Legal Case Summary

All right, Mr. Himmendinger. May it please the court. Geico's fraud investigators gather evidence, find whether or not claims are fraudulent, and report their findings to the adjusters who rely on the investigators findings in denying or paying claims. Making those findings is an exercise of discretion and independent judgment, and the subject matter of those findings, whether or not claims are fraudulent, is a matter of significance to Geico. For these reasons alone, the district court's conclusion that the investigators discretion and independent judgment does not concern matters of significance is not persuasive. The Sixth Circuit's decision in foster provides a more persuasive analysis of that issue, which is here for Genovo Review. I would like to make three main points about the third prong of the test for the exemption. First point, it is undisputed that making findings that claims are fraudulent or not fraudulent is part of the investigator's primary duty. The district court decision and plaintiffs brief, as well as our brief, quote, a section of the special investigations unit manual that the final step of an investigation is, quote, writing a concise and complete summary of the investigation, including the investigators' findings regarding the suspected insurance fraud and the basis for their findings. The record shows that the investigators actually do with the manual describes. Mr. Calderone, the man who started this case, said in his 2010 self-evaluation, I have handled difficult to very difficult cases, detected the fraud, and was able to prove the fraud, resulting in several arrests and profiles in the Gachee files, the Gachee files, or the SIU departments in house newsletter. Mr. Fitzgerald, the class representative for the New York class, stated in his deposition, the only thing I can put down, I found fraud or I didn't find fraud. To bolster this, we offered many investigators' reports as exhibits in this case, and they were drawn from random samples, two random samples that were included in the record. You can look at these. In many cases, these reports find that the claimant is credible, find no fraud, or find insufficient evidence to find fraud, which are different findings, but they are all important findings to make. They allow the case to go forward and be paid. If they do find fraud, they say so. Some cases they say fraud was found. We have a collection of these in page 14 through 16 of the brief. Fraud was found, or they can identify the specific nature of the fraud using language like, and these are all quotes, caused accident, appeared to be hiding something. I did not find the claimant to be credible, insured, and last driver of the vehicle were found not credible, claim did not occur as alleged. The record further shows that the adjuster's decision on a claim is based on essentially what the investigator tells them. That is not contested in the summary judgment record, and there are two functional reasons why that would be so. First is that the investigators have the expertise in detecting fraud. They are the company's fraud specialist. The second is that the investigators have the only first hand view of the evidence, including the interviews, which are central to the investigations. In fact, the adjusters do not have access to the evidence. The only thing they have access to is the investigators report, and they tend to read only the summary portion of the report, which Mr. Calderon himself stated in one of his, actually was in his exit interview when he was complaining about how hard he was working. That is like pretty sloppy. They do not read the report. The adjusters? Well, no, it is the fact that they trust the investigators to write a summary of the investigation

. They read the summary portion of the report. How to claim. Correct. They also have an oral conversation with the investigator. You would see investigators tell them their conclusions. My second main point was that making findings concerning the fraud is an exercise of discretion and independent judgment. Before I go further into that, I want to set aside two issues as not relevant to that determination. First of all, it does not matter that some of the adjusters submit their final reports to supervisors for review. And the reason for that is that the regulations specifically states employees can exercise discretion and independent judgment, even if their decisions or recommendations are reviewed at a higher level. It also does not matter that the adjusters actually process the payment or denial. And the reason for that is that regulation specifically states the decisions made as a result of the exercise of discretion and independent judgment may consist of recommendations for action rather than the actual taking of action. Turning to what the regulations do require, the regulations require that an exempt employee make a real choice as opposed to applying a predetermined standard within closely prescribed limits or following a predetermined cause of action. The Department of Labor calls what you do when you're making a decision which is already written out for you in a manual or something like that. A skill. But in this case, there is no predetermined standard where you can look up whether any givinset of evidence proves fraud. Mr. Calderone has testified. Each interview is different. Mr. Fitzgerald testified. Each case is kind of individual. Among other things, the investigators in concluding whether claims are fraudulent or not fraudulent make credibility resolutions. And I asked Mr. Fitzgerald in his deposition to describe how when he takes one of these examinations under oath which is like a deposition and then he calls the adjuster afterwards to describe what happened and he testified. They will ask me, what do you think? How did they come across? And he answered, they're telling the truth, they're telling the partial truth or they're a complete liar. They're drawing these credibility resolutions from these deposition-like interviews. They also draw inference from circumstantial evidence. They look at things like the employee's financial history to see if they have a motive to commit fraud, perhaps under water, or on their claim, on their payments. They look at the claims history to see if there's a history of doing things like that. I'm sorry, Mr. Chairman, I'm a little bit confused. Not confused. Were these cross motions? Yes, sir. So the district court denied yours and granted plaintiffs

. Yes, sir. You're here seeking in the alternative a complete reversal because you contend that in fact your summary judgment motion should have been granted and the plaintiffs denied. Correct. And then the alternative you say, send it back for what? For a trial or for what? In other words, it's- Well, the two things that could happen, you could, if you send it back, you could tell the district judge to re-examine the record which is undisputed under the correct summary judgment standard, or he could help the trial. Okay, but is this question of law or a question of fact for jury? It's a question of law. And you have the burden. I have the burden on the facts, but the facts are undisputed. But the ultimate fact, application of the law to the undisputed facts, you have the burden on that established by clearing convincing evidence. Isn't that correct? That's what- That's a couple of things about that. That's this court standard. No other circuit- Well, we're in this court. We are. That's the law here. But clearing convincing is an evidentiary standard. It applies to the findings of fact that the court makes. But it also applies in the summary judgment context to the extent that in assessing whether there's a genuine disputed material fact on which you, your client as the party with the burden of proof, could establish to the district court by clearing convincing evidence that the exemption applies. So even if we were to find some judgment erroneously granted to the plaintiff here, but we don't find that your client wins as a matter of law, then it goes back to the district court, and the district court does exactly the same thing that it's done in his summary judgment ruling, doesn't it? It determines the applicability of the exemption as a matter of law. It's a question of law bearing in mind that your client has the burden to establish all the facts necessary, including the inferences that would support a conclusion that these plaintiffs are exempt. Your Honor, I think in this case, first of all, the summary judgment standard says that at that stage all the inference should have been drawn in our favor. So the court clearly aired an interview in granting plaintiffs' motion for summary judgment. So he didn't give you the facts? No, he drew the inferences in favor. What do you want? Do you want a trial? No, I would prefer that this court exercise its right to decide the case denovo. We did not ask... Well, there are disputed facts here? No, we do not think the facts are disputed. Do you say the judges gave them the facts instead of you? No, it must be disputed. No, the judge gave them the inferences, I would say. Both the facts. Well, there's a... Your Honor, if you look at the judge's decision, the second to last paragraph of it is a characterization of the evidence, which is actually a quotation from plaintiffs' briefs. So I think what the judge did here is look at this in the light most favorable to the other questions of fact

. There are no questions of fact here, Honor. The facts are disputed. We will all disagree with the facts. No, we do not disagree. There is no disagreement about the facts. What I've just described to you about what these employees do every day is undisputed. Do you say that the facts that the judge used was taken from them? It was the characters... What do you must disagree with their version of the facts? No, I've disagreed with their characterization of what the employees do. I disagree with the characters... Those are the facts, what the employees do. You're on investigators, what they do. What they actually do is not disputed. What I disagree with is... What they actually do is not disputed as far as you're concerned, but it must have been disputed as far as they're concerned, and the judge said it was something else. No, Your Honor. Actually, if you, in their brief, they agree with us that the facts are undisputed. But in the second... Did you disagree with facts as the judge related? I disagree with the way the judge characterized the facts. The judge wrote in the second- to last paragraph of his decision where he's winding up... But they said that's where he quoted from their brief. Right, he says... That must be their characterization of the facts

. That's correct. That is their characterization of the facts. He says regulations and case laws suggest the fact that investigators know that certain claims could be fraudulent. It's not in itself established that their discretion bears on matters of significance. Well, he describes it, note that certain claims could be fraudulent. That is not an accurate characterization of the facts. They are actually dispatched to find out whether claims are fraudulent or not. And to report their conclusion on that fact... To the injustice. That's a factual dispute. Well, it's not really disputed in the record. The plaintiff admitted it. Let me ask a question so you know what to add. Okay, sorry, Your Honor. You may say the facts are not in dispute, but the inferences are... The characterization of the facts are in dispute. That's why we have trials. Well, your Honor, a trial would be a step in the right direction for me. Would be a what? Step in the right direction for me. I have an ask for one. Well, all you feel when one is unrejudgment going the other way. That's what your brief says. So can you come up here now and say, well, I really want summary judgment. I would dispute the facts when I'd like to have a trial. You'd change in your position. No, Your Honor. Well, you are. I think that the court is in hand. You want summary judgment proceedings in the district court. And you want to rule your favor

. That's correct, Your Honor. And but this court has the... So if they're disputed facts, they're not ruled your favor. And the proof is then so you haven't challenged it right. If they're disputed facts, judge the tracks were said to be the trial. There's a side to facts. Your Honor, the jury and they'll decide the facts. Your Honor, there are no actual... I mean, the reason we put all these reports... You say you read to us what the judge got wrong. The reason we put all... And you say he quoted that from the other side. Right. So it must be a dispute in the facts. No, Your Honor, there's a way of characterizing facts. There's a difference between facts and the spin you put on facts. There's a disputed spin in this case. There are no dispute about the reports that the investigators filed. That's why we put them into the evident, into the record, so that no one would have to rely on anybody's description about what the investigators do or don't do. You can read in the record in the appendices a whole compilation of these reports which show that they are making conclusions. I would take a trial over where I am now. Well, I would... I would think.

