[00:00:00] Speaker 03: take a short break and come back with a slightly different panel. [00:00:06] Speaker 03: So, Mercier versus United States, Mr. Cook. [00:00:12] Speaker 04: Good morning, Your Honors. [00:00:13] Speaker 03: Good morning. [00:00:15] Speaker 04: May it please the Court, my name is David Cook. [00:00:18] Speaker 04: I'm counsel for the appellant plaintiffs in this matter, Stephanie Mercier and a putative class of Title 38 Advanced Practice Nurses employed by the Veterans Affairs [00:00:30] Speaker 04: administration. [00:00:32] Speaker 04: We come today appealing the decision of the Federal Court of Claims, which granted the VA's motion to dismiss, granted the motion to dismiss finding that the language of 38 USC section 7453E, which grants overtime pay to Title 38 nurses and requires that overtime be officially ordered or approved [00:00:58] Speaker 04: could only occur by express direction. [00:01:02] Speaker 04: We believe that that is contrary to the decision of this court in Doe II, this court's decision in the Doe cases, and also contradicts the plain language of the statute. [00:01:16] Speaker 04: We believe that the District Court, excuse me, the Court of Claims erred in two ways. [00:01:21] Speaker 04: First, by dismissing the claims for compensation for overtime, and secondly, by dismissing the claims [00:01:28] Speaker 04: which assert that if overtime pay is not available, some form of pay must be available at standard or basic rates. [00:01:39] Speaker 04: Otherwise, the government is coercing free work. [00:01:43] Speaker 05: Well, that's your argument, right? [00:01:45] Speaker 05: It's a coercion. [00:01:48] Speaker 05: It's a conscious coercion to require the nurses to do extra work. [00:01:52] Speaker 04: We believe that's correct. [00:01:55] Speaker 05: I have just a basic question. [00:01:59] Speaker 05: and maybe this is for a later stage in the proceedings if you were successful, but how do you prove that on a common basis? [00:02:09] Speaker 04: How do we prove the work? [00:02:10] Speaker 05: How do you prove the effect that the coercion was successful on a common basis? [00:02:15] Speaker 05: How is it not just an idiosyncratic response on the part of each nurse? [00:02:19] Speaker 04: Because there are computer records. [00:02:20] Speaker 04: We're talking about computerized patient record systems, and every time one of the Title 38 nurses is in the system, it's logged. [00:02:28] Speaker 04: whether they're on their tour of duty or outside. [00:02:31] Speaker 04: And that brings up the point, Your Honor, that laptops, tools to perform these view alerts, are assigned by the VA to the Title 38 nurses. [00:02:42] Speaker 04: Those laptops are not assigned to perform the work in the facility during their tour of duty. [00:02:49] Speaker 04: Those laptops are assigned to take home and perform the work from a remote location. [00:02:55] Speaker 04: In addition to laptops, Title 38 nurses [00:02:58] Speaker 04: are given remote access codes to access a virtual private network so that they can log in to the CPRS system and review and deal with view alerts. [00:03:10] Speaker 04: Those two facts, which must be accepted as true under the Motion to Dismiss Standard, are significant proof that the work here is compelled. [00:03:19] Speaker 04: Mr. Cook? [00:03:20] Speaker 04: Yes, sir. [00:03:21] Speaker 03: You don't have to get around DOE 2, really. [00:03:24] Speaker 03: You have to get around Hans? [00:03:27] Speaker 04: We don't believe Hanson applies. [00:03:29] Speaker 04: Hanson applied the standard that a regulation could impose a procedural requirement that would supplement or be an adjunct to the statute, Hanson versus Swigert. [00:03:44] Speaker 03: In the Doe case, Doe 2, they read it very broadly in Overrolling Anderson. [00:03:51] Speaker 04: Yes, they do. [00:03:51] Speaker 04: But first of all, Doe arose under Title 5, not Title 38. [00:03:56] Speaker 04: And the OPM issued a specific regulation which dictated that overtime could only be authorized in writing. [00:04:05] Speaker 04: The VA has conceded there is no such regulation here. [00:04:10] Speaker 02: Now, under Title... If they had such a regulation, you wouldn't be in front of it. [00:04:15] Speaker 04: That's correct. [00:04:16] Speaker 04: That's exactly correct. [00:04:17] Speaker 04: Nothing. [00:04:18] Speaker 02: Let me ask one question. [00:04:21] Speaker 02: You mentioned when you first started that you've got two claims. [00:04:23] Speaker 02: One is based on inducement under 7453, and the other was a claim in case that loses your entire common law right to pay. [00:04:32] Speaker 02: If we were to rule in your favor on the first issue, that moots the second issue, doesn't it? [00:04:36] Speaker 02: Correct. [00:04:37] Speaker 04: That's correct, Your Honor. [00:04:40] Speaker 04: I want to go back to the point of the regulation and what the VA actually does. [00:04:45] Speaker 04: The VA has conceded [00:04:47] Speaker 04: both in its motion to dismiss briefing at page 10, footnote 9, and in its briefing to this court, that because of the nature of the duties, the patient care responsibility of Title 38 nurses, that a written requirement is too formal, that there are urgent and emergency circumstances where overtime cannot be authorized in writing, and in particular in advance. [00:05:16] Speaker 