[00:00:07] Speaker 02:
The next argued case is number 18, 1803, against the United States, Mr. Rosenthal.

[00:00:46] Speaker 00:
Good morning, your honors.

[00:00:48] Speaker 00:
May it please the court.

[00:00:50] Speaker 00:
The claims court in this case held that the plaintiffs were entitled to no pay for two types of activities that they did during the training program.

[00:00:58] Speaker 00:
First, the plaintiffs created detailed evaluations of canines and other employees who the plaintiffs were administering training to during the regular workday, which is actually what took up most of plaintiff's time during this program.

[00:01:13] Speaker 03:
Is it your contention that

[00:01:15] Speaker 03:
Almanza and the other agents were actually directed to participate in the training?

[00:01:21] Speaker 03:
Or was the training voluntary?

[00:01:24] Speaker 00:
Your Honor, we think that the plaintiffs did choose voluntarily to apply for the course after they were solicited to do so.

[00:01:33] Speaker 03:
That kind of puts you on a slippery slope just from the very beginning, correct?

[00:01:38] Speaker 00:
Well, I would say Your Honor that the regulations, so the way that the OPM regulation is set up, that prong, it relates to

[00:01:50] Speaker 00:
subparagraph A2.

[00:01:52] Speaker 00:
Subparagraph A4 says simply that an employee is entitled to pay for productive work that they do during the training program, period.

[00:01:59] Speaker 00:
It does not say that that depends on whether the employees voluntarily chose to apply for that.

[00:02:04] Speaker 00:
And there are a couple examples of that from cases that we think are relevant.

[00:02:10] Speaker 00:
So one is a training course.

[00:02:13] Speaker 00:
This is a Sixth Circuit decision.

[00:02:15] Speaker 03:
Does the regulation that you just cited, does that

[00:02:18] Speaker 03:
Does that go to training for the current position, the requirements or obligations of the current job that Almanza had, or towards upward mobility, the possibility of getting another position?

[00:02:34] Speaker 00:
So again, subparagraph A2 is the one.

[00:02:37] Speaker 00:
Basically, let me maybe step back.

[00:02:39] Speaker 00:
What the regulation does, in our view, it sets up a few different paths for which an employee could get paid for training.

[00:02:46] Speaker 00:
So one of them, as you're saying, is that if it's a job-related training, it makes them better at their job rather than an upward mobility training.

[00:02:54] Speaker 00:
And secondly, if they're direct

[00:02:55] Speaker 00:
So that's one prong of the regulation.

[00:02:58] Speaker 03:
Are you arguing that's what this case is about?

[00:03:04] Speaker 00:
We divided into two different types of activities that the plaintiffs did during the program.

[00:03:08] Speaker 00:
So we believe that as to one type, which is the completion of these evaluations, the white sheets and green sheets, that would be analyzed under a different prong of the regulation, which is subparagraph A4.

[00:03:20] Speaker 00:
And what that paragraph says is,

[00:03:23] Speaker 00:
separate from the issue of whether the training is job-related and whether they're direct to participate, separate from that, that an employee is entitled to pay for training for productive work that they perform during the training.

[00:03:35] Speaker 00:
So in other words, even if they voluntarily chose to go to the training course, if during the course they're doing something productive for the employer,

[00:03:44] Speaker 00:
some sort of work for the employer that otherwise, perhaps, a regular paid employee would be doing outside of training, that the employee has to be paid for that.

[00:03:54] Speaker 00:
And we think that's the analysis that the court should have applied to this particular type of activity, which is the white sheets and the green sheets, which are evaluations of K-9s and K-9s.

[00:04:06] Speaker 04:
Well, that claim showed up late in the litigation, right, amending the complaint?

[00:04:11] Speaker 00:
Yes.

[00:04:11] Speaker 04:
After the late stage.

[00:04:13] Speaker 04:
I'm not certain this fine distinction on the distinction between 551, A1 and A2 and A4 was presented.

[00:04:23] Speaker 00:
Well, actually what I didn't hear.

[00:04:25] Speaker 00:
I agree with that partially, Your Honor.