.. But you say you don't want one. I would prefer to have it resolved by this court, which I think you can do on this record and it didn't over review. Thank you. You've got some time remaining. Let's hear it from Mr. Morgan. May I please the court? The debate that I think the court was having with Mr. Hemingdinger concerns the characterization of the facts. And it was Judge Titus' view under the standard articulated in the fourth circuit that Geichel couldn't meet its burden-improve to establish clear and convincing evidence that each element of the administrative exemption plainly and unmistakably fits with these facts. It is his conclusion. And that's why Judge Titus granted our affirmative motion. But he has to respect the facts. The light most favorable to Geichel. You're right, Your Honor. But the facts have to be taken in the inferences too in the light most favorable to the non-moving party. You hear the losing party. That's Geichel. Fair enough. But they also moved for some regentment at the same time. They did, but that was denied. But you summary judgment, they have to give him the facts. And are you saying there's no disputed facts? I'm saying there are no disputed facts. What they're taking issue with is the characterization of the primary duty. Classification cases under the FLSA start and end with the determination of the primary duty. The two elements that we're debating here. The one that Judge Titus granted in our favor, discretion and judgment, as well as the one we appealed on, whether the investigators actually service the general operations of the business, both stem from what the determination of the primary duty is. And in this case, Judge Titus said the primary duty is to conduct investigations. Okay, what does that mean? What that means is a question of fact. And Judge Titus determined what that meant. And it didn't mean fraud finding. It's ironic that Geichel..

. He did find the facts. He did find the facts in... How does the judge have a right to do that on summary judgment? Because both parties said these are the facts and they are undisputed. They were cross motions. Time. One person, one party says here's the facts, my version. The other party says here's the facts, my version. And they conflict and they don't agree. So we have to have a trial resolved. That's right. And what Judge Titus concluded was there is no trial. There is no disputed fact as it relates to whether he can, as a matter of law, determine that Geichel met its burden of proof on a clear and convincing evidence, evidentiary standard, that each element, all the facts fit into each of these elements clearly and unmistakably. That is the law. That was reaffirmed in the Desmond case. Was there any consideration given to having the district court decide disputed facts on a summary judgment record? That is often done when you have these multifactored administrative type claims under FL. I say, and there's some other statues. Was any consideration given to that? No, Your Honor. And I would submit that that's what Judge Titus essentially has done. But that's the problem. You see, without Geichel's consent that Judge Titus could do that, what we're stuck with here is we have cross motions for summary judgment. Right. On an ultimate question of law, and as to your motion, Geichel's entitled to all the inferences in its favor, as to Geichel's motion, your clients are entitled to all the inferences. And we've said many times just because their cross motions for summary judgment doesn't mean the court can decide the issue as a matter of summary judgment. Practice. Understood. Okay. But I believe that Judge Titus considered all the facts and understood those standards. Well, you just said that what Judge Titus did was fine facts. Well, I think he said in relation to the response to Judge King. He did because there was because the party acts on summary Judge. But the parties didn't dispute the facts. So both parties admitted, debitiously, the do, excuse me, obviously you do dispute the facts

. No, we, this is where I do agree with Mr. Hemington, Your Honours. I do believe that they take issue with the characterization of the facts. Judge Titus in the, the last paragraph of his opinion reads, in the fourth circuit, the FLS says administrative exemption is quote, narrowly construed. And the court concludes that Geico has failed to demonstrate by clear and convincing evidence that investigators fit within the narrow administrative exemption. And therefore denied Geico's motion for summary judgment, which was correct, as you just described it. But that doesn't mean that you automatically get summary judgment. In the FLSA world, it absolutely does your honor. It absolutely does. If a moving party cannot establish present facts that support the clear and convincing standard. But you got to, that party loses. The facts of the case. Excuse me? You got to prove that those are the facts of the case. Absolutely. And the, and you could, you know, didn't file a stipulation. No, we didn't. You didn't file a stipulation. You could file a stipulation and you'd have the facts spelled out there for the district judge and for us, but you didn't do that. You both have your argument there's, what, there's a six circuit case. Is that it? There's a false, the versus nationwide. False. Was that decided on summary judgment? Part of it. But the, it was a, it was a, it wasn't. That's right. There was a trial to decide the fact. There was. There was. But here, and the six circuit paid strong deference to judge Sargis out of Columbus at on, on the appeal. And, but there were other cases, other investigator cases, the Fenton versus Farmer's case, the Ali versus Veracity case, all decided on cross motions for summary judgment in favor of the plaintiff. And so, there is case law that exists that supports the notion that the appeal that judge Titus' decision on summary judgment can be affirmed by this panel because the application of the fact to the reg, while it's Geico's burden is still a question of law. And what, judge Titus, I think, got were two briefs with facts. And looked at the facts, determined what the primary duty of the fact, of the investigators were, which is on page three through eight of its brief. And frankly, every, literally, every single citation is to Geico's managers. The judge have to actually make that determination for are they undisputed facts

. Which determination? You just said the judge determine what the principal duties are. Yeah. Did the judge actually have to determine that or are they just set out in undisputed facts? They are not set out in undisputed facts. Well, then you've got a dispute with Genoa, a genuine dispute of material facts. The judge can't make findings as a part of summary judgment. Your Honor, the judge can only draw inferences in favor of the non-moving. But there are myriad cases, at least in the FLSA world, where courts make a determination as a matter of law on summary judgment, whether the facts fit the regulation. There's a host of them. And that's all that happened here. Summary judgment law doesn't change just because you've got an FLSA case. That's true. Laws. Summary judgment is the same rule. 56 is the same. That's true, but it's ironic because in... You can walk and sit down. The two of you all can sit down and maybe you could stipulate on what those duties are. And that would take care of it. But that's not what you did here. No, we've told us that. You're right, Your Honor. We did not do that. But I'm not saying that that precludes summary judgment or the plaintiff. I'm not. Because on this record, he has considered the facts as they've presented him as well as the plaintiffs. Created to find the primary duty. And from that definition of the primary duty decided it doesn't fit. It doesn't fit discretion in judgment. As a matter of law, Geico's burden of proving clearly and unmistakably that the exemption applies they can't do. And we're going to, as a consequence, render summary judgment in the plaintiff's favor. That's all he did here. And that was the correct decision

