three minutes for rebuttal and may it please the court the question presented here is whether time spent by call center employees booting up their computers and loading job critical software tools is compensable one of the f l say in the portal act the answer is yes the employer in this case is asking this court to do two things that are unprecedented st it asks the court to announce a novel and categorical rule holding that work is not commenced until employees have accessed the innermost reaches of the employer's computer system and nd asks the court to disregard the plain text of the governing statutes by invoking the judge made de minimus doctrine a step this court notably has never and the supreme court has given us a helpful definition these are activities that are controlled or required by the employer and promote and primarily for the benefit of the employer and the answer here is mr hazell can i just ask you this is a threshold question so you're trying to overcome summary judgment from the district court and i'd like to be clear on whether there are any or whether you are contending that there disputed issues fact that should have prevented summary judgment or whether this appeal involves only questions of law but the facts are stablished were just you're just making a legal arguments as point yeah let me be clear i think there are some disputed questions of fact but our contention is that they are not material disputed questions of fact so we are asking for an order from this court remanding reversing in remanding with instructions to enter summary judgment in favor of my both issues and of course i don't need to tell this court and i've seen plenty of cases where this is occurred that if this court feels differently and feels that this case needs to be tried then this court's judgment is what governs both parties in this case take a different view of it that's our view of it on the record that we've established here but i do appreciate that question let me follow up then because i'm a little bit confused on your position about the de minimus the evidence on what whether this is de minimus or not skipping least in the district courts that you contested those conclusions and in fact you rely on them both in the district court and here and that's why i asked if you were willing to concede that all of the facts have been established and this is a purely a question of law as to the de minimus issue and you sought summary judgment on that issue we did correct those cross motions for summary judgment what i'll say with respect to the expert is typically there is not expert testimony there was in this case and the appellant's agreed that the expert i want to say this exactly right that they accepted the findings of the expert with respect to what the time records show and so in other words if we're conducting a measurement between timestamp and timestamp be then it absolutely there is no dispute we think that those measurements are accurate that that would purely be a question of law there are some conclusions in the expert's report that that we don't agree with but we think that it's just in light of the summary judgment standard we highlighted them in our brief for example the expert the st thing the expert measures is this in provide a timestamp this is one of the layers of software that these employees have sounds the way you described it was a little narrower than the way i thought it was so you did not generally at any point just say we accept that expert you you always were very precise that it was only as to what the time records show is that's right that's but that's absolutely correct as you can imagine a hypothetical case where why we don't even agree with the arithmetic we don't even agree with the math we're not talking about that here what we're talking about is the measurements themselves we agree with now there are there's a little bit of dispute about out how those measurements fit into what the f l s requires because the expert used this to have percent measurement when it should have been the average and so forth and of course everyone agrees that that precisely is my question did you accept to the ten percent minimum approach and even though you've all of tried to explain it i'd  still like to hear three sens english explanation of that well the answer your question is no and what we what we accept it is what the time records show so in other words it's the hard underlying data you know clocked in at this time swipe their badge at this time that's what we have accepted and look the analytical touchstone of the fair labor standards act is the average amount of time it takes that's what the supreme court measured tyson versus buffet so you did not except the median ten percent tiled approach evaluation correct that is correct then you know in a couple of words describe what that approach is i'm sorry which approach the median to percentile approach short for the best way to describe this is with an analogy i read the other day that vanguard did a study and that the median amount of money in a for a one k account in vanguard is something like twenty thousand dollars the mean amount is closer to one hundred thousand dollars that's because there are a few people well more than a few but some people who have a significant amount of money where is there is a large number of people that are closely bunched at the bottom well i think we know the difference between median and me my question is what it's as clear as i can state it in this case temp percentile literally means what is the measurements where ninety percent of the data set is longer and ten percent of the data s shorter it just identifies that point in the data set so it's a very short measurement given the data set the problem here is that what the f l s say ultimately cares about is the average amount of time spent and that's what the court has stated tyson forty four cents per way and i wasn't clear on the derivation that there wasn't any talk about ten percent or median at that point but is that sort of implied that you're relying on  the ten percent to get that number no so what what went into that number is just the statutory formula which i believe we quoted in our brief at that same point so you take the hourly rate  swipe and when there was a swipe and so forth so our position on this i don't want to get bogged down i do appreciate these questions aren't alternately are our position is that these are the sort of factual skirmish doesn't matter because everyone agrees that there was you know whether it's three minutes or five minutes there's some chunk of time that's unpaid and with respect to the terms of the de minimus doctor to maybe an attorney that now it really just doesn't matter the the  get at work in order to apply the sri factors that we apply to decide whether this is de minimus we do need to know what amount of time are we talking about because one of the factors is the aggregate amount of time