04: The Court of Claims put together two pieces of the Doe case and came up with the standard of express direction. [00:05:24] Speaker 04: Title 38, Section 7453 standard uses the same phrase as Title 5, officially ordered or approved in the disjunctive, or approved. [00:05:36] Speaker 04: We assert that express direction reads approved out of the statute, and we believe that the VA's [00:05:44] Speaker 04: position is inconsistent. [00:05:46] Speaker 04: If a writing requirement is too formal because of the nature of the duties, the patient, care, responsibility, then express direction eliminates the ability to approve of work that wasn't authorized in advance. [00:06:02] Speaker 05: But here's what I'm struggling with. [00:06:04] Speaker 05: It's very practical. [00:06:06] Speaker 05: And maybe this is a factual issue that we don't get to on pleading motion. [00:06:15] Speaker 05: Do we know how many nurses actually need to do the view alerts after hours? [00:06:20] Speaker 05: Do we have data on that? [00:06:22] Speaker 04: Well, all we know is one study that was conducted by the VA at the Houston facility, and 85% of the nurses were spending an additional approximately 50 to 56 minutes each day attending to view alerts beyond their tour of duty. [00:06:40] Speaker 04: We don't have statistics for the entire VA system. [00:06:43] Speaker 05: So we don't know [00:06:45] Speaker 05: how widespread this phenomenon is. [00:06:49] Speaker 05: We don't know what decisions were made by the individual nurses about what they were going to do when. [00:06:56] Speaker 05: We don't know how we got to this point. [00:06:58] Speaker 04: Well, we know we got to this point, Judge Fogel, by the fact that the computer record system was implemented and that at pages 64 and 65 of the appendix, the court will find the overtime, or excuse me, [00:07:12] Speaker 04: the provisions for requirements to attend to the view alerts. [00:07:16] Speaker 04: And some of it depends, obviously this is appropriate for factual determination on revamp. [00:07:23] Speaker 04: But it's very clear that some of these Title 38 nurses, particularly the nurse practitioners and the clinical specialists, have what are known as patient panels. [00:07:33] Speaker 04: That's the group or listing of patients, veterans, that they are personally responsible for. [00:07:40] Speaker 04: understanding that Title 38 nurses are the first line of primary care in the VA system for the veterans who are seeking medical assistance. [00:07:48] Speaker 02: We're at the pleading stage in this case. [00:07:51] Speaker 02: Yes. [00:07:51] Speaker 02: And Judge Kaplan indicated that she believed that your allegations of proven true would likely suffice to grant you an inducement cause of action. [00:08:01] Speaker 00: She did. [00:08:02] Speaker 02: And so let's talk a little bit about Doe. [00:08:04] Speaker 02: That seems to be the elephant in the room to the extent if Hanson is not. [00:08:10] Speaker 02: Let's talk a little bit about the authority of the Doe panel. [00:08:16] Speaker 02: The line of cases coming out of Anderson are binding on this court, right? [00:08:21] Speaker 04: Correct. [00:08:21] Speaker 02: And this court lacks the authority to upset any of those holdings unless there's an intervening Supreme Court authority that requires it, right? [00:08:29] Speaker 04: Yes. [00:08:30] Speaker 04: And the Doe court found that Hanson required that with respect to Title V. Let me finish. [00:08:34] Speaker 02: Let me see where you might take on the case. [00:08:37] Speaker 02: So as of the time that the Doe panel comes along, [00:08:40] Speaker 02: this court has consistently interpreted the FIFA language in FIFA, which is the same as in 7453, to allow inducement to be a form of official ordering or approval, correct? [00:08:56] Speaker 02: Yes, that's correct. [00:08:57] Speaker 02: So you say to yourself, well, to the extent that the DOE panel says to the contrary, where does it get the authority to do so? [00:09:06] Speaker 02: So that backs us up to Hanson. [00:09:08] Speaker 02: We go back and look at Hanson, and we say, well, what did Hanson have to say about whether inducement is sufficient for the statutory words officially ordered or approved? [00:09:21] Speaker 02: And you look all through Hanson, you don't see anything. [00:09:24] Speaker 02: They weren't even taught. [00:09:25] Speaker 02: Hanson case didn't involve the FEPA. [00:09:28] Speaker 04: It did not. [00:09:30] Speaker 02: Right. [00:09:30] Speaker 02: So if we conclude that Hanson didn't touch, [00:09:33] Speaker 02: that piece of Anderson that had construed the FEPA law language to include inducement, then I would think that the DOE panel didn't have the authority to change that. [00:09:47] Speaker 04: I'll agree with you precisely that they didn't have the authority to change it. [00:09:52] Speaker 04: And to the extent they had any authority, it didn't extend to Title 38 where there's no written requirement regulation. [00:09:58] Speaker 02: Let's just stop. [00:09:59] Speaker 02: Let's just stop. [00:10:00] Speaker 02: I mean, don't get greedy. [00:10:02] Speaker 04: OK. [00:10:03] Speaker 04: Figs get fat and hogs get blind. [00:10:05] Speaker 02: Don't get greedy because it's the very government that tells us that we must construe the 7453 language exactly the same as we