, and that it had been in place at the Academy for the 13th since 2001, and that they had been classified as non-exempt.

[00:08:33] Speaker 01:
They submitted an affidavit saying, no, we whited out the one and we changed it to the other after January 2012.

[00:08:40] Speaker 01:
So none of that had any historical relevance.

[00:08:42] Speaker 04:
But that was pursuant to Mrs. Copeland's reclassification decision, right?

[00:08:48] Speaker 01:
It's not clear that Miss Copeland was dealing with this classification.

[00:08:53] Speaker 01:
Her affiant Grayson said, we took it.

[00:08:56] Speaker 01:
But even looking at Grayson's affidavit, she did not say we looked at the duties contained in the position description itself to see if those matched what the people did at the academy.

[00:09:08] Speaker 01:
There was never any testimony of that effect.

[00:09:10] Speaker 01:
That was our whole point, Your Honor, in opposing the summary judgment, that the government presented no testimony whatsoever to match the duties with the position description.

[00:09:21] Speaker 01:
And I would say that certainly Ms.

[00:09:23] Speaker 01:
Copeland did not do that either.

[00:09:25] Speaker 01:
She talked about the position description that was in effect as she testified in 2014.

[00:09:32] Speaker 01:
But she did not go back and say, we matched the duties in this GS-13 thing with what the people did.

[00:09:40] Speaker 01:
I would say the testimony as a whole counters that anyway.

[00:09:45] Speaker 01:
Keep in mind, this was a case about people who worked massive amounts of overtime.

[00:09:50] Speaker 01:
They were working 100 to 120 hours per pay period.

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And what were they doing?

[00:09:55] Speaker 01:
It was because of the needs of the service.

[00:09:57] Speaker 01:
All of this was unanticipated overtime because they had to be at the academy.

[00:10:02] Speaker 04:
It seems to me you're saying something that's inconsistent.

[00:10:05] Speaker 04:
If I read your summary judgment motion,

[00:10:09] Speaker 04:
with what you put in the motion.

[00:10:10] Speaker 04:
I mean, you said in the motion that Ms.

[00:10:12] Speaker 04:
Copeland absolved the parties of the need to put in extensive discovery by relying on the agency's position descriptions for her testimony.

[00:10:23] Speaker 04:
That seems to me you're saying she is relying on the PDs.

[00:10:27] Speaker 01:
She did in part.

[00:10:29] Speaker 01:
The state of the record at that time, though, Your Honor, was that we were given the document that was the whited out document

[00:10:36] Speaker 01:
without any revelation that that document was whited out in 2012.

[00:10:40] Speaker 04:
Well, the only thing that was whited out was the exempt versus non-exempt, right?

[00:10:44] Speaker 01:
Yes, but if it had been the other way around, if this document had been, as it appeared on its face, in place since 2001 as non-exempt, that would have been a very strong piece of evidence to show.

[00:10:56] Speaker 01:
And matter of fact, we used it to show there was a willful violation.

[00:10:59] Speaker 01:
Because we said, here the agency had actually classified these people as non-exempt for close to 15 years, but they didn't tell us.

[00:11:06] Speaker 01:
Later on, the government brought in an affidavit saying, well, no, that's not what happened because we changed the document.

[00:11:13] Speaker 01:
So I think that the position description itself does not trump what this Court has said in Berg versus Newman.

[00:11:20] Speaker 01:
You have to look at the actual duties of the position.

[00:11:23] Speaker 01:
There was no testimony whatsoever by any government official here as to the actual duties of the position to match those up against this position description.

[00:11:35] Speaker 01:
If you, again, if you look at the thing on its face, we're not trying that today because we rely on the legal argument that the government's duty is to show that these folks actually did these things.

[00:11:47] Speaker 03:
What about Mr. Messer and his testimony on JA 119, where he articulates and discusses, it seems, the duties

[00:11:58] Speaker 03:
You said the government produced no testimony at all by anybody about the duties, and it seems like he's doing it here.

[00:12:07] Speaker 01:
Right.

[00:12:07] Speaker 01:
His testimony was in favor of the plaintiffs, though, because he's the gentleman who brought up the disparity that caused the review to take place.