. And the record statement of facts in pages three through eight of his brief, where he lays out the various steps of an investigator. The citations are to the top employees from Geico's SIU department. Steve Rootsback in my college. The documents that he points to to describe and define the primary duty are Geico's documents. The SIU administration and operations handbook. I mean, this is all, so the idea that, you know, viewing the light in the facts and the light most favorable to the non-movement, he didn't in this order, I would submit to this report. He gave them all the facts. The citations are to the managers and to the documents. I don't think there's one citation to the deposition of my client or any of the opt-ins, plaintiffs who were, who were deposed. The evidence came from Geico. And from that description, that definition of primary duty, he looked at the regulations found that the first prong of the primary duty tests servicing the general business operations, they met their burden on. We disagree. I'll rely on my brief for those arguments. But he then took the next step, which he should have done, which is go to discretion and judgment with regard to matters of significance. And on those facts, as he saw them, viewed, I would argue, in the light most favorable to the defendant, he ruled that the Geico can't meet its burden approved. What can you point to in support of your contention that he viewed in the light most favorable to the defendant? What I would ask... Apart from simply citing to the defendant's submission. That's what I would say, Your Honor. I'm going to cut you off. Please finish your comment. That's all you got. That he cited to the defendant's submission. Yeah. Right. And as you read his analysis, I think he weighs both arguments. But what I'm looking at in his mammarandum of order, he has background facts that begin on page two, and they go through page eight. And those are the facts that he found in connection with this motion for summary judgment. And I do believe that he viewed them in the light most favorable to Geico. I absolutely do. And then he looked at the standard that applies in the fourth circuit when you try to fit the established primary duty into this very narrow executive or administrative exemption element and said it doesn't fit. And so as a consequence, there's nothing for a jury to sort out because this is my job. This is my job over here, and it doesn't fit. And so I'm required under the precedent to rule in favor of the plaintiffs in this case. That's what he's done. And I think that's appropriate. I absolutely think that's appropriate here. We also appealed some issues on remedies. There was a second motion for summary judgment brought after the liability determination on the remedies issues. We've appealed all questions on the remedies issues. Judge Titus ruled in favor of Geico on a willfulness finding, on allowing my clients to obtain liquidated damages for their loss on even the imposition of pre-judgment interest, as well as on how to calculate the overtime rate, whether it's time and a half or a point five calculation. The arguments are in our briefs, but I want to make several points as the court is contemplating sending this question perhaps back to the trial court. On willfulness, the cases, at least the recent cases in this circuit have suggested that that question is a question of fact. And that it's either after a bench trial or it's remanded for at least the cases that I saw in the last 10 or 15 years in the circuit suggested that that question is a fact question that should be said by the trial. Do you want to trial on the remedies? I do. So you want to send back for a trial on the remedies? I absolutely do your honors. The last issue is the other element to the Do we have jurisdiction over your cross appeal, by the way? I believe you do your honor. On remedies? I do. Because what we did... Even though the... Go ahead. What we did is we... There was a second round of cross motions for summary judgment on the remedies issues. There was an order issued and then the party stipulated to the only fact dispute that existed in the case then at that point which was hours worked. And so there is a stipulation, the record that allowed judge Titus to then enter judgment to allow the parties to appeal. And... Was it..

. And so I'm required under the precedent to rule in favor of the plaintiffs in this case. That's what he's done. And I think that's appropriate. I absolutely think that's appropriate here. We also appealed some issues on remedies. There was a second motion for summary judgment brought after the liability determination on the remedies issues. We've appealed all questions on the remedies issues. Judge Titus ruled in favor of Geico on a willfulness finding, on allowing my clients to obtain liquidated damages for their loss on even the imposition of pre-judgment interest, as well as on how to calculate the overtime rate, whether it's time and a half or a point five calculation. The arguments are in our briefs, but I want to make several points as the court is contemplating sending this question perhaps back to the trial court. On willfulness, the cases, at least the recent cases in this circuit have suggested that that question is a question of fact. And that it's either after a bench trial or it's remanded for at least the cases that I saw in the last 10 or 15 years in the circuit suggested that that question is a fact question that should be said by the trial. Do you want to trial on the remedies? I do. So you want to send back for a trial on the remedies? I absolutely do your honors. The last issue is the other element to the Do we have jurisdiction over your cross appeal, by the way? I believe you do your honor. On remedies? I do. Because what we did... Even though the... Go ahead. What we did is we... There was a second round of cross motions for summary judgment on the remedies issues. There was an order issued and then the party stipulated to the only fact dispute that existed in the case then at that point which was hours worked. And so there is a stipulation, the record that allowed judge Titus to then enter judgment to allow the parties to appeal. And... Was it... Is this a final order appeal? Excuse me? Is this a final order appeal or a rule 54, be appeal? What is it? It's a appeal from an entry of judgment. It's a final order appeal. How much money did you cause yet? So we didn't stipulate to a number? Well see that's... We stipulated to the formula to... But the formula that's not a final order make. I'm looking for money. Right? How much money did they deliver? Well you're on her. Your honor, if a number would have been reached it would have been well into the seven figures. Well if you don't have a final order... If you don't have a final order we don't have jurisdiction over the first, over there appeal either. Judgment was entered in this case, your honor. But you say it's not a final judge? Not a final judge. I didn't say it was in the final judgment. How can it be said it was in the appealable order? The claim for money, but the judge hasn't awarded any money to anybody. Because the judge has entered an order that stipulates what Bickel is required to pay the plaintiffs should the district court's decision on summary. Is there anything else to be resolved here? No. It's over with. It's over with. Then with... Okay. It's over with. Did they agree with that too, I guess? I'll let him speak for himself, but I believe he does. So if we affirm you just go back to your office and wait for the check to come. That's all that's all that's necessary. I need to speak with Mr. Hemingdinger about the final calculation based on our stipulation

. Is this a final order appeal? Excuse me? Is this a final order appeal or a rule 54, be appeal? What is it? It's a appeal from an entry of judgment. It's a final order appeal. How much money did you cause yet? So we didn't stipulate to a number? Well see that's... We stipulated to the formula to... But the formula that's not a final order make. I'm looking for money. Right? How much money did they deliver? Well you're on her. Your honor, if a number would have been reached it would have been well into the seven figures. Well if you don't have a final order... If you don't have a final order we don't have jurisdiction over the first, over there appeal either. Judgment was entered in this case, your honor. But you say it's not a final judge? Not a final judge. I didn't say it was in the final judgment. How can it be said it was in the appealable order? The claim for money, but the judge hasn't awarded any money to anybody. Because the judge has entered an order that stipulates what Bickel is required to pay the plaintiffs should the district court's decision on summary. Is there anything else to be resolved here? No. It's over with. It's over with. Then with... Okay. It's over with. Did they agree with that too, I guess? I'll let him speak for himself, but I believe he does. So if we affirm you just go back to your office and wait for the check to come. That's all that's all that's necessary. I need to speak with Mr. Hemingdinger about the final calculation based on our stipulation. But yeah, I mean that's why Bickel is required. That is right. That is right. On the final calculation. We've allowed judge Titus to step in and resolve that dispute. Yes. On that issue. That final order. It's not over with. Well... That's one thing we don't like much is these piecemeal appeals. No, there is no... There is... Other than the final number on the determination of the calculation, that's it. You reserved the right to go back. Well, I mean, for my standpoint, every substantive issue has been resolved and that this appeals proper. If you can't agree on the numbers and you go back and judge Titus makes the other ruling, then we got another appeal in the same case. Well, whether he has ruling on the numbers was right or not. Yeah, I'm not certain about that, Your Honor. I'm not certain about that. I see my time is... Well, you need to be certain. You mean you... You're the lawyer in this case

. But yeah, I mean that's why Bickel is required. That is right. That is right. On the final calculation. We've allowed judge Titus to step in and resolve that dispute. Yes. On that issue. That final order. It's not over with. Well... That's one thing we don't like much is these piecemeal appeals. No, there is no... There is... Other than the final number on the determination of the calculation, that's it. You reserved the right to go back. Well, I mean, for my standpoint, every substantive issue has been resolved and that this appeals proper. If you can't agree on the numbers and you go back and judge Titus makes the other ruling, then we got another appeal in the same case. Well, whether he has ruling on the numbers was right or not. Yeah, I'm not certain about that, Your Honor. I'm not certain about that. I see my time is... Well, you need to be certain. You mean you... You're the lawyer in this case. And you both have your saying we got jurisdiction to hear the appeals, I guess. Or you wouldn't be here. Any other questions? You got some time remaining. Let's hear from Mr. Himmendanger. Your Honor, I'd like to address a couple of things. First, the primary duty concept. Under the regulation, the primary duty is a question of law. What the court has to do is... What the regulation for a determination, whether the primary duty of the employees is work that is administrative in nature, this court did that in the case of Altamus versus Federal Realty Investment Trust. Just, Javis was on the panel in that case. The court found that the primary duty of the executive assistant was administrative work. You then look within that category of administrative work to see if there is some work requiring the exercise of discretion and independent judgment. Now, plaintiff's counsel has tried hard to take the findings that the investigators make and exclude that from the primary duty. They say, the argument is gathering the facts is the primary duty, but writing the findings is not part of the primary. But you are always arguing about facts. No, those are conclusive. You are all you're telling us, but what the investigators do or don't do. And there's no question about what they actually do. What if you don't make a stipulation if you wanted to judge the rule on summary judge? Because you probably couldn't agree. That's why. You're on it. We did not pursue that. Why didn't you get a final order before you came up here? Because you're on it. It is a final order. I actually researched that point. There's a case from this court, Ram versus... Well, is there a reservation that you can go back to judge Titus and having figure out the numbers when you all can't agree on them? The judge does retain jurisdiction, but there's precedent for that..

