[00:00:00] Speaker 04:
Sixth one, Adams versus United States.

[00:01:02] Speaker 04:
Mr. Griffin.

[00:01:03] Speaker 01:
Good morning, Your Honor.

[00:01:05] Speaker 01:
Appellants are physical security specialists employed by the United States Secret Service.

[00:01:11] Speaker 01:
They're seeking damages pursuant to the Back Pay Act for pay they allege they normally would have earned, but for the agency's admitted failure to schedule their work days across consecutive days as required by Section 6101 of Title V. When possible.

[00:01:29] Speaker 01:
Your Honor, that's not quite correct.

[00:01:31] Speaker 01:
The statute does say when possible.

[00:01:33] Speaker 01:
But let me point you to the exact language in that clause.

[00:01:37] Speaker 01:
And this is 6101A3B, which says.

[00:01:41] Speaker 02:
The basic 40-hour work week of each federal employee is scheduled on five days, Monday through Friday, when possible.

[00:01:49] Speaker 01:
Right.

[00:01:50] Speaker 01:
When possible applies to Monday through Friday.

[00:01:52] Speaker 01:
And the Monday through Friday component is not at issue in this case.

[00:01:56] Speaker 01:
What the appellants are claiming

[00:01:59] Speaker 01:
is that the agency failed to schedule their five days consecutively and their two off days consecutively as a result.

[00:02:06] Speaker 01:
And that's the same whether their regular work week is Monday through Friday, Tuesday through Saturday, Wednesday through Sunday.

[00:02:15] Speaker 01:
It doesn't matter.

[00:02:16] Speaker 04:
So is there anything in the claim that you're asserting that would entitle your clients to pay that is different from or greater than the pay they actually receive?

[00:02:29] Speaker 01:
There is, Your Honor, but let me preface my answer by saying we don't believe that is the issue here.

[00:02:34] Speaker 01:
The government moved to dismiss only under Rule 12b1, and the Court of Federal Claims purported to dismiss only on that basis.

[00:02:42] Speaker 01:
And the only question under 12b1 on a Tucker Act case is whether the statute

[00:02:50] Speaker 01:
that they're seeking relief under is money-mandating.

[00:02:53] Speaker 01:
That's a plaintiff-neutral question, and that's a fact-neutral question.

[00:02:57] Speaker 01:
You don't have to look at the complaint.

[00:02:58] Speaker 01:
You don't have to look at the facts.

[00:03:00] Speaker 01:
You only have to look at the U.S.

[00:03:01] Speaker 01:
Code and see what the Backpay Act says.

[00:03:04] Speaker 04:
And the Backpay Act says when certain conditions are met... Well, we're not talking about the Backpay Act here, so why don't you, before I forget what my question is, why don't you answer it?

[00:03:15] Speaker 04:
which is when we're looking at the statutory provisions in 61, whatever the number is, is your claim here with respect to a violation of that provision, would it entitle your clients to a pay that is different from or greater than the pay they actually receive?

[00:03:32] Speaker 01:
We believe it does, Your Honor, and we believe we can prove that once we get to the merits of the case.

[00:03:37] Speaker 01:
Let me answer this, and this will reference the Back Pay Act.

[00:03:41] Speaker 01:
I don't think there's a way to avoid it.

[00:03:43] Speaker 04:
Let's talk about the

[00:03:45] Speaker 04:
How would the entitlement change with respect to your clients whether or not there is a violation of that provision?

[00:04:02] Speaker 04:
Monday through Friday, or Monday, Tuesday, Thursday, Friday, and Saturday.

[00:04:07] Speaker 04:
How does that change the amount of pay they are getting?

[00:04:11] Speaker 01:
And so forgive me for veering a little bit, but the question, the way to answer that under the Backpay Act is what they, quote, normally would have earned, but for the unjustified personnel action.

[00:04:23] Speaker 01:
And what we believe these security specialists normally would have earned, but for that,

[00:04:31] Speaker 01:
violation is regular pay for five days during their work week and premium pay for any days they work in addition to that work week.

[00:04:41] Speaker 04:
But your claim here doesn't deal with days in addition to the 40 hours, right?

[00:04:48] Speaker 04:
I thought the claim here dealt with whether you assumed you're working five days and a question is which of those five days are we talking about?

