twenty ten then received it again beginning in january two thousand and twelve in this case is about their claim for back pain associated relief in the interim period the only thing that changed in the inner interim period was their job great from twelve to thirteen none of the duties of the position changed i'm going to direct my comments today to our two main points first that the court heard in granting summary judgment to the government on the basis of the job description alone and second that the court should have granted summ judgment so the plaintiffs on the basis of undisputed testimony is it your contention that the john descriptions are in fact inaccurate yes well that's a cop good question the job description at the beginning talks about the general subject matter of instruction at the academy i got to find firearms and driving and spanish setter but but what is inaccurate for these people are those percentages yes we do contend that and what evidence is there that you put in or otherwise in the record indicating that the information in the jar in the position descriptions is inaccurate 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 apply the fellas a test and found that these were not exempt duties these well the specific testimony that i found at least from those copeland seemed to suggest that she was relying on the position descriptions now there are a couple of places where she people that were being where their position descriptions being reviewed but these positions this position description for these employees which not change and i thought that her to the gist of her testimony was that she relied on position explicitly but i disagree with this with your honor and in the following sense i join appendix one forty two where she talks about the f l a state test and at one forty six she is talking both about the general classification deposition fade fifty eight we had a discussion with clarke 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 them selves the things that we would do to make a fair labor standards act f l s a determination so she's talking about these people specifically and then back on page one forty two there's a there's a discussion about what do you do when you go through the see a far because the  judge firestone said that she didn't discuss the professional exemption and page forty three of rigs opposition she was asked what were the criteria under the f l so you looked at and she said whether they meet the executive the administrative profession so she did discuss those examples but is that in the context of looking at the position description or looking at the actual work i think you should mind she said they didn't vote her testimony is that she was reviewing position descriptions rather than asking someone what did they actually do what well i guess the indication that she's finding out what they actually do as opposed to what's in the positions i don't i don't think you can interpret her comments on page fifty eight of depositions the joint bendix one forty six where she says we had a discussion with mr and his staff about the nature of the work i don't think we can determine that it's a discussion about the position to scare people but granted she talked about 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 descriptions that caused the problem here which was a two thousand and one p description that was adopted after this controversy arose in two thousand and twelve and as in the aftermath of this classification review the agency said we're going to we're going to wipe out the exempt put in an exam and we're going to this but they didn't otherwise change the position description designers well that's the that's the problem what's the position description and in that regard of human nature to free now well there are those who are only versions in the the office of training development of the border patrol cademy which those of the people in the field mr messrs operation there summarizing what's happening in the course of this review and going directly to the court's question in the section on cause and effect he refers to two different perception position descriptions one for the supervisors in the field and one for the supervisors at the academy now at that time that's not clear they had not adopted this two thousand one grade thirteen position description for this position so he must be talking about other position described soon he's talking about the difference between h o two ninety two which is the field and two ninety three which is the see the eyes right well i don't think we can make that assumption for the great involved because when these people were in this position up until the time they were upgraded they had the same extrication supervisor border patrol patrol agent of course development structure of the structure grade twelve that's what we're missing here i mean just look to get to the bottom line are we believe is the difference between h o two ninety two h o two ninety three which are both in the record three to a three fifty to twenty three sixty two see one of them i i have soon forgot these two represented the different positions depending on whether they were in the field are at the  academy and one of them was initially marked exempt and the other was initially marked none except for three fifty two and three sixty two are the ones that were both marked except one i believe three fifty seven three sixty furnished to the plaintiff since case had been altered so when we went into our summary judgment mission we assumed that three fifty seven was an authentic document and that it had at had been in place at the it 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 with the people didn't and at the academy there was never any test going to that effect that was our the summary judgment that the government presented no testimony whatsoever to match the duties with the position to scripture and i would i would say that certainly miss copeland did not do that you she talked about the position description that was in effect and she testified in twenty fourteen but she did not go back and say we matched the duties in this g s thirteen