call the united states of america x rail the international brotherhood of electrical workers local ninety eight versus the far field company and i would call upon m thank you your honor my name is susan friedman i'm here representing the appellant the farkle company and i would like to reserve five minutes for rebuttal please that that will be granted there are of course a series of issues that have been raised by the appellant and that argued in the brief and i don't know that we will have adequate time to address all of them and some would appear to have more priority if not be more substantial than others all of your honors are away or there is a quote within the circuits with the decisions of the six circuit and some of the other circuits finding that the interpretation of the revised or amended statute should mean that cases in the applicable section be for the claims refers to cases as opposed to claims given that there is indeed a circuit split as to what is the intended meaning of claims and the th th the nine have in opinions taken a position consistent with your preference while the  say not as well reasoned but i will say more briefly reasoned in fact there's some footnoted material which takes up the position you wish to take as opposed to the much more robust discussion givens with the th circuit decision and judge wood with the th circuit decision isn't the stronger case here if we're looking to the circuit split in the opinions that  the better a case the stronger issue or the more robust position really is set forth in the th and th circuit opinions we would respectfully disagree with that we would note that the th circuit it was the same case that the supreme court had reversed them on the allison engine case and obviously they are trying to undo it or hope that congress had on done the decision in that case but be retroactive especially in a case where it's questionable whether it's an ex post facto law where it certainly has been raised and can be argued that it's ex post facto and his punitive in nature and we may get we may get to that th in nature is a piece of all this right now we're we're talking solely about interpretation of these terms and if we disagree with your argument a mature activity doesn't that pretty much resolve it why can't congress make it  it is not punitive if it's totally a simple measure as opposed to a criminal measure congress could do that but in this case there are two sections with two different phrases very respectfully although the courts the six circuit argued and the ones that followed its lead argued that the use of the word claims doesn't make any sense talking about a claim under the false claims that i would respectfully submit it does make sense well i have how that that's probably what troubles me more than anything about your position and i think we would all agree respect irrespective of how we come out the context matters so if you import the defined term claim into retroactivity provision it seems to me that what you're left with is something like requests or demands for payment under the false claims act but that can't be right do does it make sense to say that contractors requests for payment are submitted under the false claims act but i don't that it can't be i don't think the statute needs to be read that way the statute can be read when you refer to claims under the false claims act that they would be the claims that would be actionable under the false claims act i mean we're dealing with a statute here that is titled the false claims act ok but they would only be under the false claims act if what they are are false or fragile or correct but they would still be the types of claims that would be actionable and falling under the false claims act we have a statute called the false claims act so the use of the word claims in the retroactivity provision should not have just been by chance and especially when the next section talks about cases and yes we're aware that over the past they came up to two different times in two different ways but it's still the specific use of the word claims when you're dealing about the false claims act and i think that it would make sense in trying to undo allison engine that they're not going back beyond the time they're going back and making sure they cover anything after allison engine so don't make it the same day you can make it two days before whatever reason i don't know that anybody knows why they made it two days before well that is i would agree to this point that the two days before language may not be the usual standard or common way of stating retro activity but the proximity the calendar proximity to the allison engine decision seems to me to answer the question i don't see how you can look at it any other way that they didn't take a calendar dart board and just end up with that two days before as a coincidence but i think it can be read to mean that they still would have to be claims the actionab cannot undo allison engine because and do it but not necessarily make it apply to the cases that came before before the supreme court decision that it would apply to cases that were already there were there were pending which doesn't apply in this case and claims that came afterwards you have people it's essentially and we will argue that it's a punitive statute it should not be retroactive to actions misclassification of employees issue that you raised could you just briefly indicate what what your contention is with respect to misclassification yes your honor may i make one brief statement with respect to retroactivity just bringin attention which are in the escobar case which is on materiality which is what it was cited for in the breeze there is a specific quote in the escobar case the talks about the punitive nature of the false claims act and it's found on  i can find this the quote is congress also has increased the acts civil penalties talking about the be all the different amendments to the false claims act so that liability is quote in nature and quote citing vermont agency of natural resources versus united states ex rail stevens u s supreme court two thousand case defendant there subjected to treble damages percival penalties of up to ten thousand dollars with respect to the misclassification in this case it's a misclassification of tasks of specific test it's very important to note we are not raising credibility issue we had stipulations of the pardons they were based on the testimony the deposition testimony of the plaintiff's expert witnesses especially mr luzhin you a greedy that the department of labor's prevailing wage determination here was derived from a particular c b i well what i would agree is because in this case the testimony of mr leach their expert witness