afternoon good morning rather we are sometimes sitting in the afternoon these days but good morning we have five cases i'm a calendar today claims case a veteran court a consent form to be represented by counsel and we did indeed file such a mug's toward the concert on behalf of which point now our position here is that the claims court's decision contained several clear procedure roll and substantive conflicts with square holdings of this issuance of the united states supreme court this court's the on under rule fifty six in the appropriate cases such as cell attacks birth versus nomen and indeed in the first appeal in this case of to this court the case was sent back because there were no facts facts and in this case the facts are very different from those in both ball and one of the problems with the court's decision where the government and here the government put in no facts so you have to begin the interest of what you are and that it was in the interest of the employees the government put it no facts you don't really get passed sell a tax or burke or rule fifty six because the government didn't put in the case it thought office to home yes and nobody does spirits that it was an agreed facts undisputed isn't it that these individuals your clients were using the government vehicles for that purpose that is true so for the purpose of cheating a purpose that the government needed to get to the work of the agency now here under thirteen forty four the statute says that the that such drive is essential for the safe and efficient performance of intelligence counter intelligence protective services or criminal law enforcement duties and constitutes an official purpose w or preliminary to to the work of the employees to be exact the burden to prove the exception under the portal app is on the employee are exceptions are to be read the statute was integral and indispensable to the point performance or produce of these employees now if these cars had been driven every day to the homes or peace employees so they could respond to what urgencies from home which was the purpose of their driving these cars there's no question that the employees who drove those choirs to the homes of the employees would be entitled to pay to be paid there is no reason why these employees would not similarly be entitled to be paid and indeed your honors for twenty years the office of personnel management under five  and practice to pay for this for nonexempt criminal investigators the difference with these employees this is the government wrongfully treated them as exempt that's the reason they weren't paid for their driving but we have a stipulation in our settlement with non driving aspects of the case that they were not on exam during the relevant time period precisely so a i'm sorry hard time following one where there's a fact n leaving aside for a moment to legal arguments i have a hard time understanding where this fact should mean i would think the argument here is that the judge either got it right or got it wrong submit what was required to do so but it's clear that if you're driving to yours but your office and then driving home its creed well no it isn't your honor and there's the judge  excuse for sure did the judge say that they would be compensated if they got them urgency on the what the judge did say that and frankly the judge didn't say that but there is no question that we settled that part apply to employees who brought their home cars home so they could respond to emergencies from home indeed be on that if you're commuting you may take your child or your spouse to work or do anything else these employees were restricted as to their movements they couldn't stop anywhere on a personal matter so they were utterly in the employ of the united states while they were in those cars they were not free like the ordinary commuter to stop i think agent personal business casual chat go to the cleaner do all of the other thing is backed up ordinary commuters do so there is no question but that they were in the employ of the government could be beside a case where somebody was in an accident the court said well obviously this was in the course of the employee's employment going back and forth to work required for there to be work you may pay for may but you must pay for idle time or time spent waiting that so i think that's another basis for a direct conflict with the by the plate is doing what constitutes work under the f l i say the law is clear that the employees have the burden of proving that they work that they work overtime question here is whether the work driving example of whether the category employees are employed and whether they're covered by mistreated exemption for example and therefore not by the f a let's say all that would be the employer's burd prove that they meet the requirements of  but the burden of proving how much work was done is the employee's work and here it's not it's not really a burden of proof other than in this case i think it's not a burden of proof issue anyway in that  established that driving can be considered work in this case the court below assume we didn't dispute those things and the court decided as a matter of law that the describing did if it weren't for the fact that this issue arose as a kind of appendage of the substantive issues if the if the suit worse only to begin with about going to work driving it would have been a rule twelve twelve reflected agency's compliance with guidelines given by originally the civil service commission and the o p m in f p m letter five fifty one dish ten based on what they see understood the f l s say require the reasoning underlying that interpretation is simply inconsistent with the reasoning underlying bubble and o p m no longer it gives those guidelines saying volvo changed the law and home that's a distinction without a difference in both cases this case and that case the employees are required to drive government vehicles and it serves a government interest for the employees to do that particular reason it's not identical but here it would be no sense in saying well if the reason is because you care for the dogs then we won't call it work but if the reason is so you'll have the car available to respond to an emergency later on we will call it