or damages i guess that we're talking about here and you can't do that without calculating the amount of time that is at issue and it appeared to me that you had conceded for instance that the aggregate amount of time was referring directly to the de minimus regulation which says an employer may not arbitrarily fail to count as hours worked any part however small of the employees fixed a regular working time and it's because of that regulation that ultimately that's factual skirmish doesn't matter when you have a scenario like this where it's time work each and every individual shift by thousands of employees as a matter of company policy over a period of years in a controlled environment where it would be extraordinarily easy to estimate that amount of time it doesn't matter an employer you know hypothetically could just say i'm honest i'm going to stop paying people for thirty seconds per just to see if you know courts will go along with it and the answer under the regulation is you can't do that you can you can't do five seconds like and so we do you agree with judge moore is the statement about thirty thousand dollars agreement that was the last time for everybody in the class is that right no we don't agree with that again that's not consistent with the stipulation that doesn't include all sorts of amounts of time it doesn't clue people who are not who didn't know one of the cases really you have the answer to about this simulation did you read it it has the fallacy ok many cases don't even have expert testimony and so it might be well i think it's two to three minutes per shift or i think four to four to six you know four to six minutes for shift or whatever it may be that's fine cases can be decided on that basis it's not necessary for a quarter or even a jury to arrive at this this is the exact number and of course in this case all were saying is there's a dispute you know one side is essentially interpret ing the same data to say it's two minutes the other side is just applied it now you are so going to the actual factors of three factors the district court me you tell the findings here and it want to focus on two of those factors the ministry of burden in the claims st as to the administrative burden of this case started in with plaintiffs alleging that the time to complete these pre show steps consumed up to fifteen minutes of their day at some paragraph thirty eight of their amended complaint they'll not hire an expert the expert spent hundreds of hours and trying to calculate the time it issued here pairing different software programs and even then had to put applies to successful assumptions to come to an estimate in what we estimated the time to be the one point six to two twenty seven minutes per shift and it depends on where the employee is at the various locations call center locations and the fact that we had to do that is the very evidence of the difficulty involved in trying to estimate that time so i think the district court was entirely correct to find that the administrative burden here weighs in favor of of known up by a large mart specific to the aggregate amount of the claim and even a two point two seven minutes which keep in mind is the outward bound that we're talking about here we're talking about zero dollars forty eight cents per day it at and  maximum amount of damages here is thirty one thousand five hundred and eighty five dollars and even that amount factors and some time that neither party considers compensable for instance m henderson to get that number st looked at the the badge and to come into the building and then walk to the the cubicle where the work was started so even that number is  was entered or filed by the parties one day before the the district court in or summary judgment here but i think beside the point that they would be bound by the stipulation i think you have to look at the the sequence and they agreed and in our this is the quote you were looking for earlier judge you on this is at thirty seven point if informed on that that he accepts the findings of the expert with respect to what they show any di related to this is totally unnecessary frivolous and not fortunate to the needs of the case after that well you just did in the schools and an expert witness they didn't oppose the expert they used the experts numbers in their affirmative motion they didn't contest the the material facts in our affirmative motion by all accounts it gets really really close to has to tell us as for else taking the experts  dollars in aguilar three hundred and fifty five thousand dollars but if you look at the alvarez case that went up to the supreme court the the amount of time at issue in that case was about two minutes in we're talking about eight residue two minutes we're talking about here and you compare the number of options eight hundred and fifteen in alvarez versus three hundred and thirty six dollars in the th circuit in that case said this is de minimus even despite the a amount and that particular issue wasn't appealed up to the supreme court so i know it's not a perfect comparison but even applying the the minimum wage at that time in washington state which was around five dollars to six dollars you're talking about a number  is three hundred and fifty five thousand dollars there's also there wasn't a factual record elop here or in aguilar as there is here the expert report and the the amount of time that i view are was was mostly accounted for as the court said the time clock was just beyond the security screening and it covered the entire amount of time even to the point of returning the specialized keys so i think  practicality of what he had ministry difficulties of recording the amount of the additional time do you agree that we have knowledge or accepted that we could use that employers  shift screenings and i know there is a and additional decision your decision in him and has their preferences estimates as well however you have to look at the type of the estimate that we're talking about indeed the st step miss doctrine is to st estimate the time to determine whether it exceeds the ten minute defacto threshold so if we're just accepting any estimates in the administrative burden some factor is a loser here the estimate that was calculated was a litigation estimate and again it was in response to plead his allegations that the time exceeded was around ten to fifteen minutes and so our expert the the detail that he went through in the tying intensive nature goes to why it is a mystery to flee difficult here if known that was to try to recreate what the expert it every two weeks to play it to pay these and employees we'd let haid the expert and there is some question about whether plaintiffs have accepted that expert's conclusions so i guess i'm struggling to see why that would be the easy answer here and i think that was raised in the plaintiff's brief but that in terms of administrative difficulty we've already got an estimate you can