[00:04:27] Speaker 00:
After discovery, when there was testimony about this activity in terms of the white sheets and green sheets, the plaintiffs amended their complaint to add that.

[00:04:36] Speaker 00:
That was before the summary judgment briefing.

[00:04:38] Speaker 00:
And then in the summary judgment briefing, after the government raised the OPM regulation in its brief,

[00:04:46] Speaker 00:
In the reply brief, the plaintiffs argued that they were entitled to pay under A4, which is the one that governs productive work in the program.

[00:04:55] Speaker 00:
And I think that is at page 8 to 9 of the reply brief that the plaintiffs filed below.

[00:05:04] Speaker 04:
So they argued there that... Why is A4 doing anything more than saying if you did training either during ordinary hours or after hours,

[00:05:14] Speaker 04:
And it was compensable.

[00:05:15] Speaker 04:
It's going to be considered hours of work.

[00:05:18] Speaker 04:
So in order to get paid, it's got to be work.

[00:05:22] Speaker 04:
So what the regulation sets up in A, one, two, and three, they were one and two, time that you spent during working hours, right?

[00:05:31] Speaker 04:
It's considered hours of work.

[00:05:32] Speaker 04:
And then you have training outside of working hours.

[00:05:34] Speaker 04:
Why is four different?

[00:05:38] Speaker 00:
So what, as we understand Prong 4, so the A1, 2, and 4 provide three different sort of paths to compensation.

[00:05:47] Speaker 00:
So A1 says if you go to a training during your regular workday, you have to get paid for that.

[00:05:51] Speaker 00:
So that's not an issue here because the plaintiffs were paid for the training during the regular workday.

[00:05:57] Speaker 00:
Then A2 and A4 could both apply to after-hours training.

[00:06:01] Speaker 00:
And what A4 does in our view is says that even if

[00:06:06] Speaker 00:
The training itself isn't compensable under A2.

[00:06:10] Speaker 00:
If the employee is performing work, that's hours of work.

[00:06:13] Speaker 00:
And then the OPM regulations also say, at 551-401, that in calculating overtime pay, you use the employee's hours of work.

[00:06:22] Speaker 03:
I have a couple questions about the sheets that we're talking about, the white and what is it, green sheets?

[00:06:28] Speaker 03:
White and green sheets, yes, Your Honor.

[00:06:31] Speaker 03:
Is there any evidence in the record

[00:06:32] Speaker 03:
What happened to those sheets once they were filled out and handed in during the during the training program yes?

[00:06:39] Speaker 00:
So the white sheets the testimony showed this is on the testimony of the 30 v6 designate I believe it starts at appendix 11 16 I know what they're orderly used for yeah, and eventually they can even be used in court right later exactly

[00:06:54] Speaker 03:
But I'm talking about these particular sheets that were filled out during the training program.

[00:07:00] Speaker 03:
What's the value of those sheets, and how are they related to work under the regulation?

[00:07:06] Speaker 00:
So those particular sheets are the ones that can be used in court later.

[00:07:10] Speaker 03:
But this is training.

[00:07:12] Speaker 03:
No one's being arrested here, right?

[00:07:16] Speaker 00:
If when those canines that our plaintiffs have trained to go out and if they find evidence of a crime, and that's presented in court, then the government needs to be able to show that this canine received adequate training.

[00:07:30] Speaker 03:
Is that eventuality ever going to occur in this instance?

[00:07:34] Speaker 00:
Yes.

[00:07:34] Speaker 00:
The record says that the plaintiffs were training canines to go into service at the border.

[00:07:42] Speaker 00:
simply a practice exercise.

[00:07:44] Speaker 00:
The canines they were training were ones that were going to be sent into service at the border after the course.

[00:07:49] Speaker 00:
And the canine handlers they were training were ones who were going to go into service after the course.

[00:07:54] Speaker 03:
So the training was real-time at the border?

[00:07:57] Speaker 00:
No.

[00:07:57] Speaker 00:
I thought it was at some training facility.

[00:08:01] Speaker 00:
I'm sorry, that's not what I meant.

