good morning may it please the current court my name is molly elkan and i'm very proud to be here today on behalf of the bravest of america's men and women the first responders the frontline firemen firefighters of the fairfax county fire department this case was case was brought pursuant to the fair labor standards act and the most basic fair labor standards in this country is that when we were we get paid and when we w overtime we get paid time and a half that's the most basic fair labor standard and if you're an employer and you want to deny me that fair labor standards you must prove in this circuit by clear and convincing evidence that the employee is exempt from the overtime laws this entire case turns on primary job duty what is the primary job duty of these fire captains that's the number one issue and number two issue is whether that primary job duty can be determined at summary judgment the answer to the first question what is the primary job duty the answer is clear on the undisputed record their very most primary important main principal major duty is first response they have no so sorry but can i just back up once sure so are you reading this first responder regulation the same way department of labor does all it does it really doesn't do anything it just says it always was primary duty it's still primary we are reading it the same way it is the argument that we advanced in the lower court if you find at the department labor says if you find that the primary job duty is first response then the employer cannot as a matter of law meet the executive exemption standards or the administrative exemption standards maybe my question is really more for department of labor but i'll ask you to i mean it doesn't say that they're exempt if their primary duty is not out of that regulation you can but i think we're sort of stuck with the department of labor's interpretation of its own regulation that you still look to primary job duty that is the argument that we advanced but i i tend to agree as a matter of as a practical matter how can their primary job duty be anything else that i mean i just feel like the most natural thing and i won't take much more of your time on this is really a question but it's they're not exempt because their honor we would very happily go with that but if we're stuck with the department of labor's interpretation of its regulation then i think as a matter of law based on just what you said and the facts in this case that's what they do they go out every single fire call these captains every single one i don't think this court needs to look any further than three words minimum staffing complement the fire captains make up the minimum staffing compliment for the engines that they're assigned to the truck does not roll without a captain on it so the department of labor did come forward and submit a brief in response to your honor's request that it go ahead and do so to interpret its regulation and the secretary submitted one and said very loudly and plainly that the lower court got it wrong the lower court misapplied the first responder regulation the lower court failed to apply the regulation to the facts of the case and that the lower court's decision must be reversed and of course we agree with that that that ruling and their their opinion about that deal well did clarify a number of things one is what as your honor judge harris you pointed out that they are saying that if you determine the primary job duty is first response then the captains win deal i'll explain why they put this regulation into the two thousand and four visions to the regulation and that was to clarify that hey all you courts out there that have concluded that fire captains are not exempt because they are out riding trucks and putting out fires and providing emergency care you got this right so they meant to codify that that provision  you also explains that the first responder regulation doesn't sort of put forth an unlimited principle that every single person who may in a fire department go to a fire it doesn't make them all nonexempt and that's the argument that we advanced in the lower court the lower court ignored it and concluded that all based on the plaintiff's argument and even the fire chief would be not exempt because from time to time he goes to a fire scene that was not our argument we think that there are positions in the fire department where the employees are probably exempt executives and we pointed out for example the deputy chiefs the deputy chiefs are toned out to maybe eleven different types of major incidents that's it they work the twenty four hour shifts that the captains were but they t to you know fires or explosions at dulles airport and the merryweather post office but there's there's that's not the job of the fire captains the fire captains are toned out to every single type of call there is from aid illegal barbecue to trash fire they're going and they're going with their men they're putting their turnout gear they're putting on their s c b a day and they're going and they go to these calls and when they're there they're not immune from injury or pain or death because they're somehow management they undertake the same kind of risks every single day as the men and women that they supervise on the fire scene and you can look no further than the injury reports that we've submitted it's in the joint appendix there's two hundred paid two hundred injuries in the last couple of years for fire captains they are no less immune to injuries then than the women and men that they supervise and there is not a white collar executive out there i wouldn't think who is getting lacerations and contusions and cardiac abnormalities from doing fire suppression and training and physical fitness this regulation that exempt managerial white collar regulations were not meant to cover these fire captains dia well also points out that the physical fitness and the other training that the captains do alongside the nonexempt workers that's not a this training that's exactly right here are they spend one to two hours a day doing physical fitness training what you and i would think of as planks and lifting weights and running and cardio they do one to two hours alongside their crew everybody is doing what they need to do to stay fit and why do