thing with what the people did and i did say i would say the testimon whole counters that any way that i keep in mind this was a quote this was a case about people who work massive amounts of overtime they were going to hundred to one hundred twenty hours per pay period and what were they go it was because of the needs of the all of this was unanticipated over time because they had to be at the academy now if it seems to me you're saying something that's inconsistent if i read your summary judgment motion with what you put in the motion and you said in the motion exempt right yes but if it hadn't been if it had been the other way around if this document had been as it appeared on its face in place since two thousand and one as nonexempt that would have been a very strong piece of evidence that to show him at a fact we used to show there was a willful violation because we said here the agency had actually classified these people as not exempt for close to fifteen years but they didn't tell us later on the government brought an affidavit saying well no that's not what happened because we changed the doc so i think that i think that the position description itself does not trump what this court has said and berg versus newman you have to look at the actual duties of the position 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 and if 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 e the disparity that caused the review to take place and he said if you look in the j four sixty five the july twenty memo it says that the border  patrol cademy maintains that the same basic duties of current both position descriptions that is the nonexempt duties in the field also apply to the non except to the city academy that their basic supervisory jobs are same in both places it was historically nonexempt and should remain nonexempt so that was his basic testimony that he was asked well what differences are there and the government says that well the judge called those significant differences  in say there were significant he simply said that at the academy of course they put out their pens and papers and get supplies and things like that but that their basic duties the primary duties which is the test of the f a let's say are the same as the people in the field and he  qualification to become an instructor are the same just to become a a border patrol agent high school education is required is all and so specifically in opium to regulations that's not sufficient to be a learned professional you have to have a course which is akin to a degree or something like it that leads to an advance or to figure it and as in the this is the border patrol academy is virtually identical to the federal law enforcement training center in gl element has to be met your honor to typically the spanish instructors come in with the facility but but those there is no there was nothing in the record to show that the training at the academy to become an instructor was anything education the status of long training course what we should hear from the government now that will restore some of your time as you make your own the court of federal claims properly granted summary judgment and this court should affirm there's never been any dispute that the main responsibility of the balance in this case was to provide classroom instruction and that is the basis on which the court applied the plain language of the regulations finding that the teacher exemption applies here this appeal is much more about the summary judgment standard that it is that out the f l there isn't some question of statutory or regulatory interpretation for the court to to make here regarding the f s a appellants are arguing that the trial court failed to apply the summary judgment standard properly but the court did appellants keep saying that the evidence wasn't enough to meet the government's bird but as to facts that were undisputed during oral argument the court repeatedly confirm with plaintiffs that there weren't disputes about what these individuals did that there wasn't a problem with the position description or mr phase argument and the only thing he has identified during his argument explained that both the differences in a summary fashion and wasn't great detail but differences between the supervisory border patrol agents who worked in the field versus the ones at these academies and it made clear that they positions scription thank you i mean that's that's basically your case your honor there's no question about it the position description was a detailed in this case this position description was a real the count of what the what the plaintiffs did and it was more detailed than the other evidence in your contention is that in the byrd case for example the position description was much less detailed is that our contention is that in that case like some others the position description was found inadequate to meet the needs of what was needed to be decided in that case that holding should not be interpreted as setting some different summary judgment standard for f l it's a cases where 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 the first we were not the first ones to cites of the position description in this case starting with your answer is not suggested they stand 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 was deemed to be insufficient in of itself to prove that the government needed so different from this one for what precisely the law is that comes from for and why it doesn't apply here and so we would go to the language in burke and looking at at five o three where further explained that the record in that case the record provides little if any evidence of appellant supervisory or managerial functions on a daily basis and so as we distinguish that to this case in that case we were talking about one different positions we're talking about electronic technicians not teachers we're talking about the administrative exemption not the teacher exemption as we compare that we really do think that berg was a holding that's limited to it facts and if there's not some sweeping proposition of law as we compare those facts to this case here we've