[00:08:03] Speaker 00:
What the plaintiffs were doing was getting

[00:08:05] Speaker 00:
preparing these canines and these canine handlers so that after the course they would go into service.

[00:08:09] Speaker 03:
Right, so these sheets were like practice in essence, right?

[00:08:14] Speaker 03:
No, I... They don't have any value.

[00:08:16] Speaker 03:
I don't see anything in the record that indicates that they actually have a type of value that they have if the sheets are compiled as a result of actual work done at the border, for example.

[00:08:29] Speaker 00:
So again, starting at Appendix 1160, what the designee testified was that if this canine, for example, were to detect drugs at the border, then the government would have to be able to prove that that canine was adequately trained to do that.

[00:08:44] Speaker 00:
I get that part.

[00:08:45] Speaker 03:
And so that's when they would use it.

[00:08:47] Speaker 03:
Those sheets are compiled and completed in real time, in real work.

[00:08:54] Speaker 00:
No, Your Honor.

[00:08:55] Speaker 00:
Those sheets are the ones that are done in this training program, where the canines are getting the training.

[00:08:59] Speaker 00:
performed by our plaintiffs.

[00:09:02] Speaker 00:
Those sheets are the ones that the government is going to use to show that these canines were adequately trained, the ones that our plaintiffs are filling out during the course.

[00:09:09] Speaker 00:
That's what the record shows.

[00:09:11] Speaker 00:
Because of this course, it's a multi-track course.

[00:09:15] Speaker 00:
The plaintiffs are receiving training, but they're also providing training to the canines and the canine handlers.

[00:09:21] Speaker 00:
And the canines and canine handlers are then going to go into service at the border, and the government needs a record of the training that they received.

[00:09:29] Speaker 00:
So what the plaintiffs are doing is creating that record that the government can use in the future.

[00:09:34] Speaker 00:
And what the plaintiffs are also doing is filling out the green sheets that the government is going to use to assign grades to the canine handlers and decide whether to certify them as canine handlers.

[00:09:47] Speaker 00:
So this is work that is providing an immediate benefit to the employer in our view in that sense.

[00:09:55] Speaker 04:
I would like to... The court of federal claims dealt in footnote three with this issue, right?

[00:09:59] Speaker 04:
Yes, correct, Your Honor.

[00:10:00] Speaker 04:
By saying essentially this late added claim and the amended complaint at the end of the thing was simply another iteration of the training claim.

[00:10:11] Speaker 04:
Correct, Your Honor.

[00:10:12] Speaker 04:
The human beings who were filling out the sheets, that was part of their training.

[00:10:18] Speaker 04:
make certain that they knew how to fill out the sheets correctly and that sort of thing.

[00:10:23] Speaker 04:
So the way in which this issue was greeted and decided for purposes of our appeal was the Court of Federal Claims said, this is another version of your training claim, i.e.

[00:10:35] Speaker 04:
another version of your claim under two.

[00:10:39] Speaker 00:
I think that is what the Claims Court did.

[00:10:40] Speaker 04:
I think in order for you to get where you're

[00:10:43] Speaker 04:
or you've been in terms of the argument, you have to convince us that the Court of Federal Claims was wrong in treating the green sheet, white sheet as part of training, because it was clearly part of their training, because they never knew how to fill one of these things out before.

[00:11:00] Speaker 04:
Because when they were just themselves on the border with the canines, they weren't filling out any forms.

[00:11:07] Speaker 04:
So they had to go to filling out form school.

[00:11:10] Speaker 04:
I mean, that was at least the mindset of the court of federal claims.

[00:11:14] Speaker 00:
So we think that was a legally erroneous interpretation of the regulation.

[00:11:19] Speaker 00:
Did you argue before to the court?

[00:11:20] Speaker 04:
No, not of the regulation, of the conduct.

[00:11:24] Speaker 04:
The court was saying if we're talking here about certain kinds of conduct for which your clients are seeking remuneration, and some of the conduct was doing homework after hours,

[00:11:37] Speaker 04:
when the program.