[00:04:56] Speaker 04:
not that they worked five days and then are they entitled to overtime or premium pay for any additional work?

[00:05:02] Speaker 04:
Am I misunderstanding your point?

[00:05:04] Speaker 01:
Yeah, let me break down our theory.

[00:05:06] Speaker 01:
And again, our position is that this goes to the merits of whether these particular plaintiffs can recover, not to whether the statute itself mandates money to a plaintiff who succeeds.

[00:05:16] Speaker 01:
But, so the court understands, our theory has two pieces of it.

[00:05:19] Speaker 01:
One, and let's look just at the five-day work week for this.

[00:05:22] Speaker 02:
Where in the statute does it discuss compensation at all?

[00:05:27] Speaker 01:
In 6101, it doesn't.

[00:05:30] Speaker 01:
6101 is the scheduling statute.

[00:05:35] Speaker 01:
It has to be construed.

[00:05:37] Speaker 01:
But the question under the Backpay Act is, what pay would these employees, quote, normally have earned?

[00:05:44] Speaker 01:
And to do that, you need to look at both.

[00:05:47] Speaker 01:
what shifts they normally would have been scheduled for, and then of course also to the compensation statutes and the overtime statutes to see what pay they normally would have earned for the shifts they normally would have been scheduled for.

[00:05:58] Speaker 03:
But they wouldn't be violating the provision that you're citing if in fact they scheduled them Tuesday through Saturday.

[00:06:06] Speaker 01:
If they just scheduled five days consecutively Tuesday through Saturday, no, that's correct.

[00:06:11] Speaker 01:
They would not be.

[00:06:12] Speaker 01:
But again, that's not what we're claiming.

[00:06:14] Speaker 01:
What we're claiming, just to use that example, and again, we don't know the specific days of the week because we haven't gotten to discovery.

[00:06:20] Speaker 01:
We haven't seen payroll records yet.

[00:06:22] Speaker 01:
But let's say one of our plaintiffs is regularly scheduled Tuesday through Saturday.

[00:06:26] Speaker 01:
What we're alleging happened is

[00:06:29] Speaker 01:
The agency said, okay, work Tuesday, Wednesday, take Thursday off, we're not going to pay you for Thursday, work Friday and Saturday normal, and then also come work again and work Sunday.

[00:06:39] Speaker 01:
So in other words, still working five days, but those five days aren't consecutive as required by this provision.

[00:06:45] Speaker 01:
When possible.

[00:06:47] Speaker 01:
And the two off days are not consecutive as required by this provision.

[00:06:51] Speaker 03:
I'm still trying to understand.

[00:06:54] Speaker 03:
I'm with you on the argument that the when possible might not relate to this two days off.

[00:07:00] Speaker 03:
But even if it doesn't, what is the differential in pay?

[00:07:05] Speaker 03:
Are you saying that somehow they can't have you work on a weekend?

[00:07:11] Speaker 01:
They can have you work on a weekend, but the question, again, under the Back Pay Act is what an employee, quote, normally would have earned.

[00:07:19] Speaker 01:
And the answer, what an employee normally would have earned for working on a weekend, is premium pay.

[00:07:24] Speaker 03:
That's assuming they've already worked five days.

[00:07:27] Speaker 01:
Right.

[00:07:28] Speaker 01:
And that's what we're talking about.

[00:07:30] Speaker 01:
And so let me go back to your question, Judge Proce.

[00:07:34] Speaker 01:
Our merits theory here has two components.

[00:07:36] Speaker 01:
The first is that they should have received regular pay for that day in the middle of the week.

[00:07:40] Speaker 01:
that they didn't receive any pay for.

[00:07:42] Speaker 01:
And I think it helps.

[00:07:43] Speaker 01:
Even if they didn't work on it?

[00:07:45] Speaker 01:
I don't understand.

[00:07:45] Speaker 01:
Yes.

[00:07:46] Speaker 01:
I think it helps.

[00:07:47] Speaker 01:
Let me give you two ways to think about it.

[00:07:49] Speaker 01:
The first is, say our claim was just that.

[00:07:53] Speaker 01:
Say we have full-time employees who are entitled to work as scheduled here, and the agency says, gee, we need to save some money.