construe the people language. [00:10:14] Speaker 00: Correct. [00:10:15] Speaker 02: And that seems to be a readable argument. [00:10:18] Speaker 02: And you know what that caused me to do last night when I was looking this case over again? [00:10:23] Speaker 02: I said to myself, when was 7453 enacted? [00:10:26] Speaker 02: It was enacted in 1991, right? [00:10:31] Speaker 02: And in 1991, [00:10:35] Speaker 02: the court had consistently construed IPA to allow inducement to be a form of officially ordered or approved. [00:10:42] Speaker 04: Correct. [00:10:43] Speaker 02: And under the doctrine of legislative ratification, right? [00:10:48] Speaker 00: Yes. [00:10:49] Speaker 02: We are presumed that when Congress uses the same word in another statute, they are intended to mean the same thing as construed by the courts. [00:10:58] Speaker 04: And the argument is present, Your Honor, that Congress ratified the Anderson line of cases applying that. [00:11:04] Speaker 02: That's my point. [00:11:05] Speaker 04: Yes. [00:11:06] Speaker 02: And you say to yourself, well, where does DOE, if DOE is the elephant in the room, where did the DOE get the authority as a matter of power to change the established law that has been ratified by Congress? [00:11:20] Speaker 02: And the answer is they don't have the power. [00:11:23] Speaker 02: We concur. [00:11:23] Speaker 02: It seems to me that your case is really quite simple. [00:11:27] Speaker 04: We believe it's very simple. [00:11:29] Speaker 04: We believe that your analysis is correct. [00:11:30] Speaker 02: I have to hear the government on the ratification point because it's the government who tells us that we must construe 7453 magic words exactly the same as it's construed in FIFA and then the government latches on to do it. [00:11:46] Speaker 02: The government can't latch on to Anderson because it destroys its position, right? [00:11:51] Speaker 04: They cannot, it's correct. [00:11:52] Speaker 02: And so the burden is on the government from my perspective to convince me that Hanson [00:11:58] Speaker 02: erased that part of Doe, pardon me, that part of Anderson that was construing the words in FIFA. [00:12:07] Speaker 02: Not only just Anderson, it is a very consistent line of cases all the way from Anderson right down to Doe 1. [00:12:13] Speaker 03: Correct. [00:12:14] Speaker 03: A consistent line of cases without variation. [00:12:16] Speaker 03: I hate to eat up your rebuttal time, but Judge Clevengers, giving you things with which you can agree, [00:12:24] Speaker 03: And I want to give you an opportunity to deal with things with which you might disagree. [00:12:29] Speaker 03: And that is, I suspect the government's going to say, oh, wait a minute. [00:12:34] Speaker 03: Look at Hanson. [00:12:35] Speaker 03: Look at Anderson. [00:12:35] Speaker 03: Look at Hanson. [00:12:36] Speaker 03: Look at Doe. [00:12:36] Speaker 03: And there's a common thread of equity. [00:12:39] Speaker 03: And that's how the Doe court gets the authority to say, OK, the analysis is the same. [00:12:47] Speaker 04: But the equity principle can't apply in the face of the language of the statute and the legislative ratification that Judge Clevenger has just referenced. [00:12:55] Speaker 02: Well, you're not asking for relief by way of equity? [00:12:57] Speaker 04: We are not. [00:12:58] Speaker 04: We have especially... It's not originally by claim. [00:13:01] Speaker 02: You're not asking for equity in the face of a statute that's in your paper. [00:13:05] Speaker 04: No. [00:13:06] Speaker 04: Originally, the complaint contained two equitable counts, which were dismissed and not appealed. [00:13:13] Speaker 04: To reserve the remaining of my time for rebuttal, Your Honor, I first want to mention that at the end of DOE 2, this court said our predecessor court was legitimately concerned [00:13:25] Speaker 04: that at least in some instances such evasion as the government had used had occurred and that the government in effect was coercing uncompensated overtime. [00:13:36] Speaker 04: That is the case here and we believe that the appropriate action of this court is reversed. [00:13:41] Speaker 04: It remains to be proven. [00:13:44] Speaker 02: You got by rule 11 with your allegation. [00:13:48] Speaker 02: Correct. [00:13:49] Speaker 02: But as Judge Fogel has brought out handful of really very interesting [00:13:54] Speaker 02: hurdles that you're obviously going to face if you get to go back. [00:13:57] Speaker 04: And that's the nature of litigation, and we're prepared to meet them. [00:13:59] Speaker 02: As I say, at this stage, if I were you, I wouldn't be too greedy. [00:14:03] Speaker 04: Well, as my colleague in the back said, pigs get fat, hogs get slaughtered. [00:14:07] Speaker 04: We'll stick with not being greedy. [00:14:09] Speaker 04: Thank you, Your Honors. [00:14:25] Speaker 01: may it please the court. [00:14:26] Speaker 01: We respectfully request that this court affirm the trial court's decision because it properly held that an express directive is not as required for overtime to be officially ordered and approved under the plain language of the statute. [00:14:38] Speaker 01: In this case, plaintiffs admit that they received no such express directive. [00:14:42] Speaker 01: Therefore, the trial court properly found that plaintiffs failed to state a claim upon