[00:11:39] Speaker 00:
Yes.

[00:11:39] Speaker 04:
Category one, which we haven't really talked about.

[00:11:41] Speaker 04:
Category two was, of course, during the day, they had to fill out these sheets.

[00:11:47] Speaker 04:
And they were filling out the sheets at night, too.

[00:11:50] Speaker 04:
Yes.

[00:11:50] Speaker 04:
Right?

[00:11:51] Speaker 04:
It was also partly at night.

[00:11:52] Speaker 02:
Yes, exactly.

[00:11:53] Speaker 04:
And so you have to convince me, because I have to find error below, that the court for claims was just dead wrong to consider the filling out the sheets as part of the training.

[00:12:06] Speaker 00:
Well, we actually have a different view, Your Honor.

[00:12:08] Speaker 00:
We think that under the regulation... Do you hear where I'm coming from?

[00:12:11] Speaker 00:
Yes, absolutely.

[00:12:12] Speaker 04:
Because that's the basis of the decision that footnote three is, why we're reviewing this issue.

[00:12:17] Speaker 00:
Sure.

[00:12:17] Speaker 00:
And we agree that the record supports that these sheets had two purposes, and one was a learning purpose.

[00:12:23] Speaker 00:
But the problem, the error here, is that that's not the analysis that the court is supposed to apply under the regulation.

[00:12:30] Speaker 00:
The analysis says if you do productive work during a training program.

[00:12:33] Speaker 00:
So it's either a learning or it's work.

[00:12:38] Speaker 00:
That's not what the regulation says.

[00:12:40] Speaker 00:
And this is illustrated by the Sixth Circuit Farmer case.

[00:12:43] Speaker 00:
So this is a case involving a police officer who's learning to be a patrol officer.

[00:12:50] Speaker 00:
And for learning to be a patrol officer, they sent him out on patrol to do the patrol with a more senior officer mentoring him.

[00:12:59] Speaker 00:
And so he was actually learning to be a patrol officer, but he was also doing the patrol simultaneously.

[00:13:06] Speaker 00:
And the Sixth Circuit said in the Farmer case that he should be compensated for that.

[00:13:10] Speaker 00:
So we think where the claims court went on the wrong path here was it should have said,

[00:13:18] Speaker 00:
So yes, part of the purpose of this work is for the plaintiffs to learn how to fill out these sheets.

[00:13:24] Speaker 00:
But that's not the end of the analysis.

[00:13:26] Speaker 05:
Did you in the trial court consider separating time spent in study from the time spent with the sheets as a halfway path towards compensation?

[00:13:40] Speaker 00:
The reply brief, we did separately address the two issues.

[00:13:46] Speaker 00:
So if you look at the reply brief, I think it's at appendix 3199.

[00:13:52] Speaker 00:
OK.

[00:13:52] Speaker 05:
And these were quantified in terms of time as to how to accomplish such a split result, if that were.

[00:14:03] Speaker 00:
Yes, the plan, there was testimony about how much time was spent on each of the two categories of activities.

[00:14:10] Speaker 00:
I don't think that was put before the claims court because at that point it was, the issue was simply compensability.

[00:14:19] Speaker 00:
So there wasn't a need, they weren't looking at damages.

[00:14:21] Speaker 00:
There wasn't a need to quantify the time.

[00:14:23] Speaker 00:
I see that my time is ticking here into my rebuttal, so.

[00:14:26] Speaker 05:
We'll save some rebuttal.

[00:14:27] Speaker 05:
Did you have a question at this stage?

[00:14:31] Speaker 05:
No.

[00:14:31] Speaker 05:
Thank you.

[00:14:31] Speaker 05:
Okay.

[00:14:31] Speaker 05:
Thank you.

[00:14:42] Speaker 05:
Mr. Rossi.

[00:14:47] Speaker 01:
Good morning, and may it please the court.

[00:14:50] Speaker 01:
The trial court's decision below was well-reasoned, careful, and should be affirmed here.

[00:14:57] Speaker 01:
As your honors were just discussing, there is a question of whether the trial court should have applied 551.423, subsection A2 or A4 in this case.