[00:08:01] Speaker 01:
Next month, why don't you all come in only four of the five days you're supposed to be scheduled, and we'll just pay you 80%.

[00:08:09] Speaker 01:
How's that?

[00:08:10] Speaker 01:
And the answer can't be, well, I guess that's fine, because 6101 doesn't say anything about money.

[00:08:17] Speaker 01:
The answer is, what pay would they have normally?

[00:08:21] Speaker 01:
The answer is two parts.

[00:08:22] Speaker 01:
First, that that's a violation of 6101, thus a wrongful unjustified or unwarranted personnel action under the Back Pay Act.

[00:08:30] Speaker 01:
And two, this is the second element of the Back Pay Act claim, that the pay they normally would have earned in that situation is for five things, not four.

[00:08:38] Speaker 01:
And so that's what we're claiming there.

[00:08:39] Speaker 03:
But you're not asserting that.

[00:08:41] Speaker 03:
I get why everybody would want two days off in a row.

[00:08:44] Speaker 03:
But you haven't, and it's the second piece of the back pay act that really is the most concerning.

[00:08:52] Speaker 03:
So the question is, you have not alleged that there are personnel that are being forced to work only four days.

[00:09:00] Speaker 03:
No.

[00:09:01] Speaker 03:
You said they get to work five days, they just don't get their two days off.

[00:09:04] Speaker 01:
They do.

[00:09:05] Speaker 01:
That's correct.

[00:09:06] Speaker 01:
And what we're... For two days in a row.

[00:09:08] Speaker 01:
Yes, that's correct.

[00:09:09] Speaker 01:
That's exactly what we're alleging.

[00:09:10] Speaker 01:
And what we're alleging is that they normally would have earned premium pay for one of those days they're working on their weekends, but for the violations... No, not normally because nobody... We're not talking about anyone here who was required to pay to work more than 40 hours a week.

[00:09:28] Speaker 04:
their only entitlement to premium pay or overtime pay for Saturday and Sunday would come if they had worked for five days before that, and we were talking about time over 40 hours, right?

[00:09:40] Speaker 04:
And that's not what we're talking about in this case.

[00:09:42] Speaker 01:
No, I disagree.

[00:09:43] Speaker 01:
I disagree.

[00:09:43] Speaker 01:
You look at the work week, and again, these are questions for the merits.

[00:09:47] Speaker 01:
What we hope to prove on the merits, if we get to that point, is that these individuals

[00:09:55] Speaker 01:
normally would have had to work both the five days for which they were regularly scheduled and that they have overtime on the weekend that they ended up working.

[00:10:04] Speaker 01:
And the reason is that the agency apparently needed them to work on the weekends.

[00:10:10] Speaker 01:
In other words, but for the scheduling violation.

[00:10:12] Speaker 04:
But as Judge O'Malley pointed out a few minutes ago, your claim is for non-consecutive days off, right?

[00:10:18] Speaker 04:
So if you were required to work Tuesday through Saturday,

[00:10:23] Speaker 04:
That would not be a problem.

[00:10:24] Speaker 04:
That would not be something covered by your complaint, even though that includes Saturday.

[00:10:29] Speaker 01:
Right?

[00:10:30] Speaker 01:
No, no.

[00:10:30] Speaker 01:
That's not quite it.

[00:10:32] Speaker 01:
Our contention is that normally, in weeks where the agency needed these individuals to work on their weekends, they would have also normally worked a full five days prior to that.

[00:10:43] Speaker 01:
Thus, their weekends.

[00:10:45] Speaker 03:
But again, the Monday through Friday is when possible, or whatever

[00:10:53] Speaker 03:
the iffy languages.

[00:10:54] Speaker 03:
So the Monday through Friday part you're saying is not on the table.

[00:10:58] Speaker 01:
There is no Monday through Friday part.

[00:10:59] Speaker 01:
This is the same.

[00:11:00] Speaker 03:
Okay.

[00:11:01] Speaker 01:
This is neutral as to which particular days.

[00:11:03] Speaker 03:
Right.

[00:11:04] Speaker 03:
So what you're saying is that sort of any class of claimants that you would be asserting this on behalf of are only those claimants who don't get the two days in a row and who one of the days that they have to work is a weekend day.