. And you both have your saying we got jurisdiction to hear the appeals, I guess. Or you wouldn't be here. Any other questions? You got some time remaining. Let's hear from Mr. Himmendanger. Your Honor, I'd like to address a couple of things. First, the primary duty concept. Under the regulation, the primary duty is a question of law. What the court has to do is... What the regulation for a determination, whether the primary duty of the employees is work that is administrative in nature, this court did that in the case of Altamus versus Federal Realty Investment Trust. Just, Javis was on the panel in that case. The court found that the primary duty of the executive assistant was administrative work. You then look within that category of administrative work to see if there is some work requiring the exercise of discretion and independent judgment. Now, plaintiff's counsel has tried hard to take the findings that the investigators make and exclude that from the primary duty. They say, the argument is gathering the facts is the primary duty, but writing the findings is not part of the primary. But you are always arguing about facts. No, those are conclusive. You are all you're telling us, but what the investigators do or don't do. And there's no question about what they actually do. What if you don't make a stipulation if you wanted to judge the rule on summary judge? Because you probably couldn't agree. That's why. You're on it. We did not pursue that. Why didn't you get a final order before you came up here? Because you're on it. It is a final order. I actually researched that point. There's a case from this court, Ram versus... Well, is there a reservation that you can go back to judge Titus and having figure out the numbers when you all can't agree on them? The judge does retain jurisdiction, but there's precedent for that... Can I name jurisdiction? There is precedent... You're on it. There's precedent. I think they call it interlocutorial appeal. They define an exception to the final order document. You're on it. There's precedent for that. In fact, we did the very same thing in the Robinson Smith case, which was in the DC Circuit. Maybe they didn't give the panel the information that the judge has reserved jurisdiction. That's first I heard that, was just five minutes ago, that the court reserved the power to go back. Or you all reserved the power to go back to the court, getting to resolve disputes over the money. You're honoring Ram versus Paramount, the court held. Money judgment may not be deemed final unless it determines or specifies the means of determining the specific amount of the recovery. That's this court's decision from 19th century. But here, you've got... Part of your stipulation says, for purposes of computing back pay, etc. The number of hours worked by plaintiffs and class members, assuming no missed days during the work week. So your very stipulation contemplates, it seems to me, on the face of it, the likelihood of disputes. No, it doesn't. We can figure out no work days. That's a matter of looking at the calendar. People argue about a lot more than whether somebody missed a work day. If somebody comes into work at 1045 and leaves at 130, has he or she missed the work day? No, you have to miss an entire day. Under the Fair Labor Standards Act, a salary to employ has to miss an entire day. But that would be... They're going to get paid. You'd have to go back to the judge. I don't know

. Can I name jurisdiction? There is precedent... You're on it. There's precedent. I think they call it interlocutorial appeal. They define an exception to the final order document. You're on it. There's precedent for that. In fact, we did the very same thing in the Robinson Smith case, which was in the DC Circuit. Maybe they didn't give the panel the information that the judge has reserved jurisdiction. That's first I heard that, was just five minutes ago, that the court reserved the power to go back. Or you all reserved the power to go back to the court, getting to resolve disputes over the money. You're honoring Ram versus Paramount, the court held. Money judgment may not be deemed final unless it determines or specifies the means of determining the specific amount of the recovery. That's this court's decision from 19th century. But here, you've got... Part of your stipulation says, for purposes of computing back pay, etc. The number of hours worked by plaintiffs and class members, assuming no missed days during the work week. So your very stipulation contemplates, it seems to me, on the face of it, the likelihood of disputes. No, it doesn't. We can figure out no work days. That's a matter of looking at the calendar. People argue about a lot more than whether somebody missed a work day. If somebody comes into work at 1045 and leaves at 130, has he or she missed the work day? No, you have to miss an entire day. Under the Fair Labor Standards Act, a salary to employ has to miss an entire day. But that would be... They're going to get paid. You'd have to go back to the judge. I don't know. I appreciate the efforts of counsel to streamline and make efficient. But I just don't see how you can bring a case up here on interlocatory orders. And what you call a final judgment, it's not a final judgment at all. There's a lot of work for the judge to do here. Depending on how well counsel get along in this case, after our ruling. There's all kinds of stuff to get done. Calculations, who missed work, who didn't? We could do all that. We'd come up with a number and then we'd be back here with the same arguments about liability. Well, that means I'll go ahead. That's the practicality of the situation. It's the courts that have jurisdiction to resolve or supervise the resolution of any issue concerning the remedy that the parties are unable to resolve. That's true. There's a case. It's a DC case, but we relied on it in Robinson Smith, Piggford versus Venomin, where the court issued a final order, a pealable order, went to the DC Circuit. Was it a certified rule 54 order? A summary judgment order. I don't think it was either. I think it was a final judgment. I don't have the case that firmly in my mind, but we did look at that point. I would like to know. What does it mean in four point? I, this stipulated order will apply to final judgment for plaintiffs and class members, even if such judgment comes after trial or liability. It was a... That seems to contemplate a future final judgment. And yet, you purport to appeal from this very order, and you call it a final judgment. So, how can it be a final judgment that itself contemplates the future existence of a final order? Final judgment. Because you're on a... anticipated this appeal. We knew this case was going to go to the fourth circuit, and we knew there was a possibility of a remand for a trial. And what we agreed on was that all the..

. I appreciate the efforts of counsel to streamline and make efficient. But I just don't see how you can bring a case up here on interlocatory orders. And what you call a final judgment, it's not a final judgment at all. There's a lot of work for the judge to do here. Depending on how well counsel get along in this case, after our ruling. There's all kinds of stuff to get done. Calculations, who missed work, who didn't? We could do all that. We'd come up with a number and then we'd be back here with the same arguments about liability. Well, that means I'll go ahead. That's the practicality of the situation. It's the courts that have jurisdiction to resolve or supervise the resolution of any issue concerning the remedy that the parties are unable to resolve. That's true. There's a case. It's a DC case, but we relied on it in Robinson Smith, Piggford versus Venomin, where the court issued a final order, a pealable order, went to the DC Circuit. Was it a certified rule 54 order? A summary judgment order. I don't think it was either. I think it was a final judgment. I don't have the case that firmly in my mind, but we did look at that point. I would like to know. What does it mean in four point? I, this stipulated order will apply to final judgment for plaintiffs and class members, even if such judgment comes after trial or liability. It was a... That seems to contemplate a future final judgment. And yet, you purport to appeal from this very order, and you call it a final judgment. So, how can it be a final judgment that itself contemplates the future existence of a final order? Final judgment. Because you're on a... anticipated this appeal. We knew this case was going to go to the fourth circuit, and we knew there was a possibility of a remand for a trial. And what we agreed on was that all the... all the rulings that had been made and the stipulations as the fact that had been entered into by the parties would stay intact even if there was a rethinking of the liability issue. If, let's say there was a remand, there was a trial, plain if one, again, at trial, we would still use the same remedy. We weren't going to go back to that issue twice. That was the thinking. But there's an appeal of the remedy. That's correct, and we would be bound by the ruling on appeal. We had done... The parties had done all the work that they could do in terms of resolving the issues that they could resolve. The resolve... We resolved... We resolved all the issues that we could agree on and left it to the court, subject to appeal, to resolve the rest. The court did its job. I'll give you the advisory opinion. I don't think so, Your Honor. I'm not going to talk normally about what we do. Well, you can make this all remedy issue go away, but a trial or not. That would be my second choice. My first choice would be you, for you, to exercise your power to review the record de novo, which you can do as a matter of, because it's a question of law, because it came to you on summary judgment, see that these people, these investigators, make findings of fact that claims are fraudulent or not fraudulent, which is abundantly documented in the record, say that that constitutes the exercise of discretion in an independent judgment. As to a matter of significance, which is clearly... One of us, correct. On the summary judgment, motion in your paper. Absolutely. Okay. Thank you. Okay. Morgan

