violates the statute establishes a strong presumption of double damages this appeal presents the question of whether an employer can overcome that presumption when it presents no evidence of how or why it decided not to time and a half overtime pay prior to the filing of the complaint to this this case we've read the briefs so we appreciate what your argument is but  little unusual because of the statute of limitations question because the original decision was made in two thousand and seven right correct what is your view in terms of what it was incumbent on the united states that it didn't do to establish reasonable grounds for example if there was a memo in the files from two thousand and seven somebody had kept yes judge post i think that would be sufficient and we know from the records and actually currently creates a document like that when it classified the position state secrets testified to that so  documentation for more than five years or something i mean i mean the problem is that under the statute of limitations your trigger date is that two thousand and fourteen right which is seven years after the original decision with may sound a bit problematic for you well i mean what if the agency could show for example that it just didn't retain records those kinds of records for more than five years so we just don't know whether or not there was a record completed why should the government here the burden when this was the time frame well preceded the limitation me let me make several points about that so first of all this is we're operating under a statute which which creates the default rule of double damages so the employer's trying here is trying to basically get an exception or an escape from that presumption and the statute says that in order to do so it has a it has a burden of what it has to show and so the question is when the evidence is missing as you describe because of the agency failed to keep it is that going to be held against the employer or should that be held against the employees who really never had any access this information in the st place and of be expected to know why the agency had taken this action and i think that an agency another kind of consideration here is this issue is never going to rise so long as the as an agency actually pays the overtime appropriately it would never get liquidated damages issue but when it doesn't need to be prepared to to to explain why it's taking the action that it's it's taking if it's not paying overtime to an employee it needs to be prepared to explain why that's the case if it's found to be in violation and that's that's what the statute provides and and that's what we're asking the court to find here it did say that the position description could provide a reasonable grounds but it did not say that the agency proved that it actually have back grounds prior to when the lawsuit was filed because there was no evidence of that well i don't know what why do you need evidence they check the box i mean i mean they did affirmatively to the position description categorized as not covered by the  reasonable basis for that they have to prove that they had a reasonable belief that they were complying with the statute so simply checking a box doesn't get you anywhere near that showing and of course have again and again held employers to that  know if you are going to and if you're taking the risk but if you are found and up finding a violation of the f l say you're going to have to explain your conduct then you should keep those do you think you always need a memo justifying the classification or if the position description is so clear on the face that it's an example of vision you can imagine all the language you would need to put it in  position description itself facially enough to show the agenc self evident if it right to this position description and says this person is a g s fifteen supervisor their job is to supervise one hundred attorneys direct policy blah blah blah to all that kind of stuff and  and if you think there needs to be a separate document where would you ground that requirement right so the agency only have to establish good faith if it's found to file it in the statute so in the example you describe where it's so clear cut this issue is never going to arise because there's never going to be a violation of the statue for someone his supervisors one hundred dollars employees so kind of by design this would only arise when it's at least somewhat of a closer issue and so that's why i think that that well sure but that's not enough i mean some of these things you know that these some of these classifications are made years ago if not decades ago and at the time the agency justification and consultation decision may have been correct and as president of balls as it has in this area for forty years it may become incorrect and so i'm just curious as to you know why you think there's some kind of requirement for analysis that located anywhere in our president i mean it's clearly not in the pacific terms of that is this just you know your view show a good faith and reasonable grounds for believing that is after omission was was not a violation of the act so we think that means that there has to be some evidence to show what the agent what the employer thought you know what i suppose in a hypothetical case that if it was so clear cut initially and then it became less care well i think an agency would have had an obligation to track changes in the law and so it's a little counterintuitive the way the st of all the government had the burden to prove its good faith so we don't have we don't have to argue or show bad faith but the way the good faith requirements interpreted by every circuit that's looked at it is it's a little bit more than just requiring good motives that actually requires that the employer show that it undertook some specific steps to check to see if it was position description appeared to be exempt as team leader mr shays directs all aspects of surveillance operations including the director or is it your friend correct that it matters not what that that is satisfied by the position description so the court finding is that the position description has duties that appear to be exempt and that's the basis for the reasonable grounds of its decision the said we would never expected to even read the p d f we were just checking off the box because that's what we were told to do that would matter then whether this the thought that the position description w close call a could have arguably been an exam because isha right that's correct your honor the decision was made back in two thousand and seven as you pointed out before the statue of limitations period of this case and the government was unable to to to locate a witness in h r who was involved in the decision and it was on able to locate any documents beyond the position description itself  our argument is that that position description itself the document speaks for itself that that has duties on it that appear to be exempt and that the government  it kept his overtime of twenty five percent of his base salary and that original position description is part of that explanation we put on evidence of why and c i s made that decision to pay good faith has an automated process to verify that mr sze is in fact doing those duties in the position description and the court found that it was accurate that that process work and again i mean you do rely on the presumption that break it larry not we do your honor although i mean that bolsters our position which has been our position along that the document the position description speaks for itself few that we had no evidence of the who or the was this classification was made and our response to that was that we have the position description and again the position description speaks for itself and we can read the position more pointed he's saying now that not only is there no evidence of the who or the why but that there's no evidence that those duties in the position description were even considered