[00:12:19] Speaker 01:
And he said, if you look in J-465, the July 20 memo, it says that

[00:12:27] Speaker 01:
The Border Patrol Academy maintains that the same basic duties occur in both position descriptions.

[00:12:34] Speaker 01:
That is, the non-exempt duties in the field also apply to the non-exempt duties at the academy.

[00:12:40] Speaker 01:
That their basic supervisory job is the same in both places, it was historically non-exempt and should remain non-exempt.

[00:12:47] Speaker 01:
So that was his basic testimony.

[00:12:48] Speaker 01:
Then he was asked, well, what differences are there?

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And the government says that, well, the judge called those significant differences.

[00:12:57] Speaker 01:
He didn't say they were significant.

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He simply said that at the academy, of course, they put out their pens and papers and get supplies and things like that.

[00:13:05] Speaker 01:
But that their basic duties, the primary duties, which is the test under the FLSA, are the same as the people in the field.

[00:13:11] Speaker 01:
And he enumerates those as scheduling, performance management, and evaluation.

[00:13:16] Speaker 01:
and fundamental supervisor duties.

[00:13:17] Speaker 02:
Would you agree that the CDIs are required to have and maintain advanced knowledge?

[00:13:24] Speaker 01:
No.

[00:13:25] Speaker 01:
No, because there's no... The qualifications to become an instructor are the same as to become a Border Patrol agent.

[00:13:34] Speaker 01:
High school education is required as all, and it says specifically in OPM's regulations, that's not sufficient to be a learned professional.

[00:13:42] Speaker 01:
You have to have a course which is akin to a degree

[00:13:45] Speaker 01:
or something like it that leads to an advanced certificate.

[00:13:48] Speaker 01:
And as in the Board of Patrol Academy is virtually identical to the Federal Law Enforcement Training Center in Glencoe.

[00:13:58] Speaker 01:
And in the Astor case, the court explained why this is not an educational establishment.

[00:14:02] Speaker 02:
It's not virtually identical, is it?

[00:14:04] Speaker 02:
I mean, there are language requirements.

[00:14:07] Speaker 02:
There seem to be a number of distinctions.

[00:14:11] Speaker 01:
Well, in terms of, of course, each element has to be met, Your Honor.

[00:14:15] Speaker 01:
Typically, the Spanish instructors come in with the facility.

[00:14:20] Speaker 01:
But there was nothing in the record to show that the training at the academy to become an instructor was anything longer than the two weeks required at Glencoe.

[00:14:31] Speaker 01:
And again, that's something that the burden would be on the government to come in and show that each of those elements are met.

[00:14:36] Speaker 01:
We rest on our briefs as far as the other two elements, the learning professional requirements of educational establishment and the long training course.

[00:14:46] Speaker 03:
We should hear from the government now, so we'll restore some of your rebuttal time that you've used up.

[00:14:51] Speaker 03:
Thank you, Your Honor.

[00:15:07] Speaker 00:
May it please the Court.

[00:15:09] Speaker 00:
The Court of Federal Claims properly granted summary judgment, and this Court should affirm.

[00:15:14] Speaker 00:
There's never been any dispute that the main responsibility of appellants in this case was to provide classroom instruction.

[00:15:22] Speaker 00:
And that is the basis on which the court applied the plain language of the regulations in finding that the teacher exemption applied here.

[00:15:31] Speaker 00:
This appeal is much more about the summary judgment standard than it is about the FLSA.

[00:15:38] Speaker 00:
There isn't some question of statutory or regulatory interpretation

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for the court to make here regarding the FLSA, appellants are arguing that the trial court failed to apply the summary judgment standard properly.

[00:15:54] Speaker 00:
But the court did.

[00:15:56] Speaker 00:
Appellants keep saying that the evidence wasn't enough to meet the government's burden.

[00:16:02] Speaker 00:
But as to facts that were undisputed, during oral argument, the court repeatedly confirmed with plaintiffs

[00:16:10] Speaker 00:
that there weren't disputes about what these individuals did, that there wasn't a problem with the position description.

[00:16:19] Speaker 00:
During Mr. Fay's argument, the only thing he has identified during his argument or his briefs, the only thing appellants have identified is some issue with respect to the percentages identified in that narrative.

[00:16:32] Speaker 00:
The percentages are totally inconsequential in this case, because every one of the duties

[00:16:38] Speaker 00:
would be exempt under one basis or another.