. all the rulings that had been made and the stipulations as the fact that had been entered into by the parties would stay intact even if there was a rethinking of the liability issue. If, let's say there was a remand, there was a trial, plain if one, again, at trial, we would still use the same remedy. We weren't going to go back to that issue twice. That was the thinking. But there's an appeal of the remedy. That's correct, and we would be bound by the ruling on appeal. We had done... The parties had done all the work that they could do in terms of resolving the issues that they could resolve. The resolve... We resolved... We resolved all the issues that we could agree on and left it to the court, subject to appeal, to resolve the rest. The court did its job. I'll give you the advisory opinion. I don't think so, Your Honor. I'm not going to talk normally about what we do. Well, you can make this all remedy issue go away, but a trial or not. That would be my second choice. My first choice would be you, for you, to exercise your power to review the record de novo, which you can do as a matter of, because it's a question of law, because it came to you on summary judgment, see that these people, these investigators, make findings of fact that claims are fraudulent or not fraudulent, which is abundantly documented in the record, say that that constitutes the exercise of discretion in an independent judgment. As to a matter of significance, which is clearly... One of us, correct. On the summary judgment, motion in your paper. Absolutely. Okay. Thank you. Okay. Morgan. Judge Davis, what you're pointing to the stipulation is an effort by Council to streamline the process to avoid dealing with any of the issues, so that once the liability question and the remedies questions were resolved, and we knew appeal was coming, it would be a purely a matter of math. Does rule 54 give you the ability to do that, to bring it up, bring up case to us at this point, even though they're unresolved issues? I can't remember the exact wording. I don't know the... It has to be certified, I think. And it would be by the district court. And then I think we have to agree to take it. Right. So there's two steps, and I don't think I think you'd agree that neither of those were taken. I would agree with you, Judge King. So that's what this is, an effort of both sides, trying to connect to streamline the process, and we did not include a number. We didn't reach a number. So you think me, that's what rule 54 is. It's four. Mr. Lead, you do what it is you're trying to do now. Yeah. But not done. This is where we're at, and we both proceeded this way. I did, I mean, council did represent Geico in the Robinson Smith case, indicated to me that this was a way to do it. We researched it on our end. It seemed appropriate at the time, but I understand the court's concern. That's the DC case, you're relying on. That's correct, Your Honor. And what was the procedural posture there? My understanding was summary judgment was granted for the plaintiffs who are claims adjusters, in that case. Right. Geico appealed to the DC circuit, but worked out all of the remedies issues by a stipulation. And there was no rule 54 certification. I don't know that you don't know. Don't believe so. Okay. And if you worked out all the numbers by stipulation, it wouldn't be any problem. You wouldn't have what you have here

. Judge Davis, what you're pointing to the stipulation is an effort by Council to streamline the process to avoid dealing with any of the issues, so that once the liability question and the remedies questions were resolved, and we knew appeal was coming, it would be a purely a matter of math. Does rule 54 give you the ability to do that, to bring it up, bring up case to us at this point, even though they're unresolved issues? I can't remember the exact wording. I don't know the... It has to be certified, I think. And it would be by the district court. And then I think we have to agree to take it. Right. So there's two steps, and I don't think I think you'd agree that neither of those were taken. I would agree with you, Judge King. So that's what this is, an effort of both sides, trying to connect to streamline the process, and we did not include a number. We didn't reach a number. So you think me, that's what rule 54 is. It's four. Mr. Lead, you do what it is you're trying to do now. Yeah. But not done. This is where we're at, and we both proceeded this way. I did, I mean, council did represent Geico in the Robinson Smith case, indicated to me that this was a way to do it. We researched it on our end. It seemed appropriate at the time, but I understand the court's concern. That's the DC case, you're relying on. That's correct, Your Honor. And what was the procedural posture there? My understanding was summary judgment was granted for the plaintiffs who are claims adjusters, in that case. Right. Geico appealed to the DC circuit, but worked out all of the remedies issues by a stipulation. And there was no rule 54 certification. I don't know that you don't know. Don't believe so. Okay. And if you worked out all the numbers by stipulation, it wouldn't be any problem. You wouldn't have what you have here. Yeah, I understand. I understand what you're looking for. Here you have to work those out. You've reserved the right to go back. That's correct. I mean, we have agreed on every single variable. I think the stipulation contains an agreeable third party to come up with the calculation subject to a consent by both sides. So that's what you see here. I can say that your... I'm afraid that your mediation... Well, what it looks like. And it wasn't it, we'd even need a mediator, Judge Davis. So I think that was standing that issue that the court can still decide this question of liability. And you have to take my word for it. The reason these cases were started by my office. I mean, we litigated the farmers case, the veracity case, even the nationwide case that we lost, was because in 2005, the Department of Labor issued an opinion letter. And it was an opinion letter concerning background investigators who performed backgrounds on individuals who were going to get top-level national security clearance. It was a company that contracted with DSS. And the same tasks, the same investigatory duties, albeit in a different setting, not the insurance world, are being performed by insurance investigators. And the DOL, all of the comments that Mr. Hemingdeer talked about, credibility determinations, determining what questions to ask, all of those issues have been considered by the Department of Labor and determined to be not discretion and judgment with regard to matters of significance. The DOL has been consistent 1997. I think it was the first letter opinion on this. And it was reaffirmed in 2005. And frankly, it's consistent with the regulations that identify investigators as not administrative workers under the FLSA. So, unless the court has any other questions, I thank you for your time. Thank you. All right, we'll come down to greet Council and then go into the next case. Thank you.