they need to stay fit so they can haul us out of a burning building or use the jaws of life and get us out of a car so that's not a management function the other type of training or honor is the the emergency response type of training where they're going to be training on new medical equipment or with a better way to do a search and rescue or to work in confined spaces or hazmat things how much is that every day that's about two hours every day ok so i mean the record is  that we're about minute by minute how we're spending captains are spending their time but it seems pretty clear that the biggest single block of time is going to the street right well the biggest single block of time in the fire station would be the two types of training the physical fitness as well as the emergency response type of training so that's about four hours a day and that would i assume your argument is that has to count  the counties expert witness who did some analysis of the algorithm call out data they say on average is an hour and a half a day going out to calls obviously it can be fifteen hours i just have one of my clients came in here after working seventy two hours in the storm jonas so it depends on the situation but on average apparently it's an hour and a half responding to calls so they're out five and a half hours and then you know they sleep there this is not an office december of last year in the geico case color and versus geico judge traxler i believe wrote the opinion that i think that what the court holds is that in f l as a exemption cases the question of how employees spend their working time is a question of fact the ultimate question of whether it applies is a question of law so here i don't think there's a dispute on the facts about what they do and that's why it could be this case should be decided on the law and we do not think the department of labor is owed any difference whatsoever with respect to their opinion about how the rule fifty six works that's not their jurisdiction that's your jurisdiction and we think that you have the obligation to decide this case as a matter of law because the facts about what they do are not in dispute the county did not dispute the county did not dispute the the amount of time they spend doing physical fitness the amount of time they spend training the amount of time they spend sleeping i mean what are these captains doing while they're sleeping are they filling out performance appraisals are they they're sleeping at the fire station so that they can do discipline their sleeping at the fire station so that when the tone goes out they can put on their equipment and their s e p a and go to harm's way that's why they're sleeping at the fire station and we think the sleep time needs to be nonexempt time so you add another eight eight hours if they're lucky the cooking the cleaning all of that is not exempt all of that is not exempt so what are we left with in terms of the exempt duties i think they said the the we did it we did some math and this was before the lower court there are two thousand nine hundred twelve hours that they're scheduled to work without working any additional shifts of that time the plaintiff captains testified and this is an rebutted they spent a maximum of twelve hours a year doing performance appraisals is that a management duty i don't even know the department of labor and mullen said it wasn't it said it was not a management duty unless the performance appraisals are relied on for promotions and the undisputed facts here are that they're not but just assuming that performance appraisals are management duty that is point four percent of the time and of course some captains testified they only spend five to six hours the are doing it and of course the lieutenants who are right below the captains in the chain of command there are nonexempt they get overtime pay they do performance appraisals clearly this performance appraisal thing is not sort of the focus of a manager the other duty that they point out as a management duty is discipline and the record is clear that these captains have no authority whatsoever to issue even a verbal reprimand for one of the men coming in late without taking it up the chain of command to the battalion chief and to the deputy chief to get approval they are one captain testified he's just the delivery boy when it comes to discipline yes they have to report  infractions but sort of the lieutenants and the technicians in the firefighters part of their job duties part of the chain of command in this paramilitary organization to report an infraction but in terms of issuing discipline they have no authority to do it without the  the debate deputy chief approving it so we had twenty one discovery plaintiffs in this case eleven i believe of the twenty one issued no discipline during the entire recovery period so of the ten or so that did it was point one percent of their time over a year three hours a year how can that possibly be their primary job duty the captain to their only category of captains who do station they call them they call them wish lists the county call them  budgets but there's no evidence in the record whatsoever that the station captains are doing any budgeting a budget is you get a pot of money or you ask for money and you'd figure out how to allocate it they have no authority to do that they have no authority to requisition of supplies the with purchasing authority what they do the captain to say is at the end of the year they put together a spreadsheet you know what we need new mattresses we need a new we need new dumbbells we we need a new table whatever it is they say the things that they want or need how much they think it cost based on a search on the internet and then somebody above them not even in operations determines whether or not they'll get it that's not budgeting that's a wish list and it takes about three hours a year so that would be point one percent of their time the only other sort of bandage meant duty that we said maybe the captains do we would agree that the captain to update station policies but this is really just a conglomeration of the policies that are put out by the chief but they make sure that there is a book put together in this in the you know like a binder put together with all the updated policies