ranging implications for my client plan farms who is george's leading by billion minute grower reversal of the decision below is required because plan farms was engaged in primary agriculture activities of opinions that are cited in the briefs mitchell versus huntsville wholesale sweet lake the land vs n l r b in the marshall case marshall vs golf and western industries and those cases were decided before nine hundred eighty one for the circuits but they're still binding on us aren't they yes they are brought up and they set forth certain factors that we take into consideration just records that not properly applied those factors they have to happen to your honor none of those cases are on point here and if you look at if you look at huntsville nurseries case nine hundred fifty nine  and that case the court's opinion focus extensively on the fact that the defended ran a warehouse a downtown city warehouse on canal street and purchase produce purchased roses and other pecan trees and other types of products from texas and from other states and was not actually engaged in farming in any of those products essentially that in that case the defendant had its own processing facility just a couple miles away where it processed products from his own farm but that court's decision give short shrift in sensually says yes in that case the owner of the warehouse gave counsel and advice doesn't discuss the both those cases they set forth factors don't they that the district let me ask you let me ask you this word there are four findings of fact that were made in this case yes first is that brand farms did not only onions grown by the integrated growers when i'm told that they purchased them at harvest number one number two the integrated growers bore the risk of loss which is evidence by the fact that  and tell them how to grow the onions or any of those can you tell me that any of those findings of fact are clearly erroneous the advice factor is clearly erroneous it is true that plant finds to not only onions but here you know there in concert with his own unions from the planning process through july all the way through that eight month growing period where it had its or promise in the fields giving direction from from when the plant how the plant what to plop when to when from the growers that they follow they attempted to follow that advice that they for instance decided when they were going to plant onions maybe six inches apart versus three inches are going to greater rowers bound by the advice given by b farms they were expected to follow that advice by plant farms but if we look to if we looked at the statute there's us them only on the record that they didn't always follow the advice there is testimony in the record in alice followed advisors also testimony in a record that an instance of our crews were supervising him joining the clout says they were we were in trouble with them we were integrated with them they were actually taking the direction in these onions were exclusively for buying farms these were not like the situation and and hostile nurseries of the this question it seems to me they handsful facts are perhaps even more favorable to the company than your facts are in your case in other words that hans will is a faucheux in you lose let me let me list the facts that are set out in it page two eighty eight in eighty nine and footnote to you you're familiar with it but this is what i'm reading right now is that h two eighty nine in footnote to huntsville actually had control of the land in that says at all times the gro was under the supervision of heartful as to the best methods of planting production digging grading packing and shipping  and the risk of loss was on the growers because they only paid for the good ones and not because it seems to me that huntsville is a whole lot more than just playing it by us it is  in fact the company had more control than the land had how do you respond to that plane had significant control and i would say equal control as far as how the drawing was be done i would way you distinguish on civil is that you claim that the supervision and control of the farming operations of the growers in your case is more extensive then and huntsville in my own it is it seems to me that that's wrong on the facts that the facts of huntsville are the company's control and supervision is at least is great as bland's there's no indication in huntsville  land it control of the land lease the crop to be the property of hans full at all times and under the supervision as to the best method of planting production dating so full that seems to me more extensive than in your case but if we look to what the statute requires when the statute talks about production cultivation and growing and harvest save you look to the fair reading of the statute there's no doubt that blame farms is a farmer there's no doubt that onions are agricultural commodities and there's no doubt that land farms was engaged in the growing process in concert with the integrated growers there's no requirement if you look to the fair reading of the statute under the encino supreme court case that the activities in which plan far as was engaged in me the language of the statute following the supreme court guidance and if you talk about cultivation growing harvesting and production those are all activities that land farms a farmer did on a far granted it was a land of his integrated growers but these were all activities as extensive testimony in iraq or that these were important activities and some of these growers testified that the most important part of growing was what you apply you know the directions and omar gave them as to what to put on the crop because they don't want to lose the crop they needed a viable crop and modern agriculture recognizes that those are important activities related and directly related to cultivation production and growing and those are to that why doesn't the land then pay over time to its packing shed employees when they pack a new york and utah  but not when they pack the other georgia growers onions because we have omar cruz's testimony that his work with the onion farmers in new york was no different than