[00:16:43] Speaker 00:
But back to the main point.

[00:16:45] Speaker 03:
The main point is what the- Well, there's one case out there that I remember reading that indicates that a job description alone wouldn't be enough.

[00:16:56] Speaker 03:
So what is the government's evidence in this case?

[00:16:59] Speaker 03:
Or do you think this job description differs from the one at issue in the prior precedent that we're bound by?

[00:17:06] Speaker 00:
Sure.

[00:17:06] Speaker 00:
So in this case,

[00:17:09] Speaker 00:
The court relied on more than just the position description.

[00:17:11] Speaker 00:
And that's point number one.

[00:17:13] Speaker 00:
The court's opinion shows that it relied on deposition testimony.

[00:17:17] Speaker 03:
Go ahead.

[00:17:19] Speaker 03:
Which deposition testimony?

[00:17:20] Speaker 00:
So the court cited Mr. Messer's deposition, where he explained both the differences in a summary fashion.

[00:17:28] Speaker 00:
It wasn't great detail, but differences between these supervisory border patrol agents who worked in the field versus the ones at these academies.

[00:17:37] Speaker 00:
And it made clear that they were there to teach.

[00:17:40] Speaker 04:
And so that struck me.

[00:17:42] Speaker 04:
Messer's testimony, you're right.

[00:17:44] Speaker 04:
And you cite to the passage of Messer's testimony, which I think the presiding judge referred to in connection with the appellant's argument.

[00:17:52] Speaker 04:
But that struck me as kind of thin.

[00:17:56] Speaker 04:
It certainly wouldn't be sufficient to serve as a plenary description of the job tasks that are performed by these employees.

[00:18:07] Speaker 04:
You're relying really on the position descriptions, aren't you?

[00:18:11] Speaker 04:
I mean, that's basically your case.

[00:18:12] Speaker 00:
Your Honor, there's no question about it.

[00:18:14] Speaker 00:
The position description was a detailed, in this case, this position description, was a detailed account of what the plaintiffs did.

[00:18:25] Speaker 00:
And it was more detailed than the other evidence.

[00:18:27] Speaker 04:
And your contention is that in the Berg case, for example, the position description was much less detailed?

[00:18:35] Speaker 00:
Our contention is that in that case, like some others, the position description was found inadequate to meet the needs of what was needing to be decided in that case.

[00:18:47] Speaker 00:
That holding should not be interpreted as setting some different summary judgment standard for FLSA cases, or saying that position descriptions can never be relied on, or that the court has to presume that they're wrong, even if everybody is citing to them.

[00:19:03] Speaker 00:
We were not the first ones to cite to the position description.

[00:19:07] Speaker 03:
This case started with... Your answer is not responsive to Judge Bryson's question.

[00:19:12] Speaker 03:
His question was very precise, and I'll rephrase it and change it a little bit so that maybe we can get clarity out of you.

[00:19:19] Speaker 03:
What is it that you think the Byrd precedent stands for vis-a-vis position descriptions?

[00:19:24] Speaker 03:
Nobody has suggested that it stands for the proposition that they can't ever be relied on or part of the evidence, but in that case, the general position description as written

[00:19:33] Speaker 03:
was deemed to be insufficient in and of itself to prove what the government needed to prove.

[00:19:39] Speaker 03:
So do you need to explain to us how it differs from this one, or is what precisely the law is that comes from Byrd and why it doesn't apply here?

[00:19:48] Speaker 00:
And so we would go to the language in Byrd.

[00:19:51] Speaker 00:
And I'm looking at page 503, where Byrd explained that the record in that case, the record provides little, if any, evidence of appellant's supervisory

[00:20:02] Speaker 00:
or managerial functions on a daily basis.

[00:20:06] Speaker 00:
And so as we distinguish that to this case, in that case we were talking about one different positions.

[00:20:12] Speaker 00:
We were talking about electronic technicians, not teachers.

[00:20:15] Speaker 00:
We were talking about the administrative exemption, not the teacher exemption.

[00:20:19] Speaker 00:
As we compare that, we really do think that Berg was a holding that's limited to its facts and that there's not some sweeping proposition of law.

[00:20:27] Speaker 00:
As we compare those facts to this case, here we've got the teacher exemption.