the head  work i'm not sure how you ventured my question i'm sorry i'm sorry i'm trying to find the source and it seems that there are two basic sources it could be from local practice or it could be from a particular c p a and maybe one  forms the other but it if it is a particular c b a is that c b a in the record all of the collective bargaining agreements are in the record there were for the covered the time were three the covered the time period of the project because it lasted for unhappy us my chambers found and and please tell me if it were an error on this was that the earliest one that appears in the record was signed on december three two thousand agreements there were four because one was amended partway through that cover the entire length of the project or are all in the record and we're all admitted we made a specific point of covering the entire period of the project and having every collective bargaining agreement in there and the relevant provisions didn't change by the two so that i understand what you're arguing and i think i may not be are you arguing or did you argue in your briefing that local industry practice is only determinative of classification to the extent that it comports with the me agreement governments and fry brothers even references that and other cases do and you would never use local practice other than to expand upon in a term that wasn't in the contract some of the cases that are cited deal with two different unions and a jurisdictional dispute so you don't have one collective bargaining agreement the laborers have been around a collective bargaining agreement the i b e w has its own collective bargaining agreement there are relevant in determining which union does the work as a matter of local union practice and that's why i couldn't answer isn't in the collective bargaining agreement because there isn't a collective bargain agree with the governors but the laborers and the questions on the classification issue here practice because there's not a collective bargaining agreement that would cover different unions with respect to when you're dealing with classifications within that are all under one collective bargaining agreement as we have in this case the ground men and the journeyman are all within one collective bargaining agreement but language of the collective bargaining agreement governments just like the razor it's from the collective bargaining agreement and the case last friday brothers is going to reference that pushing wire fishing where if you will the residence or situation through a conduit not connecting it to hot line or connecting the hot neutral point the main correct is pulling it included with the and ten people with the foreman watching the journeyman electrician foreman watching weather all pulling wire it's heavy wire it's a long distance it's brute force it's horse power you need a lot of people to do it they all work together and nothing with energized farfield did not do any hot or energize work cept it all fits and hot work ok do you have questions on the and the classification issue here and they did not identify any classification issues but is there any evidence that the public labor war stopped looked at farm fields classification of payment workers yes it is specifically in the record it's in the record on the appeal we have in approximately seventy so pages from the audit and in the u s department of labor wanted in twenty two thousand and four dollars and in two thousand for their specific correspondence between brian johnson who was the auditor for the u s department of labor asking about the use of ground men and laborers on the project and in answer that went back so we specifically looked at the use of ground in laborers on the project halfway through the project and the only thing and they told farfield they didn't find any issues under the davis bacon act other than the labor day holiday where the four carpenters should have been paid labor day at the prevailing wage rate so they did specifically look at the use of ground men and laborers on the project and did not raise any issues whatsoever with respect to  before for we move to to the issue you have raised concerning materiality had one question regarding the dio well what effect if any is there to the fact that they declined that this case it's not a false claims act case it doesn't belong here it never belong to or it should have gone to the us department of labor who are quick to deal with complex worker classification cases they didn't want  fifteen years later because it was too old but the i p w two capitated from the witnesses their employees in two thousand just a few months after the project was over and in the middle of two of the other projects that they filed in there's false claims act case they could have turned all that over to the department of labor and the department of labor would have investigated and found this classification all of the money would have gone to the employers whereas none of it goes in the employees here so they should have done it then then in two thousand and twelve we filed a motion to dismiss said it's a complex worker classification case i b w knew exactly what the issues were there were in all the affidavits and they put it in their complaint in their complaint and they told the court it represented to the court that it was not a complex classification case when it wants and then when judge tango when they asked for expert witnesses five years later and we said well if they need experts it must be a complex marketplace of a patient case he referred it told them to refer to the department of labor they did nothing for a year it wasn't until it was reassigned to judge here any in september of two thousand and eighteen the judge can he basically gave the i b e w approximately thirty days to refer it to the department of labor so our position is this is this and that the department of labor would handle it they never would have found intent or reckless disregard when they had already audited and basically given farkle a pass on the classifications and if  found anything it certainly wouldn't have been material and they would have got an estimate of damages so we resubmitted that this is nothing and has never been anything more than basically economic extortion by i b e w against a nonunion contractor who will over time but i would like to post ask you to speak to your materiality issue materiality process certified payrolls d and give my colleagues an opportunity to explore anything they wish before we turn to the other side but didn't you or clients managers and your clients leadership have an understanding that the government attached to a would attach considerable importance to the classification of workers and