how he worked with the contract growers in georgia and similar only with the with and close proximity here where they are intimately involved on a day you know multiple times a week basis in the fields those onions are grown for the exclusive purpose and use of plain farms that they are in concert and integrated with those growers so you may have just thing that you that you or that plan farms is just voluntarily paying over time when when you're dealing with the new york and the utahans like that it's not acquire they don't use out yes they don't have those those operations currently are but yes there is an argument that they that those onions do not need to over time design to be paid for the processing of those so there is voluntarily paying for the the court recognize an alternative bases and in its order of pages twenty and twenty four it recognize it when farmers had both a subjective and an object of good faith belief that it was a farmer of the onions and in the court's decision below the court even recognized that they've maintained that position throughout the litigation and as the court recognized both in the post trial order and the summary judgment order that's not far from that that there was evidence in a record that that would be reasonable and yet the court than not and making a ruling on the good faith defense argument the court recognized objected object to good faith based on the alternative basis that it was a farmer but then did not issue its ruling on that restricted is really just to the letter so it recognized the basis for that good faith the same time as your post but brief you proposed landings propose findings of fact were file approach to a few days before trial and then we did a post trial brief in lieu of closing argument good morning may it please the court sara marcus i represent the secretary of labor i themes from your honour's questions that you well understand that the outcome of this case was correct as the district court understood it  trial the district court needed sound fact finding there only one of the facts that the that the court found is even disputed and it is not really erroneous there is plenty of evidence in the record supporting the court finding that omar cruz was offering advice rather than controlling the farmers during operations and moreover the district court was relying on directly applicable binding precedent from this court that controls the outcome of case so it was correct for the court to determine the planned farms was not the farmer these onions for many of the reason fight your honour's mentioned in your questions to council for bland farms as to the second issue in the case if liquidated damages as your others are aware liquidated damages are mandatory and enforcement actions like this one unless the employer can meet its burden of showing that it acted with subject of good faith and object of supposed it and it was in the proposed findings of fact and conclusions of law and order i'm i apologize i'm not certain if it appears in the filing of that occurred pretrial i know that it was not in the in the post here in brief  there was some small amount of testimony about it at trial from from troy bland but it is the employer's burden to make a showing and they were only relying on the letter in presenting their arguments to the court more over the district court although it mentioned that it believed that that plan farms had a subjective good faith in it in the argument that if lawyers were presenting litigation it didn't address whether that was sufficient to show object of reasonableness during the time period at issue i think because it hadn't been presented with that argument and again it's the employer's burden to show that it should be relieved of stand as broad discretion before it and come to a fair conclusion given the the information that the court had a bland pharms was presenting itself as having relied on the department of labor's position based on a letter from one thousand nine hundred five that it had actually lost and received again during the course of the litigation and discovery but it said that its understanding of the letter was that they were according to the department relieved from the responsibility of paying overtime and i think in a  decision that was fairly favorable to blame farmers the court said well by the time after an investigation after wages now are attempting to settle this case and explaining to the you that you owed over time under their interpretation by the time they had referred the case of their solicitor's office and filed litigation you should have been aware that you couldn't rely on the department's understanding of the exemption for a good faith belief that you were acting in accordance with the law that was there in a discussion does not show that plan farms had inquired of of legal counsel prior to it being engaged in this litigation in the investigation to determine whether that exemption applied which is the sort of evidence that that employers often show use to show that they shouldn't have to pay liquidated damages so it's not that they had that legal theory during the time that before the investigation began it was something that developed as the case was ongoing mandatory unless an employer can make a showing and so that damages were assessed because the district court exercises discretion only to relieve when farms of it's automatic burden of paying them as to the portion of time when it with thought that plan farms your honor i think it is somewhat rare that an employer would have a letter directly to it and in fact had the letter been one of the official letter signed by the administrator that could have been a total defense to to damage to back wages at that it was a farmer of the onions the letter discussed purchasing the crops before harvest and being an owner before knowing what the what crops were going to be produced was this as a different set of circumstances that was emphasized fine and in many cases where an employer is arguing that it should be relieved of the burden to pay liquidated damages their reliance would be on something other than the department it would be we sought out legal advice