[00:11:21] Speaker 01:
Yeah.

[00:11:22] Speaker 01:
Yes, that's the theory.

[00:11:24] Speaker 01:
And let me just go back to the main point here.

[00:11:29] Speaker 01:
I'm trying to get through this to help the court think about this issue.

[00:11:34] Speaker 01:
But our most important position is that we don't believe any of these questions are jurisdictional.

[00:11:41] Speaker 01:
The only jurisdictional question under this court's decision in Fisher and in the cases that followed is whether a plaintiff who successfully pleads and proves a back pay act claim is entitled to money damages against the federal government.

[00:11:55] Speaker 01:
If that's true, and it certainly is,

[00:11:58] Speaker 01:
Then there's jurisdiction.

[00:11:59] Speaker 01:
And all these questions that you're asking, they're not bad questions.

[00:12:03] Speaker 01:
But the problem is, they're questions that should come up under 12b6.

[00:12:08] Speaker 01:
They're questions as to whether the plaintiffs sufficiently fled a claim for relief, and ultimately whether they can prove it, not whether the Back Pay Act is a money-mandating statute.

[00:12:21] Speaker 01:
That's the only jurisdictional question.

[00:12:25] Speaker 01:
OK, you're into your rebuttal.

[00:12:26] Speaker 01:
Why don't we hear from the government?

[00:12:38] Speaker 00:
Good morning, Your Honor.

[00:12:38] Speaker 00:
May it please the court?

[00:12:40] Speaker 02:
If nothing else, counsel makes a good argument why the Secret Service consistently has the lowest satisfaction ratings among its employees of any federal agency.

[00:12:51] Speaker 00:
Well, Your Honor, I certainly can appreciate that everybody would prefer to have two consecutive days as a weekend.

[00:12:59] Speaker 00:
I personally would also would like that.

[00:13:03] Speaker 00:
The question is whether 6101A3B

[00:13:06] Speaker 00:
is a money-mandating provision such that the court of federal claims can exercise jurisdiction over the plaintiff's claim.

[00:13:15] Speaker 03:
So what about the last point that your friend on the other side is making, which is all of this is interesting, but it really goes to a 12b6, not a jurisdictional analysis?

[00:13:28] Speaker 00:
We respectfully disagree.

[00:13:29] Speaker 00:
We believe that the court of federal claims did correctly decide this under 12b1 and that the court of federal claims correctly looked at

[00:13:36] Speaker 00:
the text of 61A3B and answered two questions.

[00:13:41] Speaker 00:
I mean, whether a substance of law provides jurisdiction to the court of federal claims is answered if that statute can be fairly interpreted as a mandating compensation by the federal government for damage sustained.

[00:13:56] Speaker 00:
And this statute is neither a pay statute, which provides that pay shall be

[00:14:01] Speaker 00:
given for certain activities, nor does it direct any consequence for an agency's failure to comply with the statute.

[00:14:10] Speaker 00:
We disagree that the agency has violated the statute, but just looking at the text of the statute... Well, how is it not violating the statute if it doesn't give them two days off in a row?

[00:14:22] Speaker 00:
Because this statute provides for a policy that

[00:14:31] Speaker 00:
this is the way that the schedule should normally be.

[00:14:36] Speaker 03:
So you're saying, as a grammatical matter, you think that that language that says when possible relates to all of it and not just to the first clause?

[00:14:45] Speaker 00:
Well, I think there's two answers to the questions.

[00:14:46] Speaker 00:
First is the text of A3, which says, except when the head of an agency determines that it's organization.

[00:14:55] Speaker 00:
would be seriously handicapped by, or that its costs would be substantially increased.

[00:15:01] Speaker 00:
So there's a carve-out.

[00:15:04] Speaker 03:
But that's a merits determination.

[00:15:05] Speaker 03:
We don't know that that determination has been made.

[00:15:08] Speaker 03:
We can't, at a jurisdictional point, say that yes, the agency can establish that it made that determination.

[00:15:19] Speaker 00:
No, but what I'm suggesting is that... You're talking about the structure of the statute.

[00:15:25] Speaker 00:
The preface to that, to the scheduling requirement, or the scheduling preference, is already affording the agency some discretion in how it schedules employees and with perspective both on Monday through Friday and the two days outside the basic work week.