they spend about four hours a year doing this point one percent of their time so it's a it's one percent total annual of their time doing these management functions even if they are management functions i think that's a stretch so you're saying that's not disputed that is not disputed so the important also the i think the most important thing that's disputed is that the plaintiffs the captains in this case spend the exact same amount of time running emergency calls as the nonexempt subordinates that are getting f l a say overtime pay that is not in dispute they're there to be the superhero firemen to lead the men into burning buildings to get go into harm's way with their with their troops to move things around in harm's way they have hands on hose they're ventilating roofs they're kicking things around out of harm's way they're throwing ladders they're telling the guys through the ladder they're telling the guy pull the hose over there and their primary job duty is to make sure they can get the citizens out of harm's way  property in fairfax county that's what they do that's what they're paid to do that's their primary value to the county of fairfax i see my time is running out i would also just note that the safety officer captains and the  s captains the county claimed administrative exemption for them and the court below just said that they were executive employees at an exemption that was not even claimed by the county and based on this court's ruling in geico there is no way that the e please the court my name is sarah markus and i represent the secretary of labor your honour's asked the secretary to explain how his regulations apply to the facts of this case as we explained in our brief whether the executive administrative exemption applie to a particular employee depends on the primary duty of that worker and its judge harris has already asked of the first responder regulation clarify is the way that that rule operates in this particular industry it doesn't wholly change the analysis that there's still a question of what is the primary duty it makes plain that if the primary duty is emergency response the employees are are not exempt whereas if it is management bend the executive exemption would who knew for most employees this isn't going to be a difficult question many fire department employees simply are firefighters they don't have supervisory responsibilities if they're out in the field performs work such as preventing controlling or extinguishing any does not  discussion of the case law that that this clarification arose out of in the text of the regulation well i don't think it's inconsistent it's just that the preamble provides sort of more background about what the the regulation is trying to convey and the regulation is discussing sort of the first set of employees discussed in the preamble which is the actual from the front line firefighters and they are not doing management they are performing emergency response the preamble goes on to explain there are cases that address you know upper level management of people who were at work at the higher levels of the fire department and no one is saying that the fire chief even if he goes to certain emergency scenes and occasionally performs emergency response is nonexempt and if there's sort of a clear answer for many firefighters then a clear answer for people at the top of the hierarchy and what we have here is that of employees who exist in the middle and have essentially hybrid jobs and you could see one set of their functions as most important or the other and the question is which is it and i will let this go in a minute but it wasn't that long ago i remember the amendments and i remember that they were incredibly controversial right there were hearings in congress and everything and that the people who were opposing them were getting a lot of mileage out it was right after nine eleven and they were saying this is really just this would take away over time from the people who went into the buildings in new york and so d  amendments that are cutting back on overtime protection well that's certainly be misremembering i don't know the details of the hearings but that that is certainly the case for most of the employees who run into burning buildings absolutely these seem to be a somewhat unique set of employees who have both management functions and emergency response functions and of course of course the argument that we're making is that the district court was incorrect grant summary judgment to the county here and that these workers should have their chance to prove to a fact finder that in fact the most important thing that they do is emergency response and we do think that's a reasonable view of the facts in the record  we think the question of what is the primary duty is the fact that is in dispute yes although there are many undisputed facts that sort of go towards that ultimate analysis the relative significance of the duties the question about what's important is factual and is clearly sole charge regulation where one of the proposed one of the original proposals would have made it easier to apply the executive exception to anyone who is in charge of like a freestanding facility and the firefighters unions came in and said that's your right because that would mean that a supervisory shift supervisor might suddenly become exempt and that can't be right and you well agreed and said right that's obviously where your fighter ship supervisors are not supposed to be covered and so they took it out i mean does that have any bearing on this case at least as to shift commanders your honor i apologise i'm not familiar with that piece of the preamble so i can't speak to it but it does seem not inconsistent with  position that we're taking that there shouldn't be much like with the highly compensated employee exemption there should be no short cut here or if it's possible that someone's primary duty is emergency response there should be an analysis of whether in fact that's the case and if it is then they are not exempt even if they also have some supervisory functions case and the issue that was framed by the plaintiffs from the very get go is did the first responder regulation change the counties fire department captains into nonexempt employees and we say change because