All right, Mr. Himmendinger. May it please the court. Geico's fraud investigators gather evidence, find whether or not claims are fraudulent, and report their findings to the adjusters who rely on the investigators findings in denying or paying claims. Making those findings is an exercise of discretion and independent judgment, and the subject matter of those findings, whether or not claims are fraudulent, is a matter of significance to Geico. For these reasons alone, the district court's conclusion that the investigators discretion and independent judgment does not concern matters of significance is not persuasive. The Sixth Circuit's decision in foster provides a more persuasive analysis of that issue, which is here for Genovo Review. I would like to make three main points about the third prong of the test for the exemption. First point, it is undisputed that making findings that claims are fraudulent or not fraudulent is part of the investigator's primary duty. The district court decision and plaintiffs brief, as well as our brief, quote, a section of the special investigations unit manual that the final step of an investigation is, quote, writing a concise and complete summary of the investigation, including the investigators' findings regarding the suspected insurance fraud and the basis for their findings. The record shows that the investigators actually do with the manual describes. Mr. Calderone, the man who started this case, said in his 2010 self-evaluation, I have handled difficult to very difficult cases, detected the fraud, and was able to prove the fraud, resulting in several arrests and profiles in the Gachee files, the Gachee files, or the SIU departments in house newsletter. Mr. Fitzgerald, the class representative for the New York class, stated in his deposition, the only thing I can put down, I found fraud or I didn't find fraud. To bolster this, we offered many investigators' reports as exhibits in this case, and they were drawn from random samples, two random samples that were included in the record. You can look at these. In many cases, these reports find that the claimant is credible, find no fraud, or find insufficient evidence to find fraud, which are different findings, but they are all important findings to make. They allow the case to go forward and be paid. If they do find fraud, they say so. Some cases they say fraud was found. We have a collection of these in page 14 through 16 of the brief. Fraud was found, or they can identify the specific nature of the fraud using language like, and these are all quotes, caused accident, appeared to be hiding something. I did not find the claimant to be credible, insured, and last driver of the vehicle were found not credible, claim did not occur as alleged. The record further shows that the adjuster's decision on a claim is based on essentially what the investigator tells them. That is not contested in the summary judgment record, and there are two functional reasons why that would be so. First is that the investigators have the expertise in detecting fraud. They are the company's fraud specialist. The second is that the investigators have the only first hand view of the evidence, including the interviews, which are central to the investigations. In fact, the adjusters do not have access to the evidence. The only thing they have access to is the investigators report, and they tend to read only the summary portion of the report, which Mr. Calderon himself stated in one of his, actually was in his exit interview when he was complaining about how hard he was working. That is like pretty sloppy. They do not read the report. The adjusters? Well, no, it is the fact that they trust the investigators to write a summary of the investigation. They read the summary portion of the report. How to claim. Correct. They also have an oral conversation with the investigator. You would see investigators tell them their conclusions. My second main point was that making findings concerning the fraud is an exercise of discretion and independent judgment. Before I go further into that, I want to set aside two issues as not relevant to that determination. First of all, it does not matter that some of the adjusters submit their final reports to supervisors for review. And the reason for that is that the regulations specifically states employees can exercise discretion and independent judgment, even if their decisions or recommendations are reviewed at a higher level. It also does not matter that the adjusters actually process the payment or denial. And the reason for that is that regulation specifically states the decisions made as a result of the exercise of discretion and independent judgment may consist of recommendations for action rather than the actual taking of action. Turning to what the regulations do require, the regulations require that an exempt employee make a real choice as opposed to applying a predetermined standard within closely prescribed limits or following a predetermined cause of action. The Department of Labor calls what you do when you're making a decision which is already written out for you in a manual or something like that. A skill. But in this case, there is no predetermined standard where you can look up whether any givinset of evidence proves fraud. Mr. Calderone has testified. Each interview is different. Mr. Fitzgerald testified. Each case is kind of individual. Among other things, the investigators in concluding whether claims are fraudulent or not fraudulent make credibility resolutions. And I asked Mr. Fitzgerald in his deposition to describe how when he takes one of these examinations under oath which is like a deposition and then he calls the adjuster afterwards to describe what happened and he testified. They will ask me, what do you think? How did they come across? And he answered, they're telling the truth, they're telling the partial truth or they're a complete liar. They're drawing these credibility resolutions from these deposition-like interviews. They also draw inference from circumstantial evidence. They look at things like the employee's financial history to see if they have a motive to commit fraud, perhaps under water, or on their claim, on their payments. They look at the claims history to see if there's a history of doing things like that. I'm sorry, Mr. Chairman, I'm a little bit confused. Not confused. Were these cross motions? Yes, sir. So the district court denied yours and granted plaintiffs. Yes, sir. You're here seeking in the alternative a complete reversal because you contend that in fact your summary judgment motion should have been granted and the plaintiffs denied. Correct. And then the alternative you say, send it back for what? For a trial or for what? In other words, it's- Well, the two things that could happen, you could, if you send it back, you could tell the district judge to re-examine the record which is undisputed under the correct summary judgment standard, or he could help the trial. Okay, but is this question of law or a question of fact for jury? It's a question of law. And you have the burden. I have the burden on the facts, but the facts are undisputed. But the ultimate fact, application of the law to the undisputed facts, you have the burden on that established by clearing convincing evidence. Isn't that correct? That's what- That's a couple of things about that. That's this court standard. No other circuit- Well, we're in this court. We are. That's the law here. But clearing convincing is an evidentiary standard. It applies to the findings of fact that the court makes. But it also applies in the summary judgment context to the extent that in assessing whether there's a genuine disputed material fact on which you, your client as the party with the burden of proof, could establish to the district court by clearing convincing evidence that the exemption applies. So even if we were to find some judgment erroneously granted to the plaintiff here, but we don't find that your client wins as a matter of law, then it goes back to the district court, and the district court does exactly the same thing that it's done in his summary judgment ruling, doesn't it? It determines the applicability of the exemption as a matter of law. It's a question of law bearing in mind that your client has the burden to establish all the facts necessary, including the inferences that would support a conclusion that these plaintiffs are exempt. Your Honor, I think in this case, first of all, the summary judgment standard says that at that stage all the inference should have been drawn in our favor. So the court clearly aired an interview in granting plaintiffs' motion for summary judgment. So he didn't give you the facts? No, he drew the inferences in favor. What do you want? Do you want a trial? No, I would prefer that this court exercise its right to decide the case denovo. We did not ask... Well, there are disputed facts here? No, we do not think the facts are disputed. Do you say the judges gave them the facts instead of you? No, it must be disputed. No, the judge gave them the inferences, I would say. Both the facts. Well, there's a... Your Honor, if you look at the judge's decision, the second to last paragraph of it is a characterization of the evidence, which is actually a quotation from plaintiffs' briefs. So I think what the judge did here is look at this in the light most favorable to the other questions of fact. There are no questions of fact here, Honor. The facts are disputed. We will all disagree with the facts. No, we do not disagree. There is no disagreement about the facts. What I've just described to you about what these employees do every day is undisputed. Do you say that the facts that the judge used was taken from them? It was the characters... What do you must disagree with their version of the facts? No, I've disagreed with their characterization of what the employees do. I disagree with the characters... Those are the facts, what the employees do. You're on investigators, what they do. What they actually do is not disputed. What I disagree with is... What they actually do is not disputed as far as you're concerned, but it must have been disputed as far as they're concerned, and the judge said it was something else. No, Your Honor. Actually, if you, in their brief, they agree with us that the facts are undisputed. But in the second... Did you disagree with facts as the judge related? I disagree with the way the judge characterized the facts. The judge wrote in the second- to last paragraph of his decision where he's winding up... But they said that's where he quoted from their brief. Right, he says... That must be their characterization of the facts. That's correct. That is their characterization of the facts. He says regulations and case laws suggest the fact that investigators know that certain claims could be fraudulent. It's not in itself established that their discretion bears on matters of significance. Well, he describes it, note that certain claims could be fraudulent. That is not an accurate characterization of the facts. They are actually dispatched to find out whether claims are fraudulent or not. And to report their conclusion on that fact... To the injustice. That's a factual dispute. Well, it's not really disputed in the record. The plaintiff admitted it. Let me ask a question so you know what to add. Okay, sorry, Your Honor. You may say the facts are not in dispute, but the inferences are... The characterization of the facts are in dispute. That's why we have trials. Well, your Honor, a trial would be a step in the right direction for me. Would be a what? Step in the right direction for me. I have an ask for one. Well, all you feel when one is unrejudgment going the other way. That's what your brief says. So can you come up here now and say, well, I really want summary judgment. I would dispute the facts when I'd like to have a trial. You'd change in your position. No, Your Honor. Well, you are. I think that the court is in hand. You want summary judgment proceedings in the district court. And you want to rule your favor. That's correct, Your Honor. And but this court has the... So if they're disputed facts, they're not ruled your favor. And the proof is then so you haven't challenged it right. If they're disputed facts, judge the tracks were said to be the trial. There's a side to facts. Your Honor, the jury and they'll decide the facts. Your Honor, there are no actual... I mean, the reason we put all these reports... You say you read to us what the judge got wrong. The reason we put all... And you say he quoted that from the other side. Right. So it must be a dispute in the facts. No, Your Honor, there's a way of characterizing facts. There's a difference between facts and the spin you put on facts. There's a disputed spin in this case. There are no dispute about the reports that