effect of all the restrictions on the plaintiff during the break and not individualize them here the claims court didn't do that and although it said it did individualized each one of their a deal well and o p m regulations should not be considered specifically the parts in which day and vice employers d that if you don't completely relieve some officers because she did not it was not in the record the facts did not support the fact that they were absolutely free to roam wherever they pleased and at every therefore with members of the public unless they were approach to perform a duty such as and there was testimony to this effect where they had to give directions so they were performing some duties not  breaks it was intermittent but they were also restricted in that they could only be in certain places at certain times and they could not perform her uniform on arms and the only restrictions on them is that they are subject to a call back where they have to monitor their radios to be subject to callback so our case is different also they're not by their own terms binding on us to do you agree that the predominant benefit test as applied by the vast majority of circuits is the right test that we should be applying it i don't necessarily agree with the test personally court of appeals a predominant benefits test so i accept the test i just don't accept the application of the test to the facts of this case in the way that the court ignored the regulation the way the regulation the armor case and this could work case in the spring court seem to involve very different circumstances that is they involve situations in which the employee is on standby and hasn't been relieved by anybody else do you agree that it makes a significant difference that these officers were relieved of all they were on break i believe that could be one element that supports the employer but it does not should not stand or fall on that because they were still on standby or in the regulations also talk about idle time so it's not just stand by as i don't miss so that even when someone is idle they could be providing a benefit to their employer and in this case they did they had to  be had to be ever vigilant they had to monitor their radios they actually were subject to checks on their radios and they had to be ready to support any emergency while they were on break and they were restricted in the way that they could interact with people and other officers depend on also d you can't and the court did not look at the particular environment that you have at the pentagon this is the most highly secured military facility in the united states and if you look at the cases such as the lyndall case the older cases but cases where in the war time such as the cult in the case where security was key you'll see that the saying as opposed to cases where you're not in a highly secured environment you'll see that these personal restrictions in addition to all the other restrictions personal errands and other parts of their time line and also with regard to the fact that they cation and intermittently but often enough  consider that precedent binding yes and i do also concede that the majority of courts except perhaps the th circuit have used that test and so i've been i've indicated that  call a mechanical type question to understand the the background here as i understand the officers work either a twelve and a half hour shift or an eight and a half hour shift that correct that is correct  and if you're on a twelve and a half hour shift you get three breaks if you're on an eight and a half hour shift you get two breaks right correct and i suppose i guess from what i'm understanding the way this mechanically works is the officers if you're on a twelve and a half hour shift you automatically get paid for two shifts and if you're on an eight and a half hour shift you automatically get paid for one ship for one brake is that correct centrally yes although it's a better way of looking at it judges that you just don't you are on duty for eight and a half hours with a shorter shift and you get paid for eight hours and for the longer shifts you're on duty for twelve and a half hours and you get paid for twelve i don't think there's a specific delineation as to which part of it which part of your breaks are being for one of those in paper one plus i guess an extra five minutes ok so thirty five minutes mr gold if you talk about all  various factors here which are weighed in determining the result of the predominant benefit test is the weighing of those various factors a legal question or a factual question it's an application of the facts to the law so i think both sides as indicated that that's a legal question for the court to decide unless there are significant material fact the instance chief cusses testimony regarding their duty status whether they're completely v v used or just on call but as we've indicated since chief could say was that the d b six witness has made an evidentiary admission that they're never completely released from duty during the time that they're on breaks as to post as opposed to being on call and that that's a significant factor that the court ignored and claim was immaterial again it's not a factor in and of itself that in the case of plants she should win but there's a factor that needs to be considered  the pentagon was not getting some benefit of these off and security value of these officers being at the pentagon at all times and being ready to support any contingency or emergency yes your honor may it please the court the appellant's challenge the court of federal claims decision on summary judgment but even with all the circumstances strived by the officers and stated in the record they remain the predominant radio answer my question is the weighing of the various factors the application of the law to the undisputed facts of the legal question yes i believe two if i may continue i would just like to correct the statements that opposing counsel made where he indicated that the officers are not allowed to interact with the public or  as we've tried to correct this in our brief and as these trials held that simply not an accurate description of the officers situation they are