and that's when we're bringing in the presumption of regularity that the document was signed and they're suggesting that the government employee could not read the document that she was signing and that goes a little farther than to say we have no evidence of that who are the why that original class the case was made which is which we admit that's correct but they're going farther in saying basically the document doesn't speak for itself that there's no evidence that and c i s relied on those duties in the document and we're responding more to that argument that more pointed argument that's come up on  geisha situation is that in c i s has this dedicated staff with training and experience that has a process of reviewing these position descriptions annually if not more often to make sure that those are the there whether there is evidence that there's this annual process that applies to all position descriptions that when there's a review form its review part of the process of reviewing it  verify that these still reflect the duties that the employee is doing and mr sze has these annual reviews so it was it was this particular position description was verified in this process as in the position description is not the question of whether or not those those duties were sufficient to establish exemption under the two separate and different question they are two separate questions your honor we are relying on the original description made back in two thousand and seven which we admit we don't have the who or the we don't have a memo but we're relying on  the document itself and this process that existed then and that the supervisor based on her signature reviewed it and approved it we're relying on that from two thousand and seven which is outside the statue of limitations of this case and then rely for a reasonable basis and then relying on the process of reviewing that at least annually not more for accuracy for good  combination of those two findings and wrist two factors satisfy satisfied the court of federal claims and it satisfies the statute that the employer must show a reasonable basis and must show good fa the more active steps to comply and these active steps where the reading a little further in the court's decision from or you just read was that agency supervisors are required to review an agency because we're in the liquidated damages discussion is the fact to comply i mean we accept that that the agency made the wrong call what we've shown is a good faith effort to comply with the place make sure that the position description reflects the actual duty that are being performed now the decision to classify that position as exempt as we've discussed was made back over ten years before the this case was filed and we can't put on evidence of the who or why but when you look at the actual position description there's a reasonable basis and the court found this that it contains duties that could be interpreted as falling into the administrative exemption so it's the combination of those two and this this is a unique case but it's a combination of those two findings that f l us they took active steps to make sure it followed the f l s say in that it's ongoing decision was based on the actual duties being performed and that also had a reasonable basis upon a jest of analysis of the position description and i do want to talk about one more thing that the payment of administratively uncontrollable overtime are a euro also shows and helps explain the reason why mr sze was not suggesting this is consistent with m c i and c i s is understanding of the position understanding of the overall character of the position that mr sze had this discretion that he had leadership decided when to stay on duty his team lead he decided that for the entire team and c i s does not allowed nonexempt employees to decide how long to stay on duty so this his payment of twenty five percent of his base salary as a euro over time boils down to a position description with duties that could be objectively reasonable reasonably interpreted as exempt and then a review process to make sure that that position description accurately verifies what the employee's doing press i'd like to we've talked a lot about two thousand and seven but let's kind of ignore that for now and just talk about july st two thousand and fourteen which is the st day of the relevant time period here taking into account the statute of limitations the fact is we simply don't know on that day why this agency thought it was appropriate not to pay this employees time and a half overtime pay we do not know what steps the agency has taken at that time or for the next couple of years before  filed the complaint to check whether it was complying and one fact we haven't mentioned yet is we don't even know which of the exemptions to the say the agency thought applied to this position at that time  so we think that there's simply not enough evidence to meet that stafford burden i'd like to talk a little bit about the position description because there's been a lot of focus on that  i know you want to make that argument because you get a better standard of review but throughout your presentation you've been talking about how there's not evidence to show the agency's reasoning and things like that which sounds to me very much like an evidentiary argument so if you're making the legal argument can you can you say what the legal error is and point to me specifically in the trial court's opinion where you think it did an incorrect legal standard sure so the legal error is that the court did not apply the fireman that the employer has to show that the after omission giving rise to the action was had a reasonable grounds and good faith which i'm sorry i don't i don't mean to be argumentative that's just parroting the trials or the statute too so if we're just talking about reciting the proper statutory language then i don't see any legal error and the trial court's decision if we're going on and saying whether the trial court applied it correctly and made proper factual findings of it then we're in at this world are you sure and i  apologize you're right i hadn't completed the thought which was that that language has been interpreted to mean that a court has to look at past to apply a retrospective analysis to the pretty litigation conduct so if we look at the court's thousand and seven and up until two thousand and sixteen the court relied on the position description to make its decision and if that's how you understand the opinion that i think you're right it's simply a factual issue and that's that's wrong that the evidence that simply does from ms cruz who was testifying about the agency's practices prior pretty well i know actually if you look at that testimony what she's talking about is she says that after the case was filed she looked at the position that she did not specifically look at this position description before the litigation and make a determination that wasn't what she was in there for completely but didn't she testify about agency practices pre determination of whether there was a good faith from the present time based on the president or standing or rather than at the time the decision was made no i don't think there's that statement i think you have to look at what evidence y relied on and how it is ok and then i mean again once we start talking about the on the legal standard you go back to evidence so you know i'm not going to make you concede that this is now the gentry question but i'm pretty sure i see where it is i mean i like i said i think there are there are a couple ways to understand the court's opinion either the court was simply wrong about what the evidence showed in terms of the the pretty litigation aspect of it or the court wasn't looking for pre lit a geisha in evidence which would be the wrong legal approach and i think i agree with you that you could certainly look at it through that st glance although i tend to think the court was doing the latter but i think that either way you look at it the opinion should be