work i mean if anything i think be the argument for treating it as work treating driving as work is somewhat weaker in this case the principal reason is that as mr bernstein correctly noted there was a settlement in this case that covered all of the overtime all the work that the plaintiffs performed except times soley spent driving home to merely driving between homework was to be compensated so so the only thing that this appeal covers is driving time per se if but in addition the kinds of things that  describe that they have to do during the driving our century the same as those described in both that they have to remain in radio contact they they're subject to certain restrictions and so on there's really no distinction but they're all for the  forth right right here or there's no dog there just writing back and forth to their homes but being on call at any time during that time period so if they get a call when they go village we compensated from the time they left point a well they're available for quote twenty four hours a day and whether they are compensated and i mean again there are rules if you look back at that no no answer my question will be compensated from going from point a to an emergency in the middle of the night the time it takes to drive to the place of the emergency maybe not be compensated depending on whether it's closer than your home or further from your believe back to the time i left point i believe that it would it would depend on where the point is like if the if they just got home or are almost home and then they had to go the point ten minutes away which is less than to their workplace i believe they would not be compensated whereas if it's under the regulations whereas if it was a longer distance further them back to the workplace they would question the less simple question is whether they'd be compensated for the time driving from point a to point b it might depend on their point a point b or if they have to spend two hours at the emergency call they are compensated that yes mr brilliant do you think there's any problem with the naming of the various plaintiffs if there is a problem because you can if you look at the notice of appeal and it's  maybe a technical problem you look at the notice of appeal other than i guess stephen adams and one other plaintiff name you can't tell who's in who's out it wouldn't be a problem with plaintiffs it said they're appealing on behalf of steven adams and all other plaintiffs they wouldn't have to name all the plaintiffs problem here is saying they're appealing on behalf of six thousand some odd plaintiffs out of fourteen thousand and you can look at any given name on a list of fourteen thousand plaintiffs and tell whether there was a whether or not i understood there was a list that been submitted subsequently i think with the docking statement it was submitted but but the but the appealing plaintiffs were not identified in the notice of appeal  think that's that's the way it comes out based on the defect in the notes field the legal issue would be the same either way i really don't i don't have much to reasoning underlying the f b i whether five fifty one is inconsistent with the reasoning in this case and the so called custom and practice was nothing more than some agencies to the distinction here first of all it's not a the custom a practice exception isn't really happy google here anyway because what that's an poll i would say the holding in both ways that home to work driving the government vehicle as a requirement to the employer does not constitute work unless it's a company because of the scope of the settlement and what was reserved for appeal we're really not looking at additional elective it is we're looking at the driving itself but even if we were looking at additional like i don't see any activities  appellant's described that are different from the activities involved in both of what if mr adams hypothetically of those agencies i don't want to drive the car home i want to drive my own car and be able to be free to pick up the one hundred pick up my children at school or otherwise without being in violation of the regulations and it could be do that you know it's we agree that we're talking about cases where in the case of criminal investigators it's so that if at any time of the day or night the agency needs to call this agent to respond to an emergency the agent won't have to come back to the office pick up a part and then go  go straight there could be drivers on card to the investigative site i'd in theory could but he uses the government vehicle on the job he uses he may in some respects the government people is more suitable to the job so this is for the sole and unique benefit of the government the the fact that the government vehicle is used rather his own vehicle i know that's a soulmate benefit it's for the benefit of the government may benefit the employee who doesn't have to use some or he may not have a part of it may benefit the employee in a lot of ways but we don't dispute that the reason it's required is because the government gets enough of the benefit from it that the government chooses to require as in the case of thank you mr brilliant and thank mr bernstein has two and a half minutes that the page one of our reply brief there was this terrible probably made me call the plaintiffs and the rule was changed as a result of the supreme court's decision in torres in one nine hundred eighty eight so you will see a footnote three of advisory committee folks say you could do exactly what we did we responded directly to mr brilliance point about naming all of the plaintiffs and it's quite clear that our papers for judge perry are so let me say point of the portal comported lacked was to take away compensation for work which where the employer did not anticipate would have to pay that was the whole point of the point of the port application of to fifty four b and indeed that's what the labor department regulations say twenty nine c f or seven ninety point two now in addition to that mr brilliant they just employer has the burden of proof and that's the law that was the last nineteen seventy four and it's the law today it's it's the employer spurned but it wasn't approved here so that that goes to the issue of