[00:15:10] Speaker 01:
In two other cases, both of the trial court level, these types of activities, after-hour training activities, were analyzed using subsection A2, as we point out in a brief, as well as an arbitrator decision, as well as the 11th Circuit itself also specifically applied subsection A2 to after-hours training activities.

[00:15:30] Speaker 01:
And in one of the Court of Federal Claims cases, the full case,

[00:15:32] Speaker 01:
This court, the Federal Circuit, affirmed that case in full in terms of the analytical structure of what to apply.

[00:15:39] Speaker 01:
With regard to the subsection A4 that the appellants have raised here, the entirety of their brief below mentions or just talks about subsection A4 with regard to the claims in four sentences at appendix 31, 81, to 82.

[00:15:55] Speaker 01:
They lump all of this activity together, the studying, the green sheets,

[00:16:02] Speaker 01:
and say, this is all part of the training.

[00:16:05] Speaker 01:
They admit that this is all part of the training that these DCIC instructors go through in order to be certified to become teachers.

[00:16:15] Speaker 01:
So to the extent, as I think Judge Cleverin described it accurately,

[00:16:20] Speaker 01:
There's a specific, narrowly tailored subsection of the regulation 551.423A2 that deals specifically with training activities that occur after hours.

[00:16:33] Speaker 01:
And the appellants have already admitted, and we identify all the citation in the brief, the studying time, the completion of these green sheets and white sheets was part of their learning process to become certified instructors.

[00:16:44] Speaker 04:
Right, but he's saying it has two effects.

[00:16:47] Speaker 04:
It both is part of training for them, but from the point of view of the agency, the agency would like to know how the dog performed.

[00:16:55] Speaker 04:
Because the dog that's used in the training facility, whether it's out in Virginia or down in Texas or wherever, right?

[00:17:01] Speaker 04:
That dog's going to go out in the field, right?

[00:17:03] Speaker 04:
Correct.

[00:17:04] Speaker 04:
OK.

[00:17:05] Speaker 04:
So let's assume the dog during the training program misbehaved.

[00:17:10] Speaker 04:
That's information that's valuable for the agency to know, right?

[00:17:14] Speaker 04:
If the dog misbehaved.

[00:17:16] Speaker 01:
Presumably, your Honor, yes.

[00:17:17] Speaker 04:
Presumably.

[00:17:18] Speaker 04:
I mean, what happens if the dog bit everybody?

[00:17:21] Speaker 01:
I expect the dog wouldn't be willing to serve us, but yeah.

[00:17:23] Speaker 04:
So the point is, your adversary is trying to make a bifurcated argument.

[00:17:27] Speaker 04:
He's trying to say, yes, I will admit to you that the filling out the green and the yellow forms had two reasons.

[00:17:36] Speaker 04:
One was to train the officer to do it, and we're not asking to be compensated for that.

[00:17:41] Speaker 04:
what we're being asked for, it was work they were actually doing.

[00:17:44] Speaker 04:
Because I think Judge Raina asked some very interesting questions about whether or not the record really shows that filling out these forms had any value.

[00:17:55] Speaker 04:
But assume they do, why wouldn't it be potentially compensable under four?

[00:18:01] Speaker 01:
I think that in the analysis that this court should apply here, the regulation

[00:18:06] Speaker 01:
that should be applied is subsection A2, because it is more narrowly tailored to the specific after hours training activities.

[00:18:13] Speaker 04:
And that combined with the fact that at the trial court, they urged the court at appendix A. I appreciate what you're saying, but A4 says, time spent by employee performing work for the agency during a period of training.

[00:18:26] Speaker 04:
And we know that a period of training can have two components.

[00:18:30] Speaker 04:
One, during ordinary office hours, during hours, right?

[00:18:34] Speaker 04:
For example,

[00:18:36] Speaker 04:
If while these officers were during ordinary hours filling out these forms, they got compensated, right?

[00:18:44] Speaker 01:
I presume it'll be yes, Your Honor.

[00:18:45] Speaker 04:
Right.