there's no real question that the captains were properly classified as exempt under the law that existed before the first responder regulation was adopted in two thousand and four the pre two thousand and four case law and the circuit had found that employees did with duties exactly like these captains managing a fire station or performing work that directly relates to management and policies of the fire department were exempt executive in administrative employees that president included hartman versus arlington county which was affirmed by this court i f first the city of alexandria also affirmed by this court and west versus in a rundle county which was decided by this court and  firm summary judgment for captains reversed the summary judgment that had found that lieutenant were not exempt and so in order to be able to argue that the district court here got it wrong plaintiffs need to show that this prior case law was overturned by the first responder regulation that that regulation was a change of law in this circuit and in the country and they simply have not shown  and they cannot because we know from the department of labor's position that this was not a change in of law and we know this because the department of labor called the declare fixation in two thousand and four in the preamble they called it a clarification in two and ten in maryland they've caught they're calling it a clarification now and what was it clarify it was clarifying that the regulations that were being proposed in two thousand and four which updated all the f l oh say regulations that defined the exemptions how these would apply to fire and fire police and rescue workers the first responder regulation was not even part of the initial notice of  added in the final rule to clarify the concerns that you judge bears identified that people were concerned that all of a sudden the line that had been in the law all along was somehow getting moved and the department said we're not moving the line the line is where it was most courts have already found that people whose primary job duty is to fight fires are exempt and people whose primary job duty is not just fi managerial are not exempt and they cited this is very telling they cited the west decision from this court they cited it in two thousand and four they cited in two thousand and ten and they're still citing it now if you look at west there is no that you can distinguish the captains in the fairfax county fire department from those plaintiffs and you can't distinguish them from hartmann or i a f f either so if the law didn't change then what makes these captains different and there's absolutely nothing that does in what does the first responder regulation mean we know what it means it means supervising in the field is not management and filling out report or paperwork based on field work isn't management or administrative but to determine whether employees exempt you must consider what are their duty use outside the field what are they doing when they're back in the station are they cleaning the engine or are they running the station and these captains the shift in station commanders it is undisputed run the stations there's no one else in charge of the station there is they get a weekly or r once or understand and i think that it would be closer question certainly these captains the reason i ask you that is it seems to me that so much of this question is determined by fortuitous circumstances how many fires  and your honors the reason we did the analysis in this record the way that we did there we said we'll give you those ninety minutes we won't argue about whether that ninety minutes is empty or not was to make it easier but what the department of labor said in the preamble in the cases that were cited there including west those plaintiffs spent far more time out in the field fighting fires and with department of labor said was supervision at the scene is still supervision it is still management it's that it can't be the only thing that makes you a manager that's what they were concerned about that directing work in the field is not management when it's performed as part of just regular firefighting work you can't establish an exemption as they tried to do in mullens with work that only happens in the field and as much as there is criticism of the district court in this case judge hilton applied the reasoning of the first responder in i the i a f f case fifteen years before there was a first responder regulation in that case he had sergeant from the police department he had a lieutenant in the fire department and he had captains and he said supervising while an important part of management is not management the lieutenant to only supervise in the field are not exempt the captains who man run the stations are exempt that was the line that the department of labor confirmed in two thousand and four we're not moving that line is what they were telling the public and if you look in the in the preamble the department labor said was that this was added in response to concerns by the unions the fraternal order of police they mentioned specifically in the preamble that they were concerned about what effect this would analysis if you go out to fires we don't need to do a primary duty analysis you're nonexempt if there was such an exempt categorical rule that was being adopted we certainly would have heard about it in the eleven years that the first responder regulation has been out there we haven't heard that because the department ever has been interpreted that way and it would not have been stuck in as part of the final rule but not in the notice the proposed rule making because that would have been a tremendous change in the law if that had happened the fact that they've cited west consistently since two thousand and four shows the confirms that the department still sees the line where it is and if you say anyone who responds to fires well that's all of operations that's twelve hundred plus people all the way up to the assistant chief and fire chief that respond to fires the only way that you can conclude whether someone's primary job duty  to fires or managing away from the station is you have to do the four factor analysis you have to look at how they how they spend their day you have to look at what is the principle