[00:00:04] Speaker 00:
Good morning.

[00:00:05] Speaker 00:
May it please the Court.

[00:00:05] Speaker 00:
My name is Nick Wazorek.

[00:00:07] Speaker 00:
I represent Secret Service agent Michael Horvath and other similarly situated Secret Service agents in this matter.

[00:00:16] Speaker 00:
Secret Service agents routinely and other federal law enforcement officers routinely put their lives on the line in pursuit of their mission.

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It is a fact that the Secret Service has probably the lowest morale rate in any agency in the federal government.

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And I think one of the explanations for that lies in the fact that this case before your

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your honors today.

[00:00:36] Speaker 00:
This is a case involving an important issue of overtime pay for Secret Service and other federal law enforcement officers.

[00:00:45] Speaker 00:
They pertained to pay equity for Leos, law enforcement officers, and the agency practice of depriving agents of earned overtime for actual time worked.

[00:00:55] Speaker 00:
There are three reasons why the lower court erred in dismissing the class action without providing opportunity for amendment.

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The first and most straightforward issue is the Court's finding that the agency policy of requiring overtime hours be worked consecutively, two hours consecutively, was rational.

[00:01:17] Speaker 00:
In our view, the agency's OPM's decision to include that word totally misconstrues the language of the statute.

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5 U.S.C.

[00:01:29] Speaker 00:
5542E simply says that

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At least two hours of overtime must be worked by the agent in order to qualify for the pay enhancement.

[00:01:40] Speaker 03:
How common is it for an agent to, say, work an hour before the regular work day begins and then work an unscheduled additional hour after the work day is supposed to be over?

[00:01:54] Speaker 00:
As we put into our briefing, at least in Mr. Horvath's case, that happens.

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You can be called into the office early for a meeting.

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You can be asked to stay late for other exigencies to come up during the day.

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We did not.

[00:02:08] Speaker 03:
I'm just wondering, is it a very occasional thing or is it a very regular thing?

[00:02:12] Speaker 03:
I'm trying to just, I'm just curious about the overall.

[00:02:15] Speaker 00:
My understanding, and we were not able to get into that fact as part of the underlying case, but I think if we did, the evidence that would come out would be that these agents are on call and they are often called in early and often told to stay late and often asked to work unscheduled time.

[00:02:37] Speaker 00:
whenever the time is required for it.

[00:02:40] Speaker 04:
The LEAP pay compensates them for all unscheduled overtime, right?

[00:02:46] Speaker 00:
That is what LEAP is intended to do.

[00:02:49] Speaker 00:
That is not what the practice of the agency in this case is.

[00:02:53] Speaker 04:
As we've noted, one of the other... I don't understand that answer.

[00:02:56] Speaker 04:
The question is, does someone have a claim for unscheduled overtime?

[00:03:02] Speaker 04:
And the answer is, as a result of LEAP, no, right?

[00:03:07] Speaker 00:
Leap is intended to compensate for unscheduled overtime.

[00:03:09] Speaker 00:
The overtime we're talking about here in many cases is scheduled overtime.

[00:03:13] Speaker 00:
I understand, though.

[00:03:14] Speaker 00:
Right.

[00:03:15] Speaker 00:
But you're right.

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In the strict sense of what availability pay is, it is intended to compensate for unscheduled overtime.

[00:03:24] Speaker 02:
Do you know what the rationale is behind the regulation requiring consecutive?

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Is there something about consecutive that suggests scheduled?

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Do you know what the rationale is?

[00:03:39] Speaker 00:
I think there is no rationale.

[00:03:41] Speaker 00:
I think it was simply a construct by the agency's regulation to deprive Secret Service agents of overtime if they did not hit that threshold, which could lead to the

[00:03:52] Speaker 00:
result that we described in our briefing, that Mr. Horvath could hypothetically work two sessions of overtime in a given day, each 219 minutes long, or 119 minutes long, and receive overtime because it is not two consecutive hours.

[00:04:09] Speaker 00:
So that would be something like 238 free minutes of time as a result of that regulation.

[00:04:16] Speaker 02:
Can I ask you also, I just want to make sure I understand your position correctly.

[00:04:21] Speaker 02:
Your position is that the statute wasn't ambiguous as to how to calculate the two hours.

[00:04:27] Speaker 00:
As we said in our briefing, plain English is persuasive many times and the phrase at least two hours is not ambiguous.

[00:04:37] Speaker 00:
It's in harmony with multiple other pay statutes across the board in terms of the at least two or at least something.