[00:15:49] Speaker 00:
But again, even assuming that

[00:15:54] Speaker 00:
that there was not that discretion afforded to the agency within the statute.

[00:16:02] Speaker 00:
The problem that the plaintiffs have is that this is not a pay statute where there's language directing pay, and Congress has not provided a financial or monetary consequence for any alleged violation of the statute.

[00:16:17] Speaker 00:
And the Back Pay Act does not provide that additional jurisdiction.

[00:16:21] Speaker 02:
It seems to me you can rely on Spagnola, which

[00:16:24] Speaker 02:
which is cited by your opponents.

[00:16:28] Speaker 00:
Spegnola was exactly where I was going to next direct the court.

[00:16:32] Speaker 00:
At the end of that decision, the court says, unless some other provision of law commands the payment of money to the employee for the unjustified or unwarranted personal action, the Back Pay Act is inapplicable.

[00:16:45] Speaker 00:
In other words, the jurisdiction that's provided by the Back Pay Act is, as this court has said, merely derivative in nature.

[00:16:53] Speaker 00:
And just as by way of explanation, oftentimes the reason that plaintiffs do cite the Backpay Act in these types of complaints is because of the remedies that are afforded by the Backpay Act, specifically interest and attorney's fees.

[00:17:06] Speaker 00:
And if the court looks at the complaint, that's precisely why the Backpay Act was cited by the plaintiff.

[00:17:13] Speaker 00:
It was not because it was viewed as an independent source of court of federal claims jurisdiction.

[00:17:19] Speaker 03:
Is there any remedy at all for the fact that this provision, discretionary or not, is being ignored?

[00:17:31] Speaker 00:
Well, first, I would say that this policy has ended.

[00:17:34] Speaker 00:
But second, to the question of whether there's a remedy or where that remedy would lie, these employees could have

[00:17:44] Speaker 00:
requested or could have filed a grievance internally with their agency if they believe that this policy or personnel policy wasn't compliant with the statute.

[00:17:56] Speaker 00:
Perhaps they could have filed in district court.

[00:17:59] Speaker 00:
I would have to think about that a little bit.

[00:18:02] Speaker 00:
But the question here is really the narrow question of is there a monetary remedy in the court of federal claims?

[00:18:07] Speaker 00:
and under this court to well settle precedent and Supreme Court precedent, it's plainly not.

[00:18:13] Speaker 00:
It's not a pay statute.

[00:18:14] Speaker 00:
It's not a statute that directs a financial consequence as a result of any failure to comply.

[00:18:21] Speaker 04:
So are you suggesting that the grievance process or otherwise the only relief would have been stop doing this prospectively, that they would not have been able to get some sort of relief for prior acts, for example,

[00:18:38] Speaker 04:
I'm an arbitrator and I'm going to award you an additional five days worth of comp time in order to compensate for the fact you didn't get your two days off.

[00:18:51] Speaker 00:
I'm not sure what kind of remedies might have been available under those.

[00:18:56] Speaker 04:
But if I'm right that there are remedies available that involve the payment of money or something that's of value,

[00:19:05] Speaker 04:
then why doesn't that hurt your argument here under 12B1?

[00:19:12] Speaker 00:
Because the narrow question here is, does 6101A3B, is it a money-mandating statute?

[00:19:20] Speaker 04:
Well, what if we were to litigate this case and conclude that everything about it had been violated?

[00:19:27] Speaker 04:
In fact, that the head of the agency had not only not made that determination, but it made the opposite determination.

[00:19:34] Speaker 04:
And when possible, there was a showing that it was completely the opposite.

[00:19:40] Speaker 04:
What would be the relief that they could secure based on those findings?

[00:19:48] Speaker 00:
I'm not sure that there would have been any financial or monetary relief that would have been afforded.

[00:19:55] Speaker 04:
Well, it's hard for me to accept the not sure that it would have.

[00:20:00] Speaker 04:
I mean, the question we have here is, is it absolutely clear that there would have been no monetary relief rewarded?

[00:20:06] Speaker 04:
That's the question, is it not?

[00:20:10] Speaker 00:
No.

[00:20:10] Speaker 00:
The question is, is this the type of statute for which money?