importance what is the principal value in terms of how they spend their day  are you conceding that this times with physical fitness or kind of preparedness training that that kind of goes in the fire fighting no we're not conceding that and i want two things i want to clarify first of all physical fitness is a requirement that applies all the way up to the fire chief they all everyone in operations in gauges in physical fitness the difference for the captains as opposed to a firefighter is the captains get to decide in their station when everybody will engage in it they supervis staff in doing it they do it right yes and all again all the way up to the fire chief everyone is required to explain to me just as a matter of common sense if you're training to be physical fit for a while you were doing first response the part where you run into the building how does not count in the firefighting first response because the fire chief does it and they agree that the liner can i assume if we're now in the primary duty thing the fire chief has lots of obviously managerial duties that are going to take care of him i don't care what he's doing with the rest of his time for people were looking at how they spend their time how can this not count as first response time you don't have to do it but for the fact that you're going to need it when you get to the scene of the well to next to the extent of just like managing someone at the scene of a fire yes it's sort of managerial but because it is directly related to what you do at the scene of the first response can't count against you and and management and even if you do that's called and that would fall under the rule of concurrent work which for managers the department of labor has a seven special regulation that says that recognizes that managers can concurrently perform exempt and nonexempt work and the first circuit this court talked about this in grace in the grace vs family dollars case grace said she spent all the time waiting on customers sweeping the floors doing all of these other things in the court said yes but the difference here is that you get to decide when to do that and that is what part you know that's concurrent that's a concurrent duty just again i hate to pick on the text of the regulation but right we're all agreeing that the one thing apparently thing it means is that if you're you're not exempt merely because you direct the work of other employees in the conduct of an investigation or fighting a fire right but that follows it says last for example it has to be an example of the larger principle and why isn't the larger principle that stuff you do in direct further ends of your first response the first response part of your job doesn't count as management because the fire department and the police department they don't do anything else they don't have any other function other than first response there's no first responder second responder and third responder inside the fire department all of operations is trained for the singular purpose and i think even when the fire chief is doing the physical fitness training that counts as part of his first response to understand that he is never the less the manager because he also runs the fire department these guys don't also run the fire department so it matters to me much more with how i'm doing physical training preparedness that counts is their first response time and i was fired because the department of labor presumably could have drawn the line somewhere else they could have said the the line is anyone who's in a station the line that that was drawn in the preamble and the regulation is the field what happens in the field  the station is not the field it's a standalone facility and the depart so what happens in the station and they said this in the preamble operational readiness is an exempt task so why does why would physical training and other training not fall in the bucket of operational readiness ensuring the operational readiness of your team your staff your personnel is considered an exempt task that is in the preamble and again if you look at the types of tasks that they said here's what you look at to distinguish the management the managers from the roar very firefighters what the department labor said in the preamble was the managers in addition to responding to fires they also evaluate personnel performance which these captains do in force and impose penalties for violations of the rules and regulations again which these captains do make recommendations as to hiring promotion discipline or terminations these captains are involved in the just one process which is what how you get terminated out the fire department because they are civil service you can't just fire somebody without just cause discipline is a way that you you lose your job in the fire department coordinating in implementing training programs your honor asked about the two hours of training that happens that they don't go somewhere to do the training that's unusual for that to happen the daily training is they decide they come in the captains come in they determine the objective for the day they put the training regimen they decide who should deliver it it could be themselves it could be one person their staff it could be somebody who comes in from outside they're deciding that training maintaining company payroll and personnel records they do that they keep their own h r file they keep their own supervisory notes in their own h r files in the station they contain things that the central file won't even contain such as oral reprimands they only stay in the station because they get to pull them out after a year handling community complaints again the record shows that they do that preparing budgets and controlling expenditures they many captains we cited this in our brief on their resumes i prepared the budget and they do they received a memo that says you are an important part of the budgeting process tell us what your station needs they have a station fund and they have an operational fund the station fund is left to them to administer one of the captains bought a five thousand dollars kitchen table out of the station fund without anybody believing in i because they get to administer that fund that's the d donations you send in to your local fire