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So the insertion of the consecutively, we think, is simply an effort to agency's effort to save some money by making Secret Service agents work overtime without compensation.

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So the agency interpretation, we don't think, is due to any deference.

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The plain language dictates the outcome, and we think the court erred in agreeing that the consecutively modifier was appropriate.

[00:05:10] Speaker 03:
Do you want to speak to the Doe opinion?

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in where this court said for a different statute, order or approving over time, we said, well, that could be approval or order in writing.

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It could be verbal, unclear from the face of the statute itself.

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So therefore, it was a reasonable interpretation for the government to come in and say,

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we select that it needs to be in writing as opposed to verbal.

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And now here, I suppose the government is saying, well, when it says an agent has to perform two hours of overtime work, it could be two consecutive hours.

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It could be broken up in different parts of the day.

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On the face of the statute, it doesn't say one way or the other.

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As in Doe, we select the choice of making it consecutive.

[00:06:11] Speaker 00:
In DOE, the issue was interpretation of the ordinance.

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As you said, is it verbal?

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It must be in writing.

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That is different from what is going on here, where the language of at least two hours is not subject to other interpretation.

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It's not subject to written or verbal command.

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It's numbers.

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It's time.

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So the insertion of consecutively into at least two hours is different from the DOE case, because that was an interpretive issue.

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This is not interpretive.

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This is limiting and qualifying.

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And again, it flies in the face of just the plain language meaning of the words.

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And we cited Wexler and Lanthead cases.

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In essence, there is no gap to fill in the phrase at least two hours.

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There is no interpretation required.

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And hence, the agency's desire to limit it and, in essence, cut off overtime is inappropriate in our view.

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issue before the court where we think the underlying court aired was this issue of the so-called flex policy.

[00:07:17] Speaker 00:
So this is one where the agency would, after the work week had been set, call the agent and say, on a Thursday night, you're taking tomorrow off because we need you to work on Saturday, which is a violation of every scheduling provision in five CFRs, Chapter 610.

[00:07:36] Speaker 00:
It's clear the intent behind that was to get agents to work

[00:07:40] Speaker 02:
below here on this issue dismissed for lack of jurisdiction under the Tucker Act, right?

[00:07:45] Speaker 00:
Correct.

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And we think that was improper.

[00:07:47] Speaker 02:
I'm struggling with that.

[00:07:49] Speaker 02:
So why is it that you are able to distinguish the Adams cases, which talk about 6-101?

[00:07:56] Speaker 02:
I realize you're asserting another statute on top of 6-101.

[00:08:00] Speaker 02:
Correct.

[00:08:02] Speaker 02:
But the thing I'm struggling with is that I look at the case law, and it says I'm supposed to look at what

[00:08:08] Speaker 02:
You're really arguing as opposed to what you're saying you're arguing.

[00:08:11] Speaker 02:
And when I look at that, IC 6101, which this court in Adams said is not money-mandating.

[00:08:17] Speaker 00:
The issue in Adams were the agents trying to get clarification of their request for a, quote, basic 40-hour work week.

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So in Adams, that's fair, but that's not a money-mandating question.

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They're trying to solidify their schedules as they had been set, and their schedules were being manipulated.

[00:08:36] Speaker 00:
Here, the money-mandating statute is 5 CFR 610.

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By making someone take a Friday off and work on Saturday, you are depriving that agent of potential overtime premium for the work on the weekend.

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And again, this was a policy that was put in place during seek respiration.

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It's now been abandoned.

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query the question why would the agency abandon this policy if it was ironclad or solid.

[00:09:10] Speaker 00:
We think it was simply a device to again try to limit the liability for overtime pay to agents they were called upon to work during normally premium pace areas.

[00:09:20] Speaker 00:
So I think the Adams case on the jurisdictional question is slightly different because this is a pure money mandating issue.

[00:09:27] Speaker 00:
Their entitlement to their overtime.

[00:09:29] Speaker 03:
You're saying although in Adams we said

[00:09:33] Speaker 03:
Section 6101 is not money-mandating?

[00:09:36] Speaker 03:
Somehow in the context of this case, Section 6101 is money-mandating?

[00:09:43] Speaker 00:
The money-mandating statute, and I'm just spoken, I apologize, it's Section 5542 of 5 U.S.C.

[00:09:48] Speaker 00:
That's the premium-paced section.

[00:09:50] Speaker 00:
So, 6101 gets you to 5542.