that therefore the accuracy of payrolls certifying that workers were properly classified it the only basis for the reckless disregard was that far field track all of the different specific task by the minute that the ground when did but they understood the gretna graham who were helpers for part of their electrical would do and there are associated that with connecting it to the hot source you're saying that may be wrong but one i think important clarification is nobody ever testified that they could do anything on the job they consistent that the helper can do anything the journeymen can do as long as they have a journeyman on the crew and that's exactly what the collective working agreement says the only thing they can't do as i said are the hard work and the aerial work of which there is virtually nothing by far afield so there is in this case the it if you think a ground man has one hundred taste the grounding can do you're not going to keep records or direct your form and that the gram and can't do those tasks and as i said the interpretation is totally consistent with the collective bargaining agreement th the stipulations the party stipulated that they could assess the ground could assist in all these tasks well if the chinaman are right there on the crew and they're all pulling wire there is this thing i don't know how there and friedman did overarching question at the outset yeah sure mate and this may frame to some extent the answer is obviously the typical case that one gets false claims act where the government pays on a fraudulent claim like medicare or medicaid this is just the opposite that the government here doesn't even have to pay here the employees are injured they don't recover here the amount was a one hundred and sixty thousand dollars roughly but if you do pay and the amount of damage is already far far exceeds what necessarily you you you win or lose it just seems that it's i've never i've never had a case like this in my twenty years when the court and let me just add to that one of the ways it seemed to me to be counter intuitive is who the real a tour is and to who actually would go any of the recompence here but point so the broader offline zach framework government bargaining with an entity and not receiving their end of the bargain based upon a misrepresentation or some level of fraud meant by that entity that is basically what you have here here the government bargain with apple and company for effectively two things one is the work itself the electrical work which it did perform but there was a nd component to this bargain and that was for the bargain for public benefit that is the payment of the prevailing wage the maintenance of that prevailing wages is a broader construction case in the six arc in two thousand and sixteen where where the you had the two components of of that to use the word again that phrase of the benefit so here's a bargain for benefit of the prevailing wage to maintain which addresses the broader public policy of the davis bacon act to keep a level playing field so that doesn't become a race to bottom just because the work was performed and just because the payment was made for the price that was contained within the contract that doesn't mean the government received everything that it paid for and that's that's the l my narrow question here is assuming even assuming that there has been a clear declaration by congress  statement of retroactive intent what about the scope of the intended retroactivity well the scope is  here that there's clear tune of retroactive retroactivity as to what recruit activity as to how much retroactivity that all cases that were filed as of the effective date of era of the retroactivity legislation which was two days before the initial determination in the house and engine can continue essentially to the stated intent contained within the legislative  fair i think says it all clarifying and correcting erroneous interpretations of the law that were decided in allison engine that's what congress said they were trying to do in acting for to essentially  case not getting to the claims vs cases and i think your honors all focused on what is the the the most obvious element to to rebut the more general presumption statutory construction says claim it must mean claim there are a member of reasons all state in our brief as to why claims why congress intended claims to mean cases and just in artfully use that term the most obvious and glaring being it makes no sense otherwise the language that the plain meaning of the text is is is absurd if claims were to mean claims under the false claims act which does not exist or would not refer eight notion a legal concept that that does not find a place in this world it it would not only be absurd but it would circumvent the purpose of the of the legislation let me ask mckeon ambrose if they have questions or follow up questions as to the retroactivity issue before presumption from uniform usage cheer should not apply because of the two separate bodies having grafted to different parts f more than two different parts of that legislation yes ron that is one of many factors to rebut the presumption you can look to a number of factors again the absurdity of the of the one interpretation that the fact that in the senate report to ferrer they referred to two for that for the root for the reasons i cited in addition to others we believe that presumption is adequately rebutted it would defeat the entire purpose of the legislation otherwise  and that's you conclusion so give me give me fill in the conclusion it would defeat the entire purpose it would otherwise so what comes before that to get you to the conclusion well the intent is to  insist if you substitute the word claims with cases as we believe was was the intent in the legislation it would effectively as was address with mr friedman  correct the the the problem with the ruling in the supreme court in the original allison engine i mean that was the intent right that's the way that's the way our system works that courts you've done this that we can't work on the statute the statute says this this is our interpretation and then congress has the opportunity as they as they took here to to correct that to say ok the courts had a problem with it this retroactive clarification legislation and well this is one of the case congress probably could have been more clear here but we're dealing with the language they gave us could we did move to the misclassification issue and i'd like to know if it's your position that a contractor on a federally funded project always has drama and this goes to the very st question that you asked mr freeman on the subject is the wage determination based upon the local c b s the answer is yes that's clear