department they keep that they would minister all those funds in that and they get to make requests for expenditures out of the operational budget controlling up ensuring operational readiness through supervision and inspection of personnel equipment and quarters again if you read any of their job applications their resumes their testimony they said operational readiness is where they spend most of their day so running a station which is again you cannot get away from west hartman r i f f if you agreed that those cases are still good lawyer there is no way to distinguish these captains the only way you get there is if you decide that the first responder regulation was a change of law contrary to what the department of labor itself is saying that it was not a change of law again also on the list deciding how and where to allocate personnel the captains decide the assignments so w staffing on the engines they're not in terms of the minimum staffing rule says an officer so in some stations for example point of higginbotham in his station he decides he's not writing the engine he's going to ride the hazmat unit in plaintive robb's station she's riding the medic truck she's not writing the engine so it's up to them to decide the assignments managing the distribution of equipment maintaining inventory property and supplies directing operation  prime fire accident scenes this was listed as an exempt task in the preamble directing operations at the scene and in every single one of these twenty one discovery planters that we were allowed to take discovery from said i am the incident commander at medical calls and we know from the record that medical calls comprise seventy percent of what they respond to their the incident commander it's seventy percent of the calls they go out to fires which is the example t miss elting likes to come back to are less than ten percent of what they go to and they may be the incident commander according to their testimony and they're in toronto to ensure they can be depending on the order in which the engines arrive at a fire but that is a very small percentage of what they actually what their operational field role is and if we know that at a scene supervising a scene is honor asked whether it was disputed in terms of how little time they spent filling out the evaluations the question that was raised to their council was how long does it take you to fill out the evaluation well of course it's not going to take them more than a couple hours a year because they're doing it at the end of the year but in terms of the other testimony the daily observation that they make the daily supervisory notes that they keep the daily adjustment formal discipline there's a dispute in terms of whether they're allowed to there's no dispute that they normally routed through the chain of command on formal discipline but as one of their captains testified if we can handle it with the fly swatter we don't need a shotgun and they try to avoid because he said to me even an oral reprimand which only says in the file for a year is part of the cascade of progressive discipline so if we can avoid issuing formal discipline we do in you can see we have many many e mails in the record of where they're doing just that sort of thing trying to avoid getting people into that world for oral because the first step is oral then it's written and then it's a third third offense and then it's a fourth offense that leads to a suspension so they really meant try to avoid that and even having an oral discipline in your file will keep you from getting a promotion in fact  one of the one of the plaintiffs mr conrad kept in contact was told there's a long email that's in there in the record i can give you the cite where he's told hey you're having all these problems with this with subordinate in your station but you know having if you issue a written discipline we're going to be before civil service to you need to make sure that you have all your ducks in a row ensues working through that and then if we if she loses a promotion we're going to be bef before civil service so it's well understood in the chief cotton also testified that standing discipline is the sole reason why someone will not get promoted off the promotional exam list and again the promotional exams also are telling because they test their ability to run the station they test their ability to administer discipline and to provide recommendations on discipline in fact if you look at the exam scenarios that are in there and the evaluation she's that follow one of the questions on which the exam takers are rated is did they make a recommendation for discipline because that is expected for their job and in their examples in the record when they didn't provide recommendation in their chief came back to them and said give me a recommendation what are you saying what are you recommending should be done in this scenario so to say that they're just the errand boys is not accurate that is very disputed doesn't jive with their own the i want to also touch briefly on the administrative exemption and we did argue the administrative exemption for the e m s supervisors and the  safety officers the district court didn't address that issue and in the courts defense this case until today was about the first responder regulation until today the sole focus of the plaintiff's case was the first responder regulation changed everything because i believe the reading the regulation literally as a if you look at it it's it's confusing i grant that and but what we have is we've got what the deal well said in two thousand and four we've got eleven years post rule no one they haven't gone to any fire department said hey you know what i know you were under this pretty two thousand and four law you've been doing it wrong all along captains we're consistent and that's also in the record the county surveyed the other departments in the area and and while some have decided as a matter of the relations with their employees to provide it many of them decide the line where we were just go back to the district court sort of skipped over the administrative it seems you say that's because it seemed like it was all about the first responder regulation but that covers the administrative exemption to it does it does and he didn't specifically