[00:20:32] Speaker 00:
That's what's at issue.

[00:20:34] Speaker 00:
And it was never in dispute from the original complaint.

[00:20:37] Speaker 03:
It would seem very strange to suggest that if there were a rule of law which said that job descriptions alone cannot meet, suffice without additional record evidence to establish the government's burden when it comes to the administrative position or the executive position,

[00:20:55] Speaker 03:
It would seem strange if your critical point of distinction were that only applies to administrative and executive positions, but not to teaching positions, which is what I heard you say a minute ago.

[00:21:05] Speaker 03:
And that would seem like a very strange argument.

[00:21:07] Speaker 00:
Your Honor, I definitely want to clarify.

[00:21:08] Speaker 00:
We have a two-point response to this.

[00:21:10] Speaker 00:
The first is that we do not think that Berg is properly interpreted as saying that position descriptions can never suffice.

[00:21:19] Speaker 00:
We don't think that's the right way to interpret that precedent.

[00:21:22] Speaker 00:
That's point number one.

[00:21:23] Speaker 00:
Point number two.

[00:21:25] Speaker 00:
Even if that were the rule, that's not what happened here.

[00:21:28] Speaker 00:
We had different facts here.

[00:21:31] Speaker 00:
It wasn't just the position description here.

[00:21:33] Speaker 00:
We had something that was squarely addressed and undisputed.

[00:21:35] Speaker 00:
And it met the requirements of what was to be decided.

[00:21:41] Speaker 00:
This case actually could have been decided on the pleadings from the original complaint.

[00:21:46] Speaker 00:
It was made clear that plaintiffs provided classroom instruction, and that's what they did day to day.

[00:21:54] Speaker 00:
We didn't need to figure out, well, what was 51% of their job.

[00:21:59] Speaker 00:
It was all along clear that the appellants were there to provide classroom instruction.

[00:22:06] Speaker 00:
And that, under the plain language of the regulation, meets the exemption requirement.

[00:22:11] Speaker 00:
And so on that basis, the court properly decided this case.

[00:22:16] Speaker 00:
And it was on that basis.

[00:22:18] Speaker 00:
The court got it right, and this court should affirm.

[00:22:21] Speaker 04:
What about Ms.

[00:22:22] Speaker 04:
Copeland's testimony?

[00:22:24] Speaker 04:
Why is, in your view, Ms.

[00:22:27] Speaker 04:
Copeland's several references, why are those insufficient to create an issue of fact?

[00:22:36] Speaker 00:
So Appellant's argument with respect to Ms.

[00:22:39] Speaker 00:
Copeland's testimony was that because she had made the determination as the classification official for the agency, that this should be switched from exempt to non-exempt.

[00:22:53] Speaker 00:
that therefore the matter was decided.

[00:22:56] Speaker 00:
And the court, of course, disagreed.

[00:22:58] Speaker 00:
And so it wasn't a factual issue here.

[00:23:02] Speaker 00:
There's not a dispute about the facts with respect to Ms.

[00:23:05] Speaker 00:
Copeland's testimony.

[00:23:06] Speaker 00:
She was designated under Rule 30B6 to testify as to why CVP made that change.

[00:23:14] Speaker 00:
And she did that.

[00:23:15] Speaker 00:
She explained what she thought.

[00:23:18] Speaker 00:
She explained her view of things.

[00:23:20] Speaker 00:
Those facts aren't in dispute.

[00:23:21] Speaker 00:
They're not really even material to the decision here.

[00:23:25] Speaker 00:
This was a matter of applying the facts of what the appellants did to applying the relative law, the regulation, to what they did.

[00:23:33] Speaker 00:
And so the facts of why that change was made, it really didn't, and that's what Ms.

[00:23:38] Speaker 00:
Copeland testified about, it really don't affect the outcome of this case.

[00:23:42] Speaker 03:
But Ms.

[00:23:43] Speaker 03:
Copeland testified that

[00:23:45] Speaker 03:
She had discussions with Mr. Messer and his staff about the nature of the work, how the work was being assigned.

[00:23:51] Speaker 03:
She looked at the job descriptions themselves.

[00:23:54] Speaker 03:
It looks like she did a lot more than simply base her decision on the job descriptions.