the investigators filed. That's why we put them into the evident, into the record, so that no one would have to rely on anybody's description about what the investigators do or don't do. You can read in the record in the appendices a whole compilation of these reports which show that they are making conclusions. I would take a trial over where I am now. Well, I would... I would think... But you say you don't want one. I would prefer to have it resolved by this court, which I think you can do on this record and it didn't over review. Thank you. You've got some time remaining. Let's hear it from Mr. Morgan. May I please the court? The debate that I think the court was having with Mr. Hemingdinger concerns the characterization of the facts. And it was Judge Titus' view under the standard articulated in the fourth circuit that Geichel couldn't meet its burden-improve to establish clear and convincing evidence that each element of the administrative exemption plainly and unmistakably fits with these facts. It is his conclusion. And that's why Judge Titus granted our affirmative motion. But he has to respect the facts. The light most favorable to Geichel. You're right, Your Honor. But the facts have to be taken in the inferences too in the light most favorable to the non-moving party. You hear the losing party. That's Geichel. Fair enough. But they also moved for some regentment at the same time. They did, but that was denied. But you summary judgment, they have to give him the facts. And are you saying there's no disputed facts? I'm saying there are no disputed facts. What they're taking issue with is the characterization of the primary duty. Classification cases under the FLSA start and end with the determination of the primary duty. The two elements that we're debating here. The one that Judge Titus granted in our favor, discretion and judgment, as well as the one we appealed on, whether the investigators actually service the general operations of the business, both stem from what the determination of the primary duty is. And in this case, Judge Titus said the primary duty is to conduct investigations. Okay, what does that mean? What that means is a question of fact. And Judge Titus determined what that meant. And it didn't mean fraud finding. It's ironic that Geichel... He did find the facts. He did find the facts in... How does the judge have a right to do that on summary judgment? Because both parties said these are the facts and they are undisputed. They were cross motions. Time. One person, one party says here's the facts, my version. The other party says here's the facts, my version. And they conflict and they don't agree. So we have to have a trial resolved. That's right. And what Judge Titus concluded was there is no trial. There is no disputed fact as it relates to whether he can, as a matter of law, determine that Geichel met its burden of proof on a clear and convincing evidence, evidentiary standard, that each element, all the facts fit into each of these elements clearly and unmistakably. That is the law. That was reaffirmed in the Desmond case. Was there any consideration given to having the district court decide disputed facts on a summary judgment record? That is often done when you have these multifactored administrative type claims under FL. I say, and there's some other statues. Was any consideration given to that? No, Your Honor. And I would submit that that's what Judge Titus essentially has done. But that's the problem. You see, without Geichel's consent that Judge Titus could do that, what we're stuck with here is we have cross motions for summary judgment. Right. On an ultimate question of law, and as to your motion, Geichel's entitled to all the inferences in its favor, as to Geichel's motion, your clients are entitled to all the inferences. And we've said many times just because their cross motions for summary judgment doesn't mean the court can decide the issue as a matter of summary judgment. Practice. Understood. Okay. But I believe that Judge Titus considered all the facts and understood those standards. Well, you just said that what Judge Titus did was fine facts. Well, I think he said in relation to the response to Judge King. He did because there was because the party acts on summary Judge. But the parties didn't dispute the facts. So both parties admitted, debitiously, the do, excuse me, obviously you do dispute the facts. No, we, this is where I do agree with Mr. Hemington, Your Honours. I do believe that they take issue with the characterization of the facts. Judge Titus in the, the last paragraph of his opinion reads, in the fourth circuit, the FLS says administrative exemption is quote, narrowly construed. And the court concludes that Geico has failed to demonstrate by clear and convincing evidence that investigators fit within the narrow administrative exemption. And therefore denied Geico's motion for summary judgment, which was correct, as you just described it. But that doesn't mean that you automatically get summary judgment. In the FLSA world, it absolutely does your honor. It absolutely does. If a moving party cannot establish present facts that support the clear and convincing standard. But you got to, that party loses. The facts of the case. Excuse me? You got to prove that those are the facts of the case. Absolutely. And the, and you could, you know, didn't file a stipulation. No, we didn't. You didn't file a stipulation. You could file a stipulation and you'd have the facts spelled out there for the district judge and for us, but you didn't do that. You both have your argument there's, what, there's a six circuit case. Is that it? There's a false, the versus nationwide. False. Was that decided on summary judgment? Part of it. But the, it was a, it was a, it wasn't. That's right. There was a trial to decide the fact. There was. There was. But here, and the six circuit paid strong deference to judge Sargis out of Columbus at on, on the appeal. And, but there were other cases, other investigator cases, the Fenton versus Farmer's case, the Ali versus Veracity case, all decided on cross motions for summary judgment in favor of the plaintiff. And so, there is case law that exists that supports the notion that the appeal that judge Titus' decision on summary judgment can be affirmed by this panel because the application of the fact to the reg, while it's Geico's burden is still a question of law. And what, judge Titus, I think, got were two briefs with facts. And looked at the facts, determined what the primary duty of the fact, of the investigators were, which is on page three through eight of its brief. And frankly, every, literally, every single citation is to Geico's managers. The judge have to actually make that determination for are they undisputed facts. Which determination? You just said the judge determine what the principal duties are. Yeah. Did the judge actually have to determine that or are they just set out in undisputed facts? They are not set out in undisputed facts. Well, then you've got a dispute with Genoa, a genuine dispute of material facts. The judge can't make findings as a part of summary judgment. Your Honor, the judge can only draw inferences in favor of the non-moving. But there are myriad cases, at least in the FLSA world, where courts make a determination as a matter of law on summary judgment, whether the facts fit the regulation. There's a host of them. And that's all that happened here. Summary judgment law doesn't change just because you've got an FLSA case. That's true. Laws. Summary judgment is the same rule. 56 is the same. That's true, but it's ironic because in... You can walk and sit down. The two of you all can sit down and maybe you could stipulate on what those duties are. And that would take care of it. But that's not what you did here. No, we've told us that. You're right, Your Honor. We did not do that. But I'm not saying that that precludes summary judgment or the plaintiff. I'm not. Because on this record, he has considered the facts as they've presented him as well as the plaintiffs. Created to find the primary duty. And from that definition of the primary duty decided it doesn't fit. It doesn't fit discretion in judgment. As a matter of law, Geico's burden of proving clearly and unmistakably that the exemption applies they can't do. And we're going to, as a consequence, render summary judgment in the plaintiff's favor. That's all he did here. And that was the correct decision. And the record statement of facts in pages three through eight of his brief, where he lays out the various steps of an investigator. The citations are to the top employees from Geico's SIU department. Steve Rootsback in my college. The documents that he points to to describe and define the primary duty are Geico's documents. The SIU administration and operations handbook. I mean, this is all, so the idea that, you know, viewing the light in the facts and the light most favorable to the non-movement, he didn't in this order, I would submit to this report. He gave them all the facts. The citations are to the managers and to the documents. I don't think there's one citation to the deposition of my client or any of the opt-ins, plaintiffs who were, who were deposed. The evidence came from Geico. And from that description, that definition of primary duty, he looked at the regulations found that the first prong of the primary duty tests servicing the general business operations, they met their burden on. We disagree. I'll rely on my brief for those arguments. But he then took the next step, which he should have done, which is go to discretion and judgment with regard to matters of significance. And on those facts, as he saw them, viewed, I would argue, in the light most favorable to the defendant, he ruled that the Geico can't meet its burden approved. What can you point to in support of your contention that he viewed in the light most favorable to the defendant? What I would ask... Apart from simply citing to the defendant's submission. That's what I would say, Your Honor. I'm going to cut you off. Please finish your comment. That's all you got. That he cited to the defendant's submission. Yeah. Right. And as you read his analysis, I think he weighs both arguments. But what I'm looking at in his mammarandum of order, he has background facts that begin on page two, and they go through page eight. And those are the facts that he found in connection with this motion for summary judgment. And I do believe that he viewed them in the light most favorable to Geico. I absolutely do. And then he looked at the standard that applies in the fourth circuit when you try to fit the established primary duty into this very narrow executive or administrative exemption element and said it doesn't fit. And so as a consequence, there's nothing for a jury to sort out because this is my job. This is my job over here, and it doesn't fit. And so I'm required under the precedent to rule in favor of the plaintiffs in this case. That's what he's done. And I think that's appropriate. I absolutely think that's appropriate here. We also appealed some issues on remedies. There was a second motion for summary judgment brought after the liability determination on the remedies issues. We've appealed all questions on the remedies issues. Judge Titus ruled in favor of Geico on a willfulness finding, on allowing my clients to obtain liquidated damages for their loss on even the imposition of pre-judgment interest, as well as on how to calculate the overtime rate, whether it's time and a half or a point five calculation. The arguments are in our briefs, but I want to make several points as the court is contemplating sending this question perhaps back to the trial court. On willfulness, the cases, at least the recent cases in this circuit have suggested that that question is a question of fact. And that it's either after a bench trial or it's remanded for at least the cases that I saw in the last 10 or 15 years in the circuit suggested that that question is a fact question that should be said by the trial. Do you want to trial on the remedies? I do. So you want to send back for a trial on the remedies? I absolutely do your honors. The last issue is the other element to the Do we have jurisdiction over your cross appeal, by the way? I believe you do your honor. On remedies? I do. Because what we did... Even though the... Go ahead. What we did is we... There was a second round of cross motions for summary judgment on the remedies issues. There was an order issued and then the party stipulated to the only fact dispute that existed in the case then at that point which was hours worked. And so there is a stipulation, the record that allowed judge Titus to then enter judgment to allow the parties to appeal. And... Was it... Is this a final order appeal? Excuse me? Is this a final order appeal or a rule 