address those factors because again if you look at the briefing in the district court and even now you know the administrative the safety officers that you know supervisors get sort of the back of the hand treatment even even in the playing to spree thing because they are the small component of this group but the e m s supervisors are part of the battalion management team they drive alone in s u v s don't have any staff they don't go out i mean it's our data as we provided it shows that they spend seventy minutes on the road you know responding emergencies and then only arrive sixty percent of the time the safety officers are only right thirty five percent of the time they're they're not doing emergency response what are they doing supervisors are administering b m s quality for the entire battalion of five to six stations that they manage with the battalion chief and they reviewing all the patient care reports there  together but in the administrative exemption example it's specifically ex public sector inspectors or investigators such as fire prevention or safety inspectors so how does that have any bearing on this we have fire inspectors they're not part of this lawsuit the safety and but those would be inspectors who would be going after a fire scene was over to determine what the cause was these safety officers are there to ensure personnel safety and determine how to ensure the safety of the men and women in the fire department they don't so safety and quality which are the two things that the  and safety officers do are the earth functional areas the department of labor's regulations they are administrative areas and in fact you know admit the administrative exemption is supporting management and manage one of the managerial ta defined in the regulations is ensuring the safety of the men and women who work for you know the safety of the men in the personnel so what they use their judgment discretion to determine whether this particular scene is safe they should be doing something else was this accident preventable you know someone nearly died in a in a fire could we have done better with that but they're not investigating you know i see my i'm sorry they're investigating the cause of the fire they're investigating what is in their purview in terms of if they're on a close call committee or the accident review board they would be doing investigation in that respect but not in the way that it's in the elation i see that my time is over thank you think i want to start by addressing judge traxler is questions about isn't this really just a function of firefighting how much time they're back at the station and not thank god seventy five percent of their time going out and fighting fires in fairfax county you are not the first judge to sort of analyze that there's a decision called barrows versus the city of chattanooga where the case presented identical facts to the ones here there was a captain he was the highest ranking officer in the station he was  supervised lower ranking officers he reported directly to the battalion chief he was assigned to an apparatus he worked with this is subordinates every day he and the rest of his team spent more time in the station than in the field because that is the nature of the job and when dispatch the barrels captain rode on the apparatus with the other members of his team and he participated in firefighting activities the court in that case said that while running into burning buildings or performing r may not constitute the largest majority or percentage of the plaintiffs time this is because of the nature of firefighting and this is a quote the nature of plaintiff's job as is the nature of the job of every frontline firefighter is generally to wait any given day for a firefighter they consist of extended periods of boredom punctuated by periods of urgency and moments of terror simply put plaintiff and his subordinates with the responsibility of interrupting what ever other task or activity they may have been involved in to respond to the fire or emergency call thus plaintiff fire fighting duties were clearly the most important certainly a fair test of what is the most important duty what do you put aside what do you drop in order to do something else and what do you drop every single time the tone goes off you drop everything that's the most important thing they do and they go on these calls to be the leader on the call to direct the work in the field so i think that is a fair assessment of primary duty in the context of the first responder regulation and in the context of what these men and women do every day in the field would say that you know time is not the most important thing the department of labor says in its amicus brief here that the most you look to what is the most important duty and because of the nature of fire fighting the time they need to be at the station these captains if in between the fires that they're running and them urgency calls that they're running so that they can come to the next one nobody can predict when the next fire is going to happen or how long it will take so their primary job duty is to be ready through the training and the physical fitness and then to respond as efficiently and safely as possible i would like to also address the concurrent duty question i think judge harris asked the department of labor has very clearly stated that it doesn't apply in the  first responder context in the mullens case the department later labor submitted it meet this brief in the second circuit court of appeals and we would commend you to that we cited in our briefs and the court found in that case based on the department of labor that the police sergeants who spend the same amount of time in the field as their subordinates who but who had extra duties including doing performance appraisals on a monthly basis issuing reports to commanding officers being responsible for subordinates their appearance punctual the the sergeants performed in that case even while they were performing exempt managerial work they set aside the managerial work and said that the primary job duties law enforcement and they are not exempt they're entitled to overtime pay so we respectfully request here that you reverse the lower court's decision and you enter summary judgment in the captain's favor