[00:24:00] Speaker 03:
And then she repeatedly refers back to those conversations with Mr. Messer and his immediate staff.

[00:24:07] Speaker 03:
So it seems as though she had a heck of a lot more information when she was making her decision.

[00:24:14] Speaker 03:
than the court below did when it was making its.

[00:24:17] Speaker 03:
And why doesn't that potentially create a question fact?

[00:24:19] Speaker 03:
Because she reached a different conclusion based on her conversations with them about the nature of the works they were performing.

[00:24:26] Speaker 03:
Why doesn't it create a fact about what really were the day-to-day activities of these individuals?

[00:24:32] Speaker 00:
It didn't create a dispute of fact because none was presented to the court.

[00:24:37] Speaker 03:
None was presented to the court of what?

[00:24:39] Speaker 00:
The Court of Federal Claims.

[00:24:41] Speaker 00:
No dispute of fact was actually presented.

[00:24:44] Speaker 00:
And so while one could read that snippet, not the whole transcript from that deposition or the whole record, but if one read that snippet, one could say, oh, maybe there's something to look at here.

[00:24:55] Speaker 00:
But if that was the case, it needed to be presented to the Court of Federal Claims.

[00:24:59] Speaker 00:
It can't just be that.

[00:25:02] Speaker 00:
And with respect to the discussions with Mr. Messer, Appellant's Council... Why can't it just be that?

[00:25:08] Speaker 03:
When I did all this additional work above and beyond the job description, I concluded, my entire staff concluded, my supervisor concluded, we were unanimous when we looked at this evidence that these people qualified.

[00:25:22] Speaker 03:
Why?

[00:25:22] Speaker 03:
I mean, that's a lot of people all sitting in a room looking at stuff different from what the court of federal claims apparently had in front of it and reaching a conclusion about the status of these employees.

[00:25:33] Speaker 00:
And that's just it.

[00:25:34] Speaker 00:
It's the issue of the conclusion, the facts we would need

[00:25:37] Speaker 00:
are the facts of what the duties were, not the conclusions of a particular agency official.

[00:25:44] Speaker 00:
And with respect to what was being discussed with the Academy staff, in particular Mr. Messer, who was a representative of the Academy of the Office of Training and Development staff, the memo that appellants pointed the court to on during their exam.

[00:26:01] Speaker 03:
Would this be a different case if, for example, Ms.

[00:26:03] Speaker 03:
Copeland had actually testified not just that she had talked

[00:26:06] Speaker 03:
with all these different people about the work that they were doing.

[00:26:09] Speaker 03:
But if there was something in here where she indicated and she found the day-to-day activities differed from that in the job description or something like that, would that make this a very different case?

[00:26:18] Speaker 00:
If we had somewhere, anywhere, in there, elsewhere, if we had something that in any way contradicted the other evidence, the position description, any of the other evidence, if she provided any some specific testimony that contradicted that or

[00:26:35] Speaker 00:
If we had that anywhere, it could be a very different case.

[00:26:37] Speaker 03:
Like any sort of declaration from any one of the employees or anything.

[00:26:41] Speaker 00:
Absolutely.

[00:26:42] Speaker 00:
Any sort of a statement from a plaintiff that raised any sort of a dispute about what they actually did, this would be a... As if you have a genuine issue.

[00:26:51] Speaker 00:
We would have a totally different case, and we could very well have a genuine issue.

[00:26:54] Speaker 04:
But I suppose you would also say that it would be incumbent upon the plaintiffs to make that argument to the Court of Federal Claims, rather than saying that

[00:27:04] Speaker 04:
the position description itself establishes the legal right to non-exempt status.

[00:27:10] Speaker 04:
Absolutely.

[00:27:11] Speaker 04:
Which was, as I understand it, their position before the Court of Federal Claims.

[00:27:17] Speaker 00:
And it goes beyond just the failure to tell the court that there is potentially some disagreement by pointing to some particular evidence or some statement of somebody with specifics on what could potentially be wrong.

[00:27:29] Speaker 00:
In the oral argument, if not the briefs,

[00:27:33] Speaker 00:
The trial court here was told that there wasn't anything to be worried about there, that there wasn't any dispute about what these employees did, that there wasn't anything wrong with relying on the position description.

[00:27:46] Speaker 00:
Appellants can't come to this court now and ask for this court to do something different.