which release can be granted. [00:14:48] Speaker 01: In this case, the plain language of 7432E requires an official order or approval. [00:14:54] Speaker 01: An official order or approval requires formality. [00:14:57] Speaker 01: In terms of order and approval, it requires some form of communication, either oral or written, expressly directing or confirming work to be done outside the force of an employee's regular business hours. [00:15:10] Speaker 05: So counselors just come down to the words that are used. [00:15:13] Speaker 05: If you look at their allegations as liberally as it requires you to look at them, they're [00:15:20] Speaker 05: The government knows that we can't get the view alerts done in addition to our nursing duties. [00:15:25] Speaker 05: We need to work these additional hours. [00:15:27] Speaker 05: They're telling us we have to do the view alerts. [00:15:31] Speaker 05: They know the work that we're doing. [00:15:32] Speaker 05: So the fact that they don't say, oh, by the way, you have to do it during your own time, the fact that they don't use those express words doesn't change the fact that they are consciously compelling people to work extra time. [00:15:44] Speaker 05: That's essentially what they're alleging. [00:15:46] Speaker 05: So are you saying that there's no claim because they didn't [00:15:50] Speaker 05: use the exact words you need to work outside of your normal work hours? [00:15:58] Speaker 01: Not those specific words in general, but you do need some form of communication expressly directing or confirming after the fact the requirement to work outside the course of your business hours. [00:16:09] Speaker 01: Right. [00:16:09] Speaker 05: But their allegation is they know that the nurses can't get the view alerts done during their normal working hours. [00:16:15] Speaker 05: And nonetheless, they say you have to get them done within X period of time. [00:16:19] Speaker 05: and you put those two facts together, that's express oral direction. [00:16:25] Speaker 01: Your Honor, you have to get them done within some form of time. [00:16:31] Speaker 01: It's not the same as you have to direct work outside the course of your business out. [00:16:36] Speaker 05: Well, I know it's not the same, but if it has the same effect, is the government to say, well, we know that, I mean, again, I'm just looking at what they're alleging. [00:16:45] Speaker 05: As Judge Cleminger points out, I think that they're going to have some problems. [00:16:48] Speaker 05: proving it, particularly on a class-wide basis, but that's not where we're at here. [00:16:53] Speaker 05: They're saying we can't do it during our normal work hours. [00:16:57] Speaker 05: You know that we can't do it during our normal work hours. [00:16:59] Speaker 05: You're telling us we have to do it within this period of time, knowing that the effect is we're going to have to work outside of our normal work hours. [00:17:07] Speaker 05: That's what they're alleging. [00:17:08] Speaker 01: And why isn't that enough? [00:17:12] Speaker 01: an express directive in this case. [00:17:14] Speaker 02: Judge Fogel is asking you why what he had just said doesn't constitute an express direction. [00:17:21] Speaker 01: Because it does not especially direct. [00:17:23] Speaker 02: Why not? [00:17:26] Speaker 02: When somebody knows that the work has to be done, knows that it's going to have to be done after regular work hours. [00:17:35] Speaker 02: And the person who is being told to do the work knows that there are some adverse consequences to it and that they didn't do it. [00:17:42] Speaker 02: Why doesn't that constitute an express direction? [00:17:44] Speaker 02: I think that was a good question. [00:17:46] Speaker 03: Let me just ask a little clarifying one. [00:17:51] Speaker 03: Can these nurses be fired if they fail to [00:17:56] Speaker 03: do this monitoring? [00:17:59] Speaker 01: These nurses are not specifically, as I understand, for failure to do this monitoring, but the nurses certainly could be fired in subject to adverse personnel action for failing to perform the required duties of their job, but that's not... Outside their work hour. [00:18:17] Speaker 01: Well, they actually cannot. [00:18:18] Speaker 01: The nurse can be fired for failing to perform at a satisfactory standard. [00:18:23] Speaker 01: But the statutes actually prohibit nurses from being disciplined for refusing to work outside their work hours. [00:18:30] Speaker 01: They may not be subject to discipline for failing to work outside their work hours. [00:18:34] Speaker 02: So it's the same thing. [00:18:36] Speaker 02: The nurse says, you know, I was unable to finish all of my view alerts during the work hours, right? [00:18:43] Speaker 02: And the boss says, well, you were obligated to do that. [00:18:46] Speaker 02: I couldn't get the job done, so you're fired. [00:18:50] Speaker 02: The failure to have concluded your work view alerts on time is going to get you fired, right? [00:19:01] Speaker 01: No, Your Honor. [00:19:01] Speaker 01: The failure to conclude your view alerts is not going to get you fired. [00:19:06] Speaker 01: If the viewer alerts are certainly pressing matter, there is an approval procedure in place where they may go back after they may go after the fact or seek advance or seek approval. [00:19:15] Speaker 01: And they have