within the ways terminations in the record in this case i'm not just a local  twenty six to be a but for all the craft in the trade group including labor is not because that is the case decades of departmental judicial precedent hold that the local industry practice must be considered that is what control i so i don't like to interrupt but but but you're taking a long route in the interest question that i thought was susceptible to a fairly direct answer i mean so is the upshot of your position that a contractor is always going to be at the mercy of a signatory you know to the contrary on the they are at the mercy of the the industry practice now that and  that and i create that distinction because the language of the c b a is not is not the driving force as a pilot would we would have this core belief yes the local industry practice now they can gain knowledge to your exact question do they have to talk to the unions well they should if they have any questions there are other managers mechanisms that to by which a contractor bidding on a public works project or getting a public work product can become aware of the industry practice but but the short i apologize the attempt at a short answer question your honour's they need to be made aware they need to conduct any reasonable inquiry within their power to determine what the industry practice is because they are bound by that industry practice so do they have to directly talk to the local unions that's one way to do it what little would if a c b a that formed the basis for a prevailing wage determination included a detailed schedule setting forth all of the each type of permitted and prohibited in that schedule affirmatively indicated that ground mn could  pool water would farfield still need to inquire make this outside inquiry the signator union yes about local bright yes the four feel farfield would still need to still be  be bound by the local area practice and they would need to be familiar with the lo theory that i'm aware of it doesn't exist it's not consistent departmental policy consistent with judicial decisions and it's not frankly consistent with forty five years of practice it is in fact and the the industry practice a that's the only thing that must be considered that under that scenario there is nothing to prevent a union and a contract or association through affectively bargaining away and then you know  look at every practice but you can't leave it to just the c b a we are not this is not a contract interpretation case this is not a law of the shop case this is an agreement arbitration to see if there was a violation of the c b i is the area practice that is the law themselves effectively closed the book what can and cannot be done i mean and that was a that was considered by the by the special master in his findings of fact and adopted by the district court that there you know whether there is or is not a conflict between the area practice here and the c b a is up for dispute it's not it's not for this court to consider because the issue of what the factual finding based upon you know eight days of testimony sixteen fact witnesses including it plus an expert witness on the every practice is that the area practices acts that that's a finding there's not clear with regard to that signing so any discussion as to you know pulling conduit or regarding the c d a trumping local custom or tailoring local custom are to be credited parties could contract around its obligations under the d b a to pay its workers for the work performed you need to take a broader more holistic approach as to forth and asked our case is whether or not the government regularly pays d these types of claims with knowledge that there was a violation and then said so that is is of course no there's not a single example  that that appellant can point to and secondly whether or not there is a a recognition on the part of the app hlne that these are the types of claims  for which compliance is required in order to for the government to make payment and that's that's quite quite obvious here you have the of course the regulations themselves davis bacon and the contract language can cooperate that which calls for the accurate providing certified payrolls in order to avoid withholding which is mandatory in this instance or discretionary debarment before my time runs out i wouldn't  and claims to have taken great pains to do so noting in the trial testimony from its executives that the wage requirements are quote crucial and debarment violations of wage laws would be  catastrophic it would put barfield quote out of business in page forty three dollars of its opening brief presented to this court it noted that since almost all of its work has been is has been public projects getting the bard would put our field out of business that to your question as to what evidence of ritek materiality the government would would would advance that argument it is the knowledge the admission by appellant itself that it's not going to get paid and it may be put out of business if it doesn't provide certified  but but the devil's in the details there are distinct factual findings by the fact find in this case who heard all the evidence who considered the breath of the audit that was conducted in two thousand and four and found that the department of labor that there was no evidence in the record not a scintilla of evidence in the record the department labor considered the work performed by ground then and labor's and effectively the issues at play you know that were that were  presented by way of this trial and this matter what i consider the deal or that so there was there is no evidence and this is again a factual determination made through multiple one of the two hundred and two findings of fact history in this case case employees are not going to be receiving the recovery and that fact that that recognition was discussed with  emphasis in the mt clemens opinion i i don't believe that that something more employees made the prime official showing which then would shift the burden to the employer to effectively negative the reasonable inference there wasn't there was a a reasonable inference made by the employees themsel i'm not familiar your honor to be quite frank of a a concept within clemens or or its progeny it's around for quite some time you know eighty years or  medicare let me just read you the language from the opinion of the supreme court which prompts my question the remedial nature of this statute and the great public policy which is in bunny's militate against making that burden impossible hurdle for the employees do regardless be given to the fact that it is the employer who has the duty intercession eleven  act to keep proper records of wages and hours and it goes