[00:20:16] Speaker 02:
You're arguing that there's no monetary relief under this statute.

[00:20:19] Speaker 00:
Under this statute.

[00:20:20] Speaker 00:
Now, accepting the question that the Court of Federal Claims would have exercised jurisdiction

[00:20:25] Speaker 00:
and determine, you know.

[00:20:27] Speaker 02:
There's certainly an argument they could have made, for example, as a whistleblower that this adversely impacts the efficiency of the agency and its employees.

[00:20:36] Speaker 00:
I mean, perhaps that might have been a claim that they could have brought to the Office of Special Counsel.

[00:20:41] Speaker 00:
It would not be a claim that they could bring to the Court of Federal Claims.

[00:20:46] Speaker 00:
Distilled to its essence, the argument appears to be, well, we used to be

[00:20:52] Speaker 00:
working more than 40 hours.

[00:20:53] Speaker 00:
And as a result of that, we were getting premium pay and overtime pay.

[00:20:58] Speaker 00:
But there's no right to work overtime.

[00:21:02] Speaker 00:
Certainly, there's a right to pay if you perform overtime.

[00:21:04] Speaker 00:
But there's no right.

[00:21:06] Speaker 00:
So their expectation or their hope that they might have earned more money beyond the 40 hours a week does not provide the court of federal claims with jurisdiction under the statute.

[00:21:23] Speaker 00:
I'd just like to briefly address Worthington, because I think that was one of the cases that the parties had some briefing on.

[00:21:33] Speaker 00:
But the plaintiff cites to Worthington this court's decision in 1999 as a basis for alleging that the Back Pay Act is money-mandating.

[00:21:43] Speaker 00:
And that was a case in which an employee was

[00:21:49] Speaker 00:
forcibly put on a compressed work schedule where the employee was working more than eight hours a day.

[00:21:55] Speaker 00:
And under that specific statute, there are limited legal reasons why an employee can be put

[00:22:08] Speaker 00:
a compressed work schedule.

[00:22:09] Speaker 00:
And so where that had not happened and the plaintiff had, in fact, worked more than eight hours a day, the statute does provide that overtime pay shall be paid.

[00:22:22] Speaker 00:
So aside from sort of generally understanding the flexible schedules act as a scheduling statute, in fact, there was specific statutory language in 612382 that directed the payment of overtime

[00:22:37] Speaker 00:
where overtime was worked.

[00:22:39] Speaker 00:
So that is the distinction between Worthington and the scheduling statute at issue in this case, which, as we have explained and the trial court correctly found, is a statute that provides a preference for how schedules should be.

[00:22:52] Speaker 03:
But in that case, the overtime was only calculated because there were, I mean, if you put it all together, they weren't really working overtime.

[00:23:01] Speaker 03:
They were just in a compressed schedule.

[00:23:02] Speaker 03:
And in this case, they're in a schedule where they're technically working what would be in overtime hours.

[00:23:09] Speaker 03:
And in Worthington, he was technically working what would be overtime hours, but was not working more than 40 hours a week, right?

[00:23:15] Speaker 00:
I think that the facts of Worthington are a little... He was working more than eight hours a day.

[00:23:23] Speaker 00:
He was working more than eight hours a day.

[00:23:25] Speaker 00:
That's absolutely correct.

[00:23:27] Speaker 02:
Which is in violation, well, not in violation of the statute, but in titles into compensation on the statute.

[00:23:32] Speaker 00:
Correct.

[00:23:34] Speaker 00:
In this case, the allegations that the plaintiffs have made is that they were required to work five days a week for eight hours a day.

[00:23:40] Speaker 00:
And the dispute is about which of those five out of seven days they were required to work.

[00:23:48] Speaker 00:
So we believe that that's the distinction that can be drawn there.

[00:23:51] Speaker 00:
And certainly to the extent that this court in Worthington said something different than what this court said in Spagnola, this court should follow Spagnola.

[00:24:02] Speaker 00:
For these reasons, we would respectfully request that the court affirm the partial judgment of the Court of Federal Claims.

[00:24:09] Speaker 04:
Thank you.