we consulted with an attorney understood the exemption to apply in this manner and so nothing about that understanding would change in the course of litigation so it wouldn't be the case at all in every case that the department's position would make make the difference  as as has pointed out in our brief there is precedent in the circuit for for courts was looking at where an employer is relying on the department's what the department's position either public or or in the case in particular was and at what point it was clear to the employer that the department did not agree with its its position and so that could be the basis for it's good faith and reasonable you're on our side no further question well what if we agree that land was the farmer of at least some of the contract growers onions what what should we do do we sort that out up here  we send it back to district court and this is just a hypothetical there are i think you probably need to remount to the district court for a finding of whether there was any work week when all that the employees were handling were the onion's where the exemption would have applied although i think that the record reflects that there was so much mixing that there wouldn't be one of those work weeks but i'm not certain and the district court could make a finding the as you know the damages were stipulated to and so th that district court didn't make findings about the particular mix of onions but it's quite clear from this court's precedent that if for part of any work week the packing said employees were handling onions that of which plan farms was not the farmer that the exemption pick up a moment on judge branches thought with regard to plan farms being the grower of those onions with with us integrated growers the court could look at the record and determine you know if the ruling is that when farms as they grow are those are new and there is evidence in the record whereby if it's to grow those onions then there would be no overtime do because that essentially means that for most of those periods the onions in the roughly i think it was right eighty percent of the onions and it's processing plant it is and it's package on its own land and grew the remaining you know maybe it was sixteen to twenty percent with its three integrated growers for all three of those integrated growers in two thousand and fourteen not only woodland farms involved in a process from before that onions were planted all the way through the bland farms also was involved in a harvesting century using its contractors it growing plant farms is a farmer with an agricultural commodity the onion on a far on a far right it's integrated growers and is engaged in production cultivation growing and oftentimes harvesting and for two thousand and fourteen harvesting off so it was very integrated into this in those onions are you have you know that you have argued that the mere filing of the lawsuit by the department of labor does not render bland farms reliance on the prior letter objective li unreasonable what could the department of labor have done and what if the department of labor had suggested a letter revoking the earlier letter would woodland farms have been on notice that its belief it didn't have to pay overtime was no longer objective lee reasonable blandford if it sent a notice that is not objective lead reasonable you know but i can tell you we had we had a discussion before this case was filed with the department of labor  in which it was a clear disagreement and we said well we will we will get this and we think the statute is allows for this exemption that we are the farmers of this exemption who are the farmers of these onions and you know the court recognized that good faith not just from the letter to the point where the lawsuit was filed but the wreck of course recognize that good faith all the way on that growing basis you know through the litigation through its post  whether or not to stop because of the letter the consistent good faith basis that the court recognizes present carried on through the litigation but clearly this point when the lawsuit was filed or if a letter had been sent revoking the earlier letter landforms is on notice the department of labor no longer holds the position that this is objectively reasonable as to yes as to the purchase of that is yes that's fair but that doesn't account for the alterna basis that the court recognized that essentially the threshold issue in this case that land farmers you know in the fields every day cultivating growing producing and oftentimes harvesting these onions as a farmer with an agricultural commodities not like it was a farmers reservoir you know supreme court case from one thousand nine hundred nine where the court there said that the ditch diggers essentially don't want it canals and that is in colorado we're not engaged in agriculture because all they did is they just supplied water they just they were just essentially contractors supply water what land farms was doing was not in and it was an agricultural activity it was an agricultural activity intertwined with intertwined with these independent growers on a multiple times a week for everything from where the sea gets planted how it gets planted what's happening to the soil what happens to the fields soil samples tissue samples all the way through telling them when that when it went out when to pull it up out of the ground because the heat units omar is the only person in georgia from that we can tell from the record he's the expert in vidalia onions the only person using heat units and these farmers these invented growers relied on that they follow that line and whatever omar said plough it up  now they plough it up it's now and then oftentimes we come in with the crew in two thousand and fourteen with everybody to harvest it's not like the other cases it's not like the earlier cases yes these onions were for the exclusive use  not own them at the time they were planted but there's nothing in the language of the f s a that talks about ownership there's nothing that talks about risk of loss it is entirely focused on what are the activities what are the activities of the employer that is