on to see say employees seldom keep such records themselves so i'm what i'm asking you and what i'm anticipating mis will speak to is just whether or not we should distinguish mt clemens from the situation before us because it is not the employees who really have the stak of the of the opinion is is to to effectively not burden the employer the employer should not be prejudiced through the employer's malfeasance or negligence or you know why not by maintaining sloppiness recordkeeping they should be put to the task of justifying the way the work was bill's and that's where the the shifting burden comes into play but it makes me wonder no employees don't keep records i'm not sure instance in the world but the union bargaining unit represented there not on the job site and i was sponsible they're not the employer they don't direct the workforce they don't pay the employees the employee or particular public works project has not as an obligation to maintain adequate work records that the mount clemens keeps their feet to the fire so to speak so that if there is a claim made after the fact and i don't believe it just makes a lot of question coming stop in the us asked the question because of the virtual format i can't top with a lag time in the audio or not but there are times i thought maybe myself when my colleagues was on mute because the attorney who was getting in question was not stopping at all to listen to the question i just tossed that i was would have the seizure or if you even see a judge irrespective of the technology asking a question it's probably best to stop and let the question  clemens question i take it that mt clemens has been applied or that you're aware that it's been applied in davis bacon cases  before the deal well right yes you're on it so let me follow up on mr gellman's response to him to me and i'm not sure he touched on this but it may be something i'm especially sensitive to as a judge and especially as a judge who once served for a fair number of years on st instance courts be mt clemens is a method for approximating damages obviously and therefore it does facilitate the presentation of proof and the resolution of an issue where there may be some difficulty in mustering evidence that is probity of that issue admittedly it may be something of an evidentiary short cut with this at least by virtue of the burden shifting but st of all doesn't that aid the fact finding process for the court and secondly if it does why should mount clemens then not be just as applicable to a situation like this in which the employee's stake is really in those cases you have the u s department of labor who comes in doesn't know what it the employer doesn't have the required records and all of the cases say as your honor pointed out with mr gilman that the reason for shifting the burden of proof is so that the underpaid employee or worker gets any money that is due to that worker that's the underlying rationale and all the data big in our cases as well as around clemens but in order to shift the burden the employees have to put on department of labor has to put at least some reasonable testimony in information from which a reasonable inference can be provided which we're saying is not done here but getting back to the specific question that you asked this is the false claims act case it's can't be right maybe i'm or maybe that's not what you're arguing but if that were the case then every time a statute provides for recovery of triple damages we then get into a punitive punitive statute which if they do so many of them out there that cannot possibly be right but is that what you're relying upon the damage damages here maybe the department's another aspect of that with respect to shifting the burden of proof on damages what occurred in this case is that the plaintiff put on no evidence whatsoever from the employees as to even a guesstimate as to how much time they spent doing any of the specific tasks that they allege only journeymen and then they said well farfield you don't have the records well st of all so they're shifting the burden of proof under a statute there that's fairly recent years after the davis bacon act at a point in time years and years and years later where the not only under that statute that they're shifting the burden of proof under so they can give the money to the workers the statute of limitations has not only expired the record keeping requirements of also  expired and five people didn't even know the project was being investigated for anything until well after the statute of limitations and all the record keeping requirements had expired the fairway were seen as an act as two or three years davis bacon act used three years for the record keeping requirements and then from that they take using face hers which is an accounting tool which eight hours of the entire day are charged to in many cases and saying ok we'll give you credit for the fact that there's an hour and a half when they're not even on site or they're not even working but every other productive hour under that phase can six and a half hours a day because you don't have records ten years later we're now going to charge that to you and see that you go on to payments for all of those hours and then on top of that we now have treble damages and civil penalties and and estimate that isn't even close to being accurate so in that case it really really does make it punitive first of all i think one of the important points are the special master found he couldn't really tell was a close question where there was journeyman lineman work or labor work so it's one hundred and fifty nine thousand dollars if it's linemen work and it's fifty two thousand dollars of its labor is work even in the da itself it had down that laborers could lay conduits right in the prevailing wage determination all right mr freeman i don't want to cut you off completely in rebuttal will or will over that time and i would like to comment before i inquire my colleagues if they have additional questions in true rd circuit tradition although we extended our our default fifteen minutes per side to twenty minutes per side we've now spent just about an hour and ten minutes on this case that is consistent with rd circuit tradition creation being that we don't pay a great deal of attention to the clock around here and that's that's a good thing judge  think yeah but it's not one of the white the pulling of the wire is another thing but pulling wire is just pulling wire it's not energized it's not it's just a lot of big heavy long wire that they'll get a whole lot of people thank you very much thank you very much you're honest mistreatment and thank you to all of counsel this is is my colleagues and i have expressed in various ways something