[00:18:47] Speaker 04:
So the regulation A4 recognizes that your period of training can have two components, one during normal office hours and the other after, right?

[00:19:01] Speaker 01:
Correct, Your Honor.

[00:19:02] Speaker 04:
So why can't work being performed not during normal office hours, but after normal office hours that we were actually performing work, why wouldn't that be compensated on the face of A4?

[00:19:18] Speaker 01:
Well, I think that there's certainly a possibility that certain activities can be considered work, can be considered hours of work that occur after hours and could be compensated.

[00:19:28] Speaker 01:
But in this particular case, what the plaintiffs did at appendix 3181 is to say to the trial court, all of the activities that we're talking about here are hours of work under

[00:19:41] Speaker 01:
They're all related, all related in order to become certified.

[00:19:45] Speaker 01:
It's part of their learning process.

[00:19:46] Speaker 01:
And they urged the court to apply that particular subsection.

[00:19:49] Speaker 04:
And that's what footnote four reflects.

[00:19:50] Speaker 01:
I'm sorry?

[00:19:50] Speaker 04:
That's what footnote three reflects.

[00:19:52] Speaker 04:
Yes, Your Honor.

[00:19:53] Speaker 04:
And the trial court... So you're in essence saying that to the extent that they're making an argument that filling out the green sheets is not just training, but it's work that they've waived that argument?

[00:20:06] Speaker 01:
That's right, Your Honor.

[00:20:07] Speaker 01:
In fact, I mean, as we describe in our brief, the appellants

[00:20:11] Speaker 01:
who found new counsel on appeal here have raised a number of completely novel issues that they not only didn't raise below specifically, but in the case of, for instance, the Billings argument, it's an argument that they specifically urged the trial court to adopt section A2 and analyze their claims under that section and said, look, we win if the court applies subsection A2.

[00:20:34] Speaker 01:
And now on appeal, they're saying the entire section is invalid.

[00:20:36] Speaker 01:
And with regard to footnote three of the trial court's opinion, the trial court said,

[00:20:40] Speaker 01:
looking at these activities where they've admitted that this is all part of the learning process, they've not adduced any proof that this is, that it can be compensable under the particular subsection.

[00:20:49] Speaker 04:
Where did I say that?

[00:20:51] Speaker 04:
I'm looking at footnote, you're talking about footnote three?

[00:20:53] Speaker 01:
Yes, your honor.

[00:20:54] Speaker 04:
Okay.

[00:20:56] Speaker 04:
Footnote three, they introduced a new claim, right?

[00:20:59] Speaker 04:
They acknowledge it was a form of study or homework, became an instructor.

[00:21:05] Speaker 04:
As a result, okay, it's therefore going to be treated under E2.

[00:21:09] Speaker 04:
I don't see anything about the Court of Federal Claims casting doubt on the value of the work involved in the green and white sheets.

[00:21:22] Speaker 01:
Are you looking at the same picture?

[00:21:23] Speaker 01:
I am, Your Honor.

[00:21:24] Speaker 01:
I'm trying to find a section where the Court describes the presentation of their evidence as not satisfying.

[00:21:36] Speaker 01:
Oh, it's actually the paragraph immediately before it in the main part of the opinion where Judge Kaplan says, A4 requires plaintiffs to show that they perform.

[00:21:44] Speaker 04:
Hang on a second.

[00:21:45] Speaker 04:
Are we on Appendix 9?

[00:21:47] Speaker 01:
Yes, Your Honor.

[00:21:47] Speaker 04:
And what's there?

[00:21:49] Speaker 01:
The last full paragraph of the page.

[00:21:51] Speaker 04:
The last full paragraph?

[00:21:52] Speaker 01:
Yes.

[00:21:53] Speaker 01:
Begins thus, subsection 5.

[00:21:55] Speaker 01:
Thus, okay.

[00:21:56] Speaker 04:
A4, okay.

[00:21:59] Speaker 01:
The court said, in this case, the plaintiffs introduced no evidence to support such a claim.

[00:22:03] Speaker 01:
So that's what I was referencing.