[00:27:50] Speaker 00:
The court did not make an error.

[00:27:52] Speaker 00:
The court got it right, and this court should have tried.

[00:27:55] Speaker 03:
Thank you, Mr. Volk.

[00:27:55] Speaker 03:
Mr. Fay, you have two minutes of rebuttal time.

[00:28:03] Speaker 01:
Thank you, Your Honor.

[00:28:04] Speaker 01:
Two brief points.

[00:28:05] Speaker 01:
One, I was surprised to hear that the percentages in that position description are inconsequential.

[00:28:12] Speaker 01:
The government would have the burden of showing that that's what these people did.

[00:28:15] Speaker 01:
Now, we're hearing two things.

[00:28:17] Speaker 01:
One is that they did classroom instruction.

[00:28:19] Speaker 01:
Classroom instruction, by itself, is not an exempt or non-exempt function.

[00:28:24] Speaker 01:
We'd have to find out what the duties were.

[00:28:26] Speaker 01:
So for example, in that Hashup case, space mission simulator instructors

[00:28:32] Speaker 01:
were deemed to be non-exempt because they did not meet the standards of the professional exemption.

[00:28:38] Speaker 01:
So just to say they're classroom instructors.

[00:28:39] Speaker 01:
We all agree they did classroom instruction.

[00:28:42] Speaker 01:
We do not agree that they did 20% course evaluation and all those things.

[00:28:46] Speaker 01:
If you read that position description, there is scant reference to normal instruction in the classroom.

[00:28:51] Speaker 03:
It's all other things.

[00:28:52] Speaker 03:
We're saying we don't agree that they did all this.

[00:28:54] Speaker 03:
Where is the evidence?

[00:28:56] Speaker 03:
Or even, where did you make that argument before the Court of Federal Claims?

[00:29:00] Speaker 03:
Because I couldn't find it anywhere.

[00:29:01] Speaker 01:
Right.

[00:29:02] Speaker 01:
Because we relied on the fact that the agency itself had, through its subject matter experts, made the opposite determination.

[00:29:08] Speaker 01:
They were not exempt.

[00:29:09] Speaker 04:
But you didn't make that argument to the court.

[00:29:11] Speaker 01:
Oh, yes, we did.

[00:29:12] Speaker 01:
Well, where?

[00:29:13] Speaker 04:
Well, he's talking about the oral argument.

[00:29:15] Speaker 04:
I've read both of your pleadings on summary judgment, and I didn't see that argument being pressed.

[00:29:21] Speaker 01:
We relied on the fact that the court

[00:29:24] Speaker 01:
The testimony that was binding on the government was that they had done this review with the relevant people in the field and in headquarters and classification and come to the conclusion that the duties were not exempt.

[00:29:36] Speaker 01:
And again, I just refer you again to Joint Appendix 146 and 142 as samples of that.

[00:29:42] Speaker 04:
The last point I would like to make.

[00:29:43] Speaker 04:
That's where the evidence is that you are now relying on.

[00:29:46] Speaker 04:
What I'm looking for is any indication that you made an argument based on that evidence to the Court of Federal Claims.

[00:29:53] Speaker 04:
And that's what I'm not saying.

[00:29:55] Speaker 01:
No, we didn't make that argument.

[00:29:56] Speaker 04:
An argument, in other words, that the position description was not accurate because it did not correctly express what these people actually did in the day-to-day basis.

[00:30:08] Speaker 01:
Well, we didn't find out until later that the position description was altered.

[00:30:12] Speaker 04:
Finally, I just- You didn't make that argument before the court of federal court.

[00:30:15] Speaker 01:
No, we did not make it in those terms, Your Honor.

[00:30:17] Speaker 01:
And finally, I just wanted to say that the Berg standard was codified in OPM's regulation

[00:30:23] Speaker 01:
at 5 CFR 551.202E, which specifically states that while position descriptions and titles may assist in making the exemption determination, I was paraphrasing, and then quote, the designation of an employee as FLSA exempt or non-exempt must ultimately rest on the duties actually performed by the employee.

[00:30:46] Speaker 03:
Thank you very much.

[00:30:48] Speaker 03:
Thank you, Mr. Fay.

[00:30:49] Speaker 03:
The case is taken under submission.