done that in their case in several instances. [00:19:18] Speaker 02: They have gone in advance, their supervisors, that I cannot... What's going to happen to the nurse who has worked the eight hours a day and punched the clock? [00:19:26] Speaker 02: I got my eight hours in. [00:19:28] Speaker 02: And they go home and they get a view alert, and the view alert says this view alert must be answered before the beginning of work tomorrow morning. [00:19:36] Speaker 01: That is not actually... That's not an accurate situation. [00:19:40] Speaker 02: What do you mean it's not accurate? [00:19:43] Speaker 02: The allegation and the complaint is that view alerts can come at any time, at any place, [00:19:48] Speaker 02: with any time function on them when to do them. [00:19:52] Speaker 01: But they are not immediate for that nurse at home because what view alerts are, it comes from a misunderstanding and a mischaracterization of view alerts with all due respect, Your Honor. [00:20:02] Speaker 02: What view alerts are is... But that misunderstanding I've got is because you didn't make it clear in your brief what they were. [00:20:09] Speaker 02: Right? [00:20:11] Speaker 01: Perhaps, Your Honor. [00:20:12] Speaker 02: Why doesn't a view alert include something that the nurse receives after she's gone home after eight hours of work? [00:20:18] Speaker 01: nurses are shift workers. [00:20:19] Speaker 01: These view alerts are electronic pop-up notifications that go to an entire team that's caring for one patient. [00:20:26] Speaker 01: There's 24 hours continuity of care, so just because presumably I as a nurse have gone home, there is another nurse on staff caring for that patient at that same time who is receiving that urgent view alert. [00:20:37] Speaker 03: Why do they even have the computer then? [00:20:41] Speaker 03: Why do they get the view alerts when they're off duty? [00:20:45] Speaker 01: They get view alerts just like we would get, those of us who use Outlook email would get a pop-up or a task notification. [00:20:52] Speaker 01: But these computers are given to, not necessarily, first off these computers and VPNs are not given to all nurses. [00:20:57] Speaker 01: Certain nurses are given them and there are specific in the VA handbook off-site duties which they are given for or given to these nurses to perform these off-site duties or the doctors to perform off-site duties. [00:21:08] Speaker 01: As well, they're given to nurses when they do obtain authorization for overtime work, they may use those laptops. [00:21:14] Speaker 03: So they're paid for the off-site duties, which they're directed to? [00:21:18] Speaker 01: Yes. [00:21:18] Speaker 01: Yes, Your Honor. [00:21:19] Speaker 01: They are paid for the off-site duties. [00:21:20] Speaker 01: And that's giving them the means, the laptops, the means to complete authorized off-site duties either during the day. [00:21:26] Speaker 03: And you're saying the norm is that the person, a nurse who receives the view alert, knows that that is not applicable to them because they're not on duty. [00:21:38] Speaker 03: Isn't that a factual question? [00:21:43] Speaker 01: No. [00:21:44] Speaker 01: Well, perhaps in certain contexts, Your Honor, but the view alerts, what they are, are these view alerts go out, these are electronic notifications to an entire panel. [00:21:54] Speaker 01: So what it is, is in many cases, it might be patient X has an allergy notification, patient X needs allergy medicine. [00:22:02] Speaker 03: Well, that's going to go to the care... Let me ask you this, though. [00:22:05] Speaker 03: Supposing what you're saying isn't true. [00:22:08] Speaker 03: Supposing that in fact the nurses are told when this view alert pops up, whether you're on duty or not, you're obligated to deal with it. [00:22:21] Speaker 03: Would that change the government's position? [00:22:25] Speaker 01: If these supervisors with authority and told these nurses that you are obligated to answer this view alert while you are off duty, that could under certain circumstances constitute an express directive. [00:22:39] Speaker 01: to perform work outside of business hours. [00:22:41] Speaker 03: But doesn't the complaint encompass that very allegation? [00:22:45] Speaker 01: No, Your Honor, it does not. [00:22:46] Speaker 01: It does not indicate that it's not what it says. [00:22:49] Speaker 01: It encompasses the fact that these nurses are required to respond promptly to these view alerts. [00:22:54] Speaker 01: It does not actually direct them to perform work outside of business hours. [00:22:58] Speaker 01: Promptly could mean the next day. [00:23:00] Speaker 01: Promptly could mean at any point in time during their shift. [00:23:02] Speaker 02: There's no... Are you saying it directs them not to perform the work outside of regular hours? [00:23:08] Speaker 01: The complaint doesn't, doesn't, does not state that. [00:23:13] Speaker 02: Can I just turn it around a bit? [00:23:15] Speaker 02: I mean, we can argue, we can talk about view alerts until the cows come home because nobody in the briefs really told us what they're all about. [00:23:22] Speaker 02: But it's alleged here and the judge below has said that if inducement works as a theory, she's taking this case to trial. [00:23:31] Speaker 02: She said that. [00:23:32] Speaker 02: Okay, so let's go back and talk