use an estimate and it's your estimate your client's estimate so i guess i'm struggling to s ministry did the it ministry to burdensome factor considers the difficulty in being able to record the time right in our experts attempt to try to recreate a recording of that time in the detailed steps that he had to take to do that is is case in point of the difficult in the end it's already been incurred that's my point i don't think you're dealing with that point which is you were you've been already made that determination and perhaps you have to revisit it occasionally but why don't you come up with if it's two minutes and twenty seconds you universally add two minutes and twenty seconds to the payroll  think that's been recognized as an option and i guess i'm not understanding why that's not an option own estimates which you claim to be correct and you have had the expert prepared with all the information the expert needed i guess i'm struggling see why that isn't an appropriate estimate and which case would the balancing on that factor end up in favor of the plaintiffs here notice more edson and i think you could look no further than judge wilkinson's concurrence and impreza on the difficulty of accepting estimates even on appeal plaintiffs have shown a propensity to challenge that estimate so if we accept that two point two seven minutes in start paying employees you i was interested in eleven thing you explained in your brief which you said the customer service representatives and initiate citrix multiple times a day now if they get paid for that why not pay them for an initiation citrix at the beginning of each day by what difference does it make if outside the brief your arms a misstatement so what they do multiple times a day is scanned in and  out using their badge and then typing a password just like you would do if you left a computer it went to sleep you come back they scan and they type in the password and it brings back up their desktop and so this is one point critical to distinguishing generalized equipment versus specialized equipment the computer here doesn't become specialized at best it till they start loading those job relevant programs which is why we intend that the the time is is not compensable from the very from the very beginning from booting up to the time of clocking in and it is uncontested that the plaintiffs are allowed to to clock him in then load the job relevant about thirty three thousand of the costs of war was comprised of taxable discovery copying costs under section nine hundred and twenty subsection for the district court did not air for years courts including the th circuit have awarded costs under section options were parties to the litigation and bound by the judgment and joint several liability is the default rule play disavow offer no evidence warranting a departure from the rule there where this is or just quickly doesn't the judgement at district court need to be a d to include the op and i news your honor i would say to the extent there was any clerical error there that the judgment did not include all the options this court could amend the judgment to include the board remanded to the district court for the court to do so they were party plaintiffs and are bound by the judgment and i think that is clear as made by the district court thank you and you're you're you're clear that  time did not include any research of the records and the initial code of what was relevant or not that the time that you are requesting here did not to obtain and produce because of the plaintiff's discovery requests and therefore the costs here were for the steps of electronic copying specifically document conversion and production to portable media there are situations out there where an estimate may not work for two reasons st you may have this similarly situated employees one has to spend ten minutes putting on gear another is five another group is  for every relevant class for every single shift if you're ever going to allow an aggregate estimate this would be the case to do it correct and i'm just i'm just trying to suggest you know just because this court has said an estimate would work in aguilar doesn't mean that you can do an estimate in every case the other reason that an estimate may be a challenge in certain cases is because the the work itself is super rare and unpredictable right if we don't know how many times a year or how many times a week an employee has to do a certain task but is really intended to get these duties that are rare and fleeting and impossible to capture i'm here not only is it not rare it's happening every single shift and the process is identical so we're casting about saying well where how would estimate not work well the real answer is it would always work in a case like this you know that it's just if if this time is compensable frankly that's game over last with respect to to the aggregate amount of time i would just remind the court the touchstone of the analysis is the amount of time on a per employee basis and this makes sense and this court has said you could look at all the employees too and i think that's sensible but we ought to be very cautious about having an outcome that diverge is based on whether someone just chooses to bring this case as an individual case for six elective action to sixteen be the collective action procedure is purely procedural of course and it would be very very odd and i think uncomfortable for everyone if you said well we got two hundred people in this case so that gets him across the finish line but this is this poor a guy who brought the case by himself it's de minimus s to him and so really the touchstone of the analysis is what matters most here which is the amount of time per play per day and this court aguilar even a dollar a week is a significant amount in the aggregate but i would just well i think we quoted another case a saying that in and i think now that pointed out an embrace and a dollar a week back in the fifty's when that case was that opinion was issued is now nine dollars ninety seven cents are a week whatever the comparison doesn't really work to a dollar a day and now let's point out we don't have anything close to nine that that would be the number today that we would accept in any case a maggot our panel pointed out very clearly each case is different so i do think that that number is significant and we do have that factor for a reason whether you look that is it your position i'm little can it's oh you're sitting in the aggregate versus the individual it's actually they're both aggregate so one is just educated across a single employee so you would essentially look at how little time a single employee worked on a you know per week per year basis whatever that may be and then the nd lens is to look at it using the total number of employees and but i was basing this and you're saying that neither lens is fully will there didn't analyse it is that what you're saying that's what i'm