able to appear in public interact with members of the public and they  completely removed from duty and that's seems to be still applying the department of labor interpretive regulations just calling the predominant benefit test and the trial court correctly understood that not need to grant the officers compensation if they have any restrictions or duties on their time whatsoever the trial court recognized that it needed to determine which as a matter of law which party  so the court of claims the court of federal plans and many other circuit courts have not required an employer to completely relieve an employee from duty during meal breaks and this issue of whether they're completely relieved from duty or not is simply a question of on duty or on call or being called back to duty during a break the understated facts are that they are on their posts during their paid time and they are relieved by brazier officer who takes over that post and they go on their break and they have the potential to be called back from the break during an emergency the question of what semantically that status is called by the agency the trial court recognized that was not a material sorry i'm trying to parse the double negative there your honor i believe some officers did testify that they had been interrupted on both a somewhat complicated answer your honor so i apologize for that the issue here is that there is not been a i would say a clear statement from the court pursuits and when they're following their own pursuits then they're pursuing activities that benefit themselves and their predominately benefiting so as the trial court explain these formulas have the same effect which is determining which party predominantly benefits the complete relief the literal language of the regulation is simply inflexible and has not been followed literally so this court can decide to follow that and say that it's not invalidating that it's but it's an interpretive regulation it doesn't need to be taken literally but the regulation says that any duty whether active or inactive requires compensation and that would mean even listening to a radio during breaks which could be an active duty it's scuse me this is judge shown here you've been addressing the predominant benefit standard in response to judge lewis question and you heard what mr gould had to say at page twenty four of his standard when you have the situation of a law enforcement officer and he or she must remain in uniform during their break time or their meal time do you agree with what that approach relieved from duty standard and there's also numerous cases holding that employees who are remaining in uniform subject to emergency call back then have to talk to citizens are predominately he's qusay testified that he did not believe there was a time the officers were completely relieved from duty so the seem to be putting great weight on just the terminology being used and saying that trumps everything else that the court shouldn't consider is what they're actually doing during the breaks and we disagree with that what if an agency's calling it calling the break that you're on call it doesn't mean they're benefiting any more or less if they call it being on duty or not   the predominant it's the predominant benefit test right from the start with no ifs ands or buts yes yes your honor thank you and  cases for the supreme court as the as you noted both of those cases were about the basic idea that waiting in some circumstances can be work at all it's not precluded under the f l s a from being simply because you're not producing something in a factory neither of those cases are about meal breaks the officers would like to say well idle time to be paid in some circumstances and we're idle during our breaks so therefore pay us and that the entire know what they're doing during their breaks and if the burden was placed on the employer that would paradoxically require them to supervise the brace more heavily just to know what they're doing so we would request that this court find that persuasive as well i think almost  they cannot vote which i thought a break that i always understood is that you were allowed to vote that was the purpose of a break and they have to be seen at all times  minute break during that period there's no obligation to pay overtime correct and right as long as it's completely relieved from duty and the boy is receiving the benefits from examples the court read it is testimony as being limited to shoeshine but that doesn't make any sense even if it was responsive to that question that has to be greater than that because any other personal  officer might be running would put him in contact with someone else either a member of the public or another officer and since he couldn't be seen doing that obviously anything else any ignoring all of that or at least minimizing the importance of it as to be issue about the exception that was brought up burden of proof would be on the defense in that situation so there is one case that has has spoken so that but again i don't think that's dispositive whichever way the court comes out on that issue if you feel you need to reach it i think the plaintiffs are successful no matter who has the burden of proof here because i think the facts were largely undisputed and the only disputed one since is that the court us to take a reasonable view of the evidence and when you have a thirty six witness is the chief of the department telling you what the rule is it really can't be disputed from an evidentiary point of view that's our point and we keep being accused of making it seem like that that's conclusive on the court it's not conclusive but d it is an element that the court neglected to consider and it's important element because without asking yourself that question why is it the pentagon requires these people to be on duty at all times it must be getting it must be getting a benefit out of it and it is getting a benefit out of it because they're ready at any point in time and there's  assist in securing and making a public feel secure and actually the pentagon being secure that's a benefit to the pentagon during their meal breaks for which they should be paid so for all those d reasons