about the elephant in the room. [00:23:37] Speaker 02: Tell me what it is about Hanson that affects the interpretation under FIPA of the words officially ordered or approved. [00:23:51] Speaker 01: What Hanson did was Hanson undermined the rationale on which the Anderson line of cases was based. [00:23:58] Speaker 02: Both Hanson and Richmond, Your Honor. [00:24:01] Speaker 02: In what respect? [00:24:03] Speaker 01: Hanson and Richmond, the decisions in Anderson. [00:24:06] Speaker 01: holding that inducement, in this case, what you had was not a valid theory because you could not subject the Federal Treasury to payments that were not authorized by statute. [00:24:18] Speaker 02: Anderson said inducement works even when you have a regulation that requires a writing because we ignore the writing requirement as inconsistent with the pay statute. [00:24:31] Speaker 02: That's what Anderson said. [00:24:33] Speaker 01: Yes, Your Honor. [00:24:34] Speaker 02: Hanson dealing with a [00:24:36] Speaker 02: unrelated statute says you can't ignore the writing requirement. [00:24:41] Speaker 02: The writing requirement is a valid requirement. [00:24:45] Speaker 02: That's what Hanson said. [00:24:47] Speaker 02: You tell me, find some words in Hanson that have to do with the FEPA. [00:24:53] Speaker 01: None, right? [00:24:56] Speaker 02: None. [00:24:57] Speaker 02: And find words in Hanson that have to do with interpreting the statutory phrase officially ordered or approved. [00:25:05] Speaker 02: Answer, no. [00:25:07] Speaker 01: Hanson, Your Honor, though, what it does undermine the rationale of Anderson by finding that you cannot... I agree with you. [00:25:13] Speaker 02: It undermines the rationale of Anderson, which was we can go ahead and award back pay, or there's under the inducement theory, or there's a regulation that says it has to be in writing. [00:25:25] Speaker 02: We'll ignore the regulation. [00:25:27] Speaker 01: It's our position that Hanson is not. [00:25:30] Speaker 02: Let me say this to you so we can kind of get more going. [00:25:33] Speaker 02: Let's assume for purposes of argument that the court doesn't agree with your interpretation of Hanson. [00:25:40] Speaker 02: Let's assume that the court takes the position that Hanson only involves the writing department and that the interpretation of Anderson, that FIFA magic words include inducement, okay? [00:25:54] Speaker 02: then I'm asking you, why didn't Congress ratify that language when it enacted 7453? [00:26:04] Speaker 01: Congress did not ratify that language, Your Honor, because they are different statutes. [00:26:14] Speaker 02: Oh no, wait a second. [00:26:15] Speaker 02: I'm talking about Congress ratifying the language in FIFA, as interpreted by Anderson. [00:26:23] Speaker 02: The doctrine of legislative ratification, I would think, says that Congress is aware of the way Anderson was interpreting and consistently interpreting the FIFA language. [00:26:35] Speaker 02: And so Congress, okay, when they enact a statute using the same language, the legislative ratification rule says we presume that Congress adopted the same interpretation. [00:26:52] Speaker 01: As this court recognized in Doe, Your Honor, there had been significant precedent on both sides. [00:26:58] Speaker 02: And you can... That's a non-starter. [00:27:01] Speaker 02: The significant precedent on both sides was the cases before Anderson and after Anderson. [00:27:09] Speaker 02: Your Honor, they... What argument do you have? [00:27:13] Speaker 02: What authority did the Doe panel have to upset [00:27:19] Speaker 02: a long-standing, congressionally ratified interpretation of deepest of the words officially ordered and approved. [00:27:30] Speaker 02: What power did the DOE panel have to do that? [00:27:35] Speaker 02: You can't overrule a line of precedent when you're in bank. [00:27:41] Speaker 01: Anderson didn't actually interpret officially ordered or approved. [00:27:46] Speaker 01: What Anderson did was said that you cannot [00:27:48] Speaker 01: the inducement is sufficient to satisfy, to, when they fail to give an official, to give the writing, Your Honor, when they fail to satisfy... That can't be so. [00:27:59] Speaker 02: The theory that there has been the statute, the PIPA statute was the same language in Anderson, the magic language as it is now, officially ordered or approved. [00:28:10] Speaker 02: So under Anderson, how, where was the official ordering or approval? [00:28:16] Speaker 02: It's right on the first page of Anderson says because it was induced. [00:28:22] Speaker 02: It was in there by interpreting the language to allow inducement to qualify as a official order or approval. [00:28:32] Speaker 01: In this case, your honor, it's the government's decision that the official as this court recognized in Doe official order of approval does require some form of morality. [00:28:40] Speaker 02: And that is where they get before you do that. [00:28:44] Speaker 02: I just can't write an opinion in which I say, I don't really care what previous precedent of my court says, I'll just write what I think it should say. [00:28:54] Speaker 01: In Title 38, Your Honor, Anderson was a, as in Doe were duplicate. [00:29:01] Speaker 01: Title 38, Your Honor, if it's official order and approval does not include an inducement. [00:29:08] Speaker 02: Well, you've