[00:24:22] Speaker 01:
I would like to, I think Judge Prost and Judge O'Malley, you got to the core of the jurisdictional question at issue here, which is,

[00:24:31] Speaker 01:
not whether these particular plaintiffs can recover on a particular factual ledge, but whether if some plaintiffs were successfully to prove whatever they need to prove to recover under this, there's a potential for monetary recovery at the end.

[00:24:45] Speaker 01:
And if the answer to that question is yes, then there's jurisdiction.

[00:24:49] Speaker 01:
And the simple answer to, I believe it was judgmental.

[00:24:56] Speaker 02:
But you also have to have alleged that they're working more than 40 hours.

[00:25:00] Speaker 01:
We don't.

[00:25:01] Speaker 01:
That's not the question under the Backpay Act.

[00:25:02] Speaker 01:
The Backpay Act doesn't say, doesn't measure damages against working more than 40 hours or not working more than 40 hours.

[00:25:10] Speaker 01:
It measures it against the paid quote an employee normally would have earned.

[00:25:14] Speaker 01:
That's the benchmark and that's what we're looking at.

[00:25:17] Speaker 01:
And on the question of what remedy is there, I think it was Judge O'Malley who said, well, what remedy is there?

[00:25:25] Speaker 01:
if there is a violation of 60-101, if this scheduling isn't done right.

[00:25:30] Speaker 01:
And the answer to that is the Back Pay Act.

[00:25:33] Speaker 01:
The Back Pay Act has two elements.

[00:25:37] Speaker 01:
First, that a personnel action was unwarranted or unjustified, which a violation of the scheduling requirements would be.

[00:25:44] Speaker 01:
And second, that an employee earned less pay than they normally would have earned as a result.

[00:25:50] Speaker 01:
And that's exactly what we hope to prove on the merits.

[00:25:53] Speaker 01:
And that is also exactly

[00:25:55] Speaker 01:
why the court found jurisdiction in the Worthington case.

[00:25:59] Speaker 01:
That case is directly on point and should and all right control here.

[00:26:03] Speaker 01:
The only difference between Worthington and here is that Worthington was alleging a violation of a different scheduling statute in combination with the Backpay Act.

[00:26:16] Speaker 02:
It doesn't that statute specifically provide for payment of additional monies when the employee is required to work

[00:26:25] Speaker 01:
more than eight hours during the day?

[00:26:38] Speaker 01:
And what it does is it provides an alternate set of rules to 6101.

[00:26:44] Speaker 01:
It says normally you have to reschedule for five, eight hours a day to get your 40 hours.

[00:26:50] Speaker 01:
An agency can offer under the Flexible Schedules Act for an employee to work longer days with more days off.

[00:26:56] Speaker 01:
In other words, you can work nine-hour days for the first nine days of a two-week period and then have the tenth day off.

[00:27:03] Speaker 01:
Under 6101,

[00:27:05] Speaker 01:
that would be more than 40 hours in that first week, it would be 45, and that would be overtime.

[00:27:09] Speaker 01:
The Flexible Scheduling Act says that's not going to be overtime because you're allowed to do that.

[00:27:14] Speaker 01:
That's not a payment statute.

[00:27:15] Speaker 01:
It's a scheduling statute.

[00:27:16] Speaker 01:
The same as 6101.

[00:27:18] Speaker 01:
Worthington is the same.

[00:27:20] Speaker 01:
And I'm almost out of time.

[00:27:22] Speaker 01:
Let me conclude with a point about Spagnola v. Stockman.

[00:27:26] Speaker 01:
That case, this court was reviewing a dismissal under 12b6 and only under 12b6.

[00:27:34] Speaker 01:
When the court talks about the Backpay Act as being derivative, it's only talking about the substance because that was all that was at issue.

[00:27:42] Speaker 01:
In other words, the Backpay Act itself doesn't define whether a personnel action is unwarranted.

[00:27:47] Speaker 01:
You have to look to another statute for that on the substance.

[00:27:50] Speaker 01:
That's the scheduling statute.

[00:27:52] Speaker 01:
Spaniela says nothing about jurisdiction because it wasn't a 12b1 case.

[00:27:57] Speaker 01:
Thank you.

[00:27:58] Speaker 01:
We thank both sides.

[00:27:59] Speaker 04:
The case is submitted, and that concludes our proceedings for this morning.

[00:28:04] Speaker 03:
All right.