54, be appeal? What is it? It's a appeal from an entry of judgment. It's a final order appeal. How much money did you cause yet? So we didn't stipulate to a number? Well see that's... We stipulated to the formula to... But the formula that's not a final order make. I'm looking for money. Right? How much money did they deliver? Well you're on her. Your honor, if a number would have been reached it would have been well into the seven figures. Well if you don't have a final order... If you don't have a final order we don't have jurisdiction over the first, over there appeal either. Judgment was entered in this case, your honor. But you say it's not a final judge? Not a final judge. I didn't say it was in the final judgment. How can it be said it was in the appealable order? The claim for money, but the judge hasn't awarded any money to anybody. Because the judge has entered an order that stipulates what Bickel is required to pay the plaintiffs should the district court's decision on summary. Is there anything else to be resolved here? No. It's over with. It's over with. Then with... Okay. It's over with. Did they agree with that too, I guess? I'll let him speak for himself, but I believe he does. So if we affirm you just go back to your office and wait for the check to come. That's all that's all that's necessary. I need to speak with Mr. Hemingdinger about the final calculation based on our stipulation. But yeah, I mean that's why Bickel is required. That is right. That is right. On the final calculation. We've allowed judge Titus to step in and resolve that dispute. Yes. On that issue. That final order. It's not over with. Well... That's one thing we don't like much is these piecemeal appeals. No, there is no... There is... Other than the final number on the determination of the calculation, that's it. You reserved the right to go back. Well, I mean, for my standpoint, every substantive issue has been resolved and that this appeals proper. If you can't agree on the numbers and you go back and judge Titus makes the other ruling, then we got another appeal in the same case. Well, whether he has ruling on the numbers was right or not. Yeah, I'm not certain about that, Your Honor. I'm not certain about that. I see my time is... Well, you need to be certain. You mean you... You're the lawyer in this case. And you both have your saying we got jurisdiction to hear the appeals, I guess. Or you wouldn't be here. Any other questions? You got some time remaining. Let's hear from Mr. Himmendanger. Your Honor, I'd like to address a couple of things. First, the primary duty concept. Under the regulation, the primary duty is a question of law. What the court has to do is... What the regulation for a determination, whether the primary duty of the employees is work that is administrative in nature, this court did that in the case of Altamus versus Federal Realty Investment Trust. Just, Javis was on the panel in that case. The court found that the primary duty of the executive assistant was administrative work. You then look within that category of administrative work to see if there is some work requiring the exercise of discretion and independent judgment. Now, plaintiff's counsel has tried hard to take the findings that the investigators make and exclude that from the primary duty. They say, the argument is gathering the facts is the primary duty, but writing the findings is not part of the primary. But you are always arguing about facts. No, those are conclusive. You are all you're telling us, but what the investigators do or don't do. And there's no question about what they actually do. What if you don't make a stipulation if you wanted to judge the rule on summary judge? Because you probably couldn't agree. That's why. You're on it. We did not pursue that. Why didn't you get a final order before you came up here? Because you're on it. It is a final order. I actually researched that point. There's a case from this court, Ram versus... Well, is there a reservation that you can go back to judge Titus and having figure out the numbers when you all can't agree on them? The judge does retain jurisdiction, but there's precedent for that... Can I name jurisdiction? There is precedent... You're on it. There's precedent. I think they call it interlocutorial appeal. They define an exception to the final order document. You're on it. There's precedent for that. In fact, we did the very same thing in the Robinson Smith case, which was in the DC Circuit. Maybe they didn't give the panel the information that the judge has reserved jurisdiction. That's first I heard that, was just five minutes ago, that the court reserved the power to go back. Or you all reserved the power to go back to the court, getting to resolve disputes over the money. You're honoring Ram versus Paramount, the court held. Money judgment may not be deemed final unless it determines or specifies the means of determining the specific amount of the recovery. That's this court's decision from 19th century. But here, you've got... Part of your stipulation says, for purposes of computing back pay, etc. The number of hours worked by plaintiffs and class members, assuming no missed days during the work week. So your very stipulation contemplates, it seems to me, on the face of it, the likelihood of disputes. No, it doesn't. We can figure out no work days. That's a matter of looking at the calendar. People argue about a lot more than whether somebody missed a work day. If somebody comes into work at 1045 and leaves at 130, has he or she missed the work day? No, you have to miss an entire day. Under the Fair Labor Standards Act, a salary to employ has to miss an entire day. But that would be... They're going to get paid. You'd have to go back to the judge. I don't know. I appreciate the efforts of counsel to streamline and make efficient. But I just don't see how you can bring a case up here on interlocatory orders. And what you call a final judgment, it's not a final judgment at all. There's a lot of work for the judge to do here. Depending on how well counsel get along in this case, after our ruling. There's all kinds of stuff to get done. Calculations, who missed work, who didn't? We could do all that. We'd come up with a number and then we'd be back here with the same arguments about liability. Well, that means I'll go ahead. That's the practicality of the situation. It's the courts that have jurisdiction to resolve or supervise the resolution of any issue concerning the remedy that the parties are unable to resolve. That's true. There's a case. It's a DC case, but we relied on it in Robinson Smith, Piggford versus Venomin, where the court issued a final order, a pealable order, went to the DC Circuit. Was it a certified rule 54 order? A summary judgment order. I don't think it was either. I think it was a final judgment. I don't have the case that firmly in my mind, but we did look at that point. I would like to know. What does it mean in four point? I, this stipulated order will apply to final judgment for plaintiffs and class members, even if such judgment comes after trial or liability. It was a... That seems to contemplate a future final judgment. And yet, you purport to appeal from this very order, and you call it a final judgment. So, how can it be a final judgment that itself contemplates the future existence of a final order? Final judgment. Because you're on a... anticipated this appeal. We knew this case was going to go to the fourth circuit, and we knew there was a possibility of a remand for a trial. And what we agreed on was that all the... all the rulings that had been made and the stipulations as the fact that had been entered into by the parties would stay intact even if there was a rethinking of the liability issue. If, let's say there was a remand, there was a trial, plain if one, again, at trial, we would still use the same remedy. We weren't going to go back to that issue twice. That was the thinking. But there's an appeal of the remedy. That's correct, and we would be bound by the ruling on appeal. We had done... The parties had done all the work that they could do in terms of resolving the issues that they could resolve. The resolve... We resolved... We resolved all the issues that we could agree on and left it to the court, subject to appeal, to resolve the rest. The court did its job. I'll give you the advisory opinion. I don't think so, Your Honor. I'm not going to talk normally about what we do. Well, you can make this all remedy issue go away, but a trial or not. That would be my second choice. My first choice would be you, for you, to exercise your power to review the record de novo, which you can do as a matter of, because it's a question of law, because it came to you on summary judgment, see that these people, these investigators, make findings of fact that claims are fraudulent or not fraudulent, which is abundantly documented in the record, say that that constitutes the exercise of discretion in an independent judgment. As to a matter of significance, which is clearly... One of us, correct. On the summary judgment, motion in your paper. Absolutely. Okay. Thank you. Okay. Morgan. Judge Davis, what you're pointing to the stipulation is an effort by Council to streamline the process to avoid dealing with any of the issues, so that once the liability question and the remedies questions were resolved, and we knew appeal was coming, it would be a purely a matter of math. Does rule 54 give you the ability to do that, to bring it up, bring up case to us at this point, even though they're unresolved issues? I can't remember the exact wording. I don't know the... It has to be certified, I think. And it would be by the district court. And then I think we have to agree to take it. Right. So there's two steps, and I don't think I think you'd agree that neither of those were taken. I would agree with you, Judge King. So that's what this is, an effort of both sides, trying to connect to streamline the process, and we did not include a number. We didn't reach a number. So you think me, that's what rule 54 is. It's four. Mr. Lead, you do what it is you're trying to do now. Yeah. But not done. This is where we're at, and we both proceeded this way. I did, I mean, council did represent Geico in the Robinson Smith case, indicated to me that this was a way to do it. We researched it on our end. It seemed appropriate at the time, but I understand the court's concern. That's the DC case, you're relying on. That's correct, Your Honor. And what was the procedural posture there? My understanding was summary judgment was granted for the plaintiffs who are claims adjusters, in that case. Right. Geico appealed to the DC circuit, but worked out all of the remedies issues by a stipulation. And there was no rule 54 certification. I don't know that you don't know. Don't believe so. Okay. And if you worked out all the numbers by stipulation, it wouldn't be any problem. You wouldn't have what you have here. Yeah, I understand. I understand what you're looking for. Here you have to work those out. You've reserved the right to go back. That's correct. I mean, we have agreed on every single variable. I think the stipulation contains an agreeable third party to come up with the calculation subject to a consent by both sides. So that's what you see here. I can say that your... I'm afraid that your mediation... Well, what it looks like. And it wasn't it, we'd even need a mediator, Judge Davis. So I think that was standing that issue that the court can still decide this question of liability. And you have to take my word for it. The reason these cases were started by my office. I mean, we litigated the farmers case, the veracity case, even the nationwide case that we lost, was because in 2005, the Department of Labor issued an opinion letter. And it was an opinion letter concerning background investigators who performed backgrounds on individuals who were going to get top-level national security clearance. It was a company that contracted with DSS. And the same tasks, the same investigatory duties, albeit in a different setting, not the insurance world, are being performed by insurance investigators. And the DOL, all of the comments that Mr. Hemingdeer talked about, credibility determinations, determining what questions to ask, all of those issues have been considered by the Department of Labor and determined to be not discretion and judgment with regard to matters of significance. The DOL has been consistent 1997. I think it was the first letter opinion on this. And it was reaffirmed in 2005. And frankly, it's consistent with the regulations that identify investigators as not administrative workers under the FLSA. So, unless the court has any other questions, I thank you for your time. Thank you. All right, we'll come down to greet Council and then go into the next case. Thank you