told us that in your briefs that [00:29:13] Speaker 02: that 7453 and Title 38 has to be interpreted the same way that we interpret the language in TIPA. [00:29:21] Speaker 01: Right? [00:29:22] Speaker 01: Yes, Your Honor, they are consistent. [00:29:23] Speaker 02: That's your bedrock principle. [00:29:25] Speaker 01: They are consistent. [00:29:26] Speaker 02: Right. [00:29:27] Speaker 02: And so all I'm saying to you is if you trace through the law up till the time that dose was decided in this court, the law was that inducement satisfies [00:29:42] Speaker 02: an official order or approval. [00:29:47] Speaker 02: That's correct, right? [00:29:51] Speaker 01: And the Anderson line of cases, Your Honor, yes, did hold that inducement was sufficient. [00:29:56] Speaker 02: Under the interpretation of VEPA. [00:29:59] Speaker 01: Was sufficient in those cases, Your Honor. [00:30:02] Speaker 02: So I'm just saying, finally, if you can show me the intervening Supreme Court authority, [00:30:09] Speaker 02: that tells me that inducement is an incorrect interpretation of officially ordered or approved, then I'll rule in your favor. [00:30:19] Speaker 02: But you've got to show me that Supreme Court case. [00:30:22] Speaker 01: We rely on Hanson and Richmond, Your Honor. [00:30:24] Speaker 02: If you're wrong on Hanson, then your case is over, right? [00:30:28] Speaker 01: We respectfully disagree, Your Honor. [00:30:30] Speaker 02: How can you? [00:30:34] Speaker 01: Because, Your Honor, Hanson undermined the rationale [00:30:39] Speaker 01: of Anderson. [00:30:40] Speaker 01: Hanson undermined Anderson and in this case the plain language as well as the other statutes and the precedent of this court as well as the fact that it is consistent with the VA regulations all require some form of formality and some form of express direction in order to satisfy the statutory requirement that over time. [00:31:01] Speaker 02: Where is the VA? [00:31:02] Speaker 02: It's not a VA regulation, it's a handbook, right? [00:31:04] Speaker 01: Yes, and those handbooks are equivalent to regulations. [00:31:07] Speaker 02: They're different between a handbook and a regulation for purposes of deference. [00:31:10] Speaker 02: So where in the handbook is there a requirement of an express right or express direction? [00:31:17] Speaker 01: It's consistent with the policy of the VA in the handbook. [00:31:22] Speaker 02: It's one thing, Counselor, to speak in generalities to the Court. [00:31:28] Speaker 02: They're unhelpful. [00:31:29] Speaker 02: You should cite the language in the manual that supports the argument you're making. [00:31:33] Speaker 01: A-70, Your Honor, in the handbook. [00:31:36] Speaker 02: The words. [00:31:37] Speaker 02: What are the words in the manual? [00:31:38] Speaker 02: Where is it in the record? [00:31:41] Speaker 01: Please. [00:31:41] Speaker 01: The manual, Your Honor, it supports the requirement that overtime be authorized. [00:31:50] Speaker 02: There's no doubt that overtime has to be authorized, otherwise it couldn't be paid. [00:31:55] Speaker 01: Overtime must be demonstrated as wholly supported from the standpoint of emergency and or efficiency in carrying out... Where are you reading from? [00:32:01] Speaker 02: A-70, Your Honor. [00:32:04] Speaker 01: In the general section about the VA's policy on overtime. [00:32:15] Speaker 01: Yes. [00:32:17] Speaker 01: Several facets, several portions of that paragraph support the fact that overtime must be formally authorized, ordered or approved. [00:32:27] Speaker 01: Formally? [00:32:30] Speaker 01: I apologize, Your Honor. [00:32:33] Speaker 02: Be careful with your words, Counselor. [00:32:35] Speaker 01: Must be freshly authorized or approved. [00:32:37] Speaker 01: Where does it say that? [00:32:39] Speaker 01: Several sentences of this general paragraph. [00:32:42] Speaker 02: Pick one and read it for me. [00:32:44] Speaker 01: Each responsible official shall adhere to a policy of authorizing only such overtime as can be readily demonstrated as wholly supported from a standpoint of emergency or efficiency in carrying out responsibilities with due regard to the cost and availability of funds. [00:32:58] Speaker 02: And that could well be the person who is inducing the nurse to do the work. [00:33:06] Speaker 02: I would assume that in the order of things, at this stage in the game, we're assuming that if a nurse is being required to perform this view alert outside of ordinary work art, it's somebody who's telling them to do it. [00:33:22] Speaker 02: A policy of making them do it that's legitimate, right? [00:33:28] Speaker 01: The VA policy is that overtime should only be used when absolutely necessary and is necessary to provide control and prevent the abuse of costs, Your Honor. [00:33:37] Speaker 01: And that's specifically the VA policy. [00:33:40] Speaker 02: Nobody on the other side of this case is arguing the contrary. [00:33:44] Speaker 02: They just want to be paid for the overtime that has been. [00:33:49] Speaker 03: We're running well past time. [00:33:53] Speaker 03: And before I let you sit down, I want to take you to paragraph 15 of the complaint. [00:33:58] Speaker 03: which defines view alerts and says view alerts may be sent from physicians, other providers, pharmacies, and so on. [00:34:08] Speaker 03: They may be sent at