[00:22:04] Speaker 04:
OK, fine.

[00:22:05] Speaker 04:
Thank you very much.

[00:22:06] Speaker 04:
I'm sorry.

[00:22:06] Speaker 04:
I thought you wasn't in the footnote.

[00:22:09] Speaker 01:
Quite right.

[00:22:10] Speaker 04:
So I think that when the court applies the proper... So your argument would be that it's the burden is on the appellant to prove that that's a clearly erroneous fact finding?

[00:22:21] Speaker 01:
Unquestionably wrong, yes.

[00:22:27] Speaker 01:
Related to this issue about waiver, I just want to mention briefly, even if the court were to consider this billings argument about the validity of the regulation as a purely legal question, this court has on numerous occasions concluded that

[00:22:43] Speaker 01:
a waiver of a legal, although a waiver of a legal argument may be prudential, when parties don't raise it below.

[00:22:50] Speaker 01:
If you look at the Nova Steel case, for example, the party actually affirmatively raised an argument in its reply brief.

[00:22:56] Speaker 01:
And this court said, even though you affirmatively raised it in your briefing at the summary judgment, we consider it waived.

[00:23:01] Speaker 01:
In this particular case, the appellants directed the trial court to apply subsection A2, as well as A1 and A4, I believe.

[00:23:12] Speaker 01:
or 551-423-D.

[00:23:16] Speaker 01:
They specifically said, you need to apply the subsection, and under it, we win.

[00:23:21] Speaker 01:
If the doctrine of waiver as applied to a legal argument is ever going to be applied in a case, then it has to be applied in a case like this, where they affirmatively direct the trial court in one direction, and then our appeal decides to reverse field.

[00:23:36] Speaker 01:
If the court has no further questions.

[00:23:41] Speaker 01:
Thank you.

[00:23:45] Speaker 05:
Thanks to Rosenthal, you have your rebuttal.

[00:23:50] Speaker 00:
Thank you.

[00:23:50] Speaker 00:
So I'd like to just respond to the argument that was just made.

[00:23:54] Speaker 00:
So page nine of the opinion is where my opposing counsel says the claims court did address this issue.

[00:24:03] Speaker 00:
But if you look at the second sentence of that paragraph, it shows the court's reasoning there.

[00:24:09] Speaker 00:
It says, the court said, even if those efforts, meaning the training, could be considered work,

[00:24:15] Speaker 00:
then parentheses, a conclusion about which this court expresses no opinion.

[00:24:18] Speaker 00:
So the court is not making a finding about whether this is work.

[00:24:23] Speaker 00:
Then the court goes on to say, it appears that such work was performed during regular duty hours for which plaintiffs were compensated.

[00:24:29] Speaker 00:
And there's no citation to the record there, because the record showed that some of that work, these white sheets and green sheets, were done after hours.

[00:24:38] Speaker 00:
That's where the claims court made a factual error in finding there was no dispute of fact.

[00:24:46] Speaker 00:
In terms of what we raised below, if we look at appendix 3181, which is the page that my opposing counsel cited to, we said below, 5 CFR 51423A4 allows for payment of compensation.

[00:25:01] Speaker 00:
Plaintiffs performed work after hours and helped supervisors produce new canine handlers.

[00:25:06] Speaker 00:
Plaintiffs also helped create new canine teams and train new canines.

[00:25:10] Speaker 00:
And then it goes on for another, it says, Plaintiffs' work products included trained canines, handlers, and teams.

[00:25:17] Speaker 00:
So we did argue that what the plaintiffs were doing as part of this course was work in terms of training these canines and canine handlers.

[00:25:25] Speaker 00:
And we think that the claims court did not analyze that correctly.

[00:25:29] Speaker 00:
At a minimum, we would ask for that issue to be sent back for a more full analysis of that particular issue.

[00:25:37] Speaker 00:
I would like to also address the other component of this, which I haven't had a chance to talk about much, which is the study time.

[00:25:44] Speaker 00:
And there, that's where we are under A2.

[00:25:48] Speaker 00:
if the court decides to apply that rule.