got the teacher exemption that's what's at issue and it was never in dispute from the original complaint 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  it would seem strange if you are a critical point of distinction or at that only apply to administrative and and executive positions but not to teaching positions which is what i heard you say a minute i mean that would seem like a very strange idea your honor i definitely want to clarify we have a two point response this the first is that we do not think that burke is properly interpreted as saying that this issue descriptions can never suffice we don't think that's the right way to interpret that precedent that's point number one point number t even if that were the rule that's not what happened here we have different facts here we wasn't just the position description here we had something that was squarely addressed and undisputed and it met the requirements of what was to be decided this case actually could have been decided on the cleanings from the original complaint it was made clear that plaintiffs provided classroom instruction and that's what they did a day so we didn't need to figure out well what was fifty fifty one percent of their job it was all along clear that the appellant's were there to provide classroom instruction and that under the plain language of the regulation meets the exemption requirement and so on that basis the court properly decided this case and it was on that basis the court got it right and this court should affirm what about the scope of the testimony why  was that because she had made the determination as the classification official for the agency that this should be switched from exemption on exams that therefore the matter was the science and the court of course disagree and so it wasn't a factual issue here there's not a dispute about the facts with respect to miss copeland's testimony she was designated under rule thirty secs to testify clearly made that change and she did she explain what she thought she explained her view of things those facts aren't in dispute they're not really even material to the decision this was a matter of applying the facts of what the pounds did to applying the brother the law the regulation so what they did and so the facts of why that change was made it really didn't and that's what miss copeland testified about really don't affect the did a lot more than simply based her decision on the job descriptions and then she repeatedly referred first back to those conversations with mr messner messer and his immediate staff so it seems  she had a heck of a lot more information when she was making for a decision and the court below did when it was me three minutes and why doesn't that potentially create a question fact it's a human predicament pollution based on her conversations with them about the nature of the  claims no dispute a fact was actually presented 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 can say oh maybe there's something to look at here but if that conclusions of a particular agency official and with respect to what was being discussed with the academy staff in particular mr meserve who was a representative of the academy and the office training and development staff court two on on thing during their exam be a different case if for example miss copeland actually testified not just that she had talked with all these different people about the work that they were doing but that she did but if there was something in here where she indicated and she found the day to day activities differed from that and the job description or something like that with that make this a very different case if we had somewhere anywhere in there elsewhere if we had something that in any way contradict ed the other evidence the position description and the other evidence if she provided that specific any some sisters that specific testimony that contradicted that or or if we had that anywhere it could be very different any sort of declaration from any one of the employees or anything absolutely any sort of a statement from a plaintiff that raised any sort of a dispute about about what they actually did this or you have a genuine issue we would have a totally different case and we could very well have a genuine issue 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 the position description itself establishes the legal right to none exempt status absolutely nationalist as i understand it their position before the court federal clint and it goes beyond it goes beyond just the failure to tell the court that there is potentially some disagreement by pointing to some particular evidence or any dispute about what these these employees did that there wasn't anything wrong with relying on the position scription appellants can't come to this court now and ask for this court to do something different the court did not make an error the court got it right in this  time thank you two two brief points one i was surprised to hear that the percentages in their position description are in consequential the government would have the burden of showing that that's what these people did now we're hearing two things one is that they did classroom instruction classroom instruction by itself is not an example or not exempt function we have to find out what the duties were so for example in that passionate case the space mission simulator instructors were deem to be non think xampp because they did not meet the standards of the professional exemption so just to say their classroom instructors well agree they did classroom instruction we do not agree that they did twenty percent force a valuation of those things if you read deposition description there on summary judgment and see that i can press we we relied on the fact that the testimony that was binding on the government was that they had done this review with the probe and people in the field and in headquarters in for is any indication that you may not hardman a stock that it's to the court that all claims and that's what i'm not saying no we didn't make that are not human in other words that the position description was not accurate because it was not