any time and at any hour of the day or night. [00:34:12] Speaker 03: View alerts are continuously sent to nurses to complete with no limit as to how many view alerts each nurse may receive or be asked to perform. [00:34:24] Speaker 03: Now, we're taking that complaint as true. [00:34:28] Speaker 03: And if we take it as true, doesn't that sort of take us back to where I asked, doesn't that sort of shoot down your case? [00:34:37] Speaker 01: It does not, Your Honor, because nurses can be asked to perform view alerts at any time during their shift. [00:34:50] Speaker 01: View alerts can pop up at any time. [00:34:51] Speaker 03: But that's not what the complaint says. [00:34:53] Speaker 03: I know what you told me. [00:34:56] Speaker 03: That's why I went and dug up the complaint. [00:34:58] Speaker 03: The complaint is different than that. [00:35:00] Speaker 03: And I, look, I'm not saying you're wrong. [00:35:03] Speaker 03: I'm saying that we have to believe you're wrong. [00:35:06] Speaker 01: View alerts, as the complaint alleges, view alerts must be completed within two weeks. [00:35:10] Speaker 01: And they can come up at any time and they have to be completed at any time. [00:35:13] Speaker 01: But the fact that they must be completed in two weeks is in the case. [00:35:16] Speaker 03: Read the next sentence. [00:35:19] Speaker 03: Under their professional responsibilities as patient advocates, [00:35:23] Speaker 03: Nurses have an obligation to complete all view alerts. [00:35:26] Speaker 01: Complete, but not complete outside the course of their business hours or regular hours. [00:35:30] Speaker 03: Let them die. [00:35:31] Speaker 01: Pardon? [00:35:32] Speaker 03: Let the patient die. [00:35:33] Speaker 01: That's a different situation in this case, Your Honor, because view alerts, their nurses are shift workers. [00:35:38] Speaker 01: They're just because this nurse outside of her business hours- Nobody's saying they're shiftless. [00:35:43] Speaker 01: Pardon? [00:35:44] Speaker 03: No, I'm sorry. [00:35:45] Speaker 03: Go ahead. [00:35:46] Speaker 01: Just because this nurse does not mean that the nurse on call who's responsible for patient care receives that exact same view alert. [00:35:53] Speaker 01: Likewise, these view alerts, for the most part, are not the form of emergency communication. [00:35:57] Speaker 01: It would be derelict on most people's part to communicate an emergency through an electronic pop-up. [00:36:02] Speaker 01: If there were an emergency that impacted patient's life or death, that's communicated via phone call, via on-site walk-ins, but the view alerts are not of that nature. [00:36:14] Speaker 03: Medication may be, though. [00:36:16] Speaker 01: Right, and that's why, if it could be this patient has allergies, that's why it's sent to a team. [00:36:21] Speaker 01: The view alerts are sent to the entire team of nurses and doctors who are responsible for that care and that person on call at that moment who says, who sees, if it were communicated that you had to deliver that medication, it goes to the nurses and the doctors and everybody that is on call for that specific patient to handle during their shift. [00:36:42] Speaker 03: I suspect that what the plaintiffs are [00:36:46] Speaker 03: in fact, alleging in this paragraph is that it's just not within them because of their professional obligation to say, sorry, it's not my job. [00:36:54] Speaker 01: Sorry, it's not my job. [00:36:58] Speaker 01: Their job would be to perform their duties before their work day. [00:37:03] Speaker 01: It might not be in their job to leave their view alert titles, but that is not akin to being required to complete them outside the day and actually check off that they viewed this item. [00:37:13] Speaker 03: You can wrap it up. [00:37:16] Speaker 03: I'll let you. [00:37:17] Speaker 01: With all due respect, Your Honor, the government would requestly express that this court affirm the decision of the trial court because it is properly held that the statutory language as well as this court's precedent and the VA regulations all require an express directive or some form of written direction to complete over time outside basic work weeks. [00:37:37] Speaker 01: Thank you, Your Honor. [00:37:39] Speaker 03: Thank you. [00:37:40] Speaker 03: Well, Mr. Kirk, you have a question. [00:37:46] Speaker 03: a minute. [00:37:47] Speaker 03: Now, we ran over another seven, and I'd give it to you, but I think you'd be a damn cold ass for it. [00:37:52] Speaker 04: Your Honor, I will only take one minute, and I will make two points. [00:37:58] Speaker 04: First, at page 64 of the appendix, section E1, reporting test results. [00:38:04] Speaker 04: Results are communicated to patients no later than 14 calendar days from the date on which the results are available to the ordering practitioner. [00:38:12] Speaker 04: Significant abnormalities [00:38:15] Speaker 04: may require reviewing communication in shorter timeframes, and 14 days represents the outer acceptable limit. [00:38:23] Speaker 04: For abnormalities that require immediate attention, the 14-day limit is irrelevant as the communication should occur in the timeframe that minimizes the risk to the patient, which recognizes that the duty of the Title 38 nurses runs to the patient and not to the VA. [00:38:44] Speaker 04: Thank you, Your Honors.