[00:25:51] Speaker 00:
But we think that what we argued below about that particular issue was that under the FLSA, as this court held in bold, for example, an employee isn't titled for work that the employer suffers and permits, meaning that the employer knows about the work.

[00:26:09] Speaker 00:
So where the regulation appears to, that A2 appears to require that an employee be directed to attend a training, that's not consistent with this body of law under the FLSA, which says that the standard is actually whether the employer suffers or permits the work.

[00:26:28] Speaker 00:
And we presented a lot of evidence here that the study time is something that was actually encouraged by the employer, that the employer knew about it.

[00:26:36] Speaker 00:
And in fact, the course now,

[00:26:38] Speaker 00:
has been changed to provide paid study time during the workday.

[00:26:43] Speaker 00:
So if we're looking at A2 for the study time, we think the court should not apply the prong, which says they have to be directed to participate.

[00:26:53] Speaker 00:
And there's a DOL opinion letter, which I'd like to briefly direct the court's attention to, which also addresses that issue.

[00:27:00] Speaker 04:
This is both ways.

[00:27:02] Speaker 04:
I'm sorry?

[00:27:03] Speaker 04:
The opinion letters go both ways, right?

[00:27:05] Speaker 00:
Actually, both of the opinion letters that were cited rule for the employees.

[00:27:10] Speaker 00:
One of the opinion letters had some language that the opposing side found useful to it.

[00:27:15] Speaker 04:
And the basic OPM rule, the basic principle, does recognize time that's suffered or committed to work, right?

[00:27:26] Speaker 00:
Yes.

[00:27:26] Speaker 04:
And both OPM and labor have special rules for training

[00:27:31] Speaker 00:
Yes, that's fair.

[00:27:33] Speaker 04:
And both sides recognize that whether or not the training was ordered or whether it was voluntary matters in the analysis.

[00:27:41] Speaker 00:
Yes.

[00:27:42] Speaker 04:
Both do.

[00:27:43] Speaker 04:
It just so happens that OPM looks at the voluntariness issue through a different lens for federal workers and then labor looks at it for everybody else.

[00:27:53] Speaker 00:
I would say it's actually a little more than that.

[00:27:55] Speaker 04:
But in both sets of regulations that deal with training, both labor for the entire workforce out there,

[00:28:05] Speaker 04:
considers whether or not the work was voluntary or not as a factor in deciding whether or not you're going to get it.

[00:28:11] Speaker 04:
So two regulations set up different presumptions.

[00:28:13] Speaker 04:
I understand how they work.

[00:28:15] Speaker 04:
But your overall argument that OPM should lose because it doesn't recognize, it ignores work that suffered or permitted isn't true.

[00:28:26] Speaker 04:
Because as a general proposition, the basic principle driving OPM is exactly like labor's.

[00:28:32] Speaker 04:
They recognize work that is both

[00:28:35] Speaker 04:
suffered and permitted to happen.

[00:28:38] Speaker 04:
But as I said, both agencies for entirely different workforces choose to look at the voluntariness issue when it comes to training in a different light.

[00:28:51] Speaker 04:
And the law says that there's nothing wrong with OPM having a different take on how it's going to treat government workers than how Department of Labor thinks the composite

[00:29:04] Speaker 04:
IBM, General Motors, everybody else ought to be treated.

[00:29:07] Speaker 00:
It has to provide a justification.

[00:29:10] Speaker 00:
But I think if you look at that opinion letter 2009-13, that was a purely voluntary training.

[00:29:14] Speaker 00:
Employees were not directed to participate.

[00:29:16] Speaker 00:
And the Department of Labor said that they still had to be paid for their after hours work.

[00:29:20] Speaker 00:
So we would ask you, because the plaintiffs were providing a valuable service to CBP and to the country by going to this training, that the court remand for further consideration of the appeal.

[00:29:32] Speaker 00:
Thank you.

[00:29:33] Speaker 05:
Thank you.

[00:29:34] Speaker 05:
Thank you both.

[00:29:35] Speaker 05:
The case is taken under submission.