[00:09:52] Speaker 03:
I guess that's the concern I have, is that in order for you to have a claim under 5542,

[00:10:00] Speaker 03:
at least under your theory, it is based on a claim that the government violated the scheduling requirements of 6101.

[00:10:11] Speaker 03:
And so, you know, the crux of your argument is really a dispute over 6101, not really necessarily 5542.

[00:10:20] Speaker 00:
Well, scheduling with the impact of them not getting premium pay, because the other element is they were

[00:10:30] Speaker 00:
perhaps given an alternative day off, and if they didn't lose it within that two-week pay period, it was gone.

[00:10:35] Speaker 00:
So they were deprived of that benefit as well, whereas under the ordinance, they should be allowed to take those leave days up through the 26th pay period.

[00:10:42] Speaker 00:
So that was another use it or lose it type argument.

[00:10:45] Speaker 00:
All of these play into an entitlement to money, because all of these play into how overtime is calculated and how the agency can, in our view, at least manipulate overtime to achieve cost savings.

[00:11:00] Speaker 00:
Quickly, the third issue is the so-called 822 scheduling.

[00:11:03] Speaker 00:
This is where the LEAP comes in.

[00:11:05] Speaker 00:
So we think the agency in this case, and this is common among multiple other agencies that we have experience with, they use LEAP as a bank for overtime.

[00:11:15] Speaker 00:
And that is not what LEAP is intended to do.

[00:11:17] Speaker 00:
The statutory definition of LEAP is unscheduled duty.

[00:11:24] Speaker 00:
And the pay enhancement is designed to keep these guys

[00:11:27] Speaker 00:
Some were satisfied in their jobs for being asked to stay late and being asked to stay early, being asked to stay at a post or at a rally or a convention for 16 hours or what have you.

[00:11:36] Speaker 00:
So that enhancement is not an across-the-board allowance to the agency to just calculate 10-hour days in lieu of 8-hour days.

[00:11:46] Speaker 00:
Unscheduled overtime has been morphed into scheduled overtime by the agency, which deprives agents like Mr. Horvath of

[00:11:58] Speaker 00:
the overtime benefit he normally would get.

[00:12:01] Speaker 00:
The agency should know the beginning of each week, what its needs are, and they typically just schedule 40 hours for Mr. Horvath, in his case, Monday through Friday, but routinely ask him to work extra time, work overtime, schedule him for 10 hour days, and in the other example, flex.

[00:12:21] Speaker 00:
So we think that the goal of LEAP has been perverted somewhat

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into just, again, a bank for scheduled overtime, which, again, deprives agents like Mr. Horvath of the ability to obtain the benefit of premium pay.

[00:12:39] Speaker 00:
And the Bradley case we signed in our brief, I think, is exemplary.

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Bradley dealt with the situation after the Oklahoma City bombing where it was unscheduled duty.

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These people had to stay on the job for that period of months while an emergency took place.

[00:12:55] Speaker 00:
Here, the scheduled duty becomes just

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part of the weekly schedule, and again, using LEAP as a credit, which we don't think, legislatively, it was ever intended to be.

[00:13:04] Speaker 00:
And statutorily, it flies in the face of plain language of the statute.

[00:13:10] Speaker 00:
I had asked to reserve a couple of minutes for rebuttal, so if I may, I'll withdraw it now.

[00:13:13] Speaker 00:
Can I ask you one question?

[00:13:14] Speaker 02:
Of course.

[00:13:15] Speaker 02:
I wanted to ask you, I noticed that in your grade brief, you seemed to agree that a regulation by OPM cannot provide jurisdiction under the Trump Act.

[00:13:27] Speaker 02:
Does that mean that you're – are you still pressing with your view that you – that the Court had jurisdiction over your compensatory time argument?

[00:13:37] Speaker 00:
I think that because this is a – implicates the overtime statute, it is money-mandating, and the regulation does get us to jurisdiction because, again, overtime pay is what's implicated, not an interpretation of schedule or how hours are scheduled.

[00:13:56] Speaker 00:
It's how much they're paid.

[00:13:57] Speaker 02:
even though that regulation is an OPM regulation which can't provide jurisdiction under the top direct.

[00:14:03] Speaker 00:
It ties back to the Section 5542 in our view.

[00:14:09] Speaker 04:
Thank you.

[00:14:11] Speaker 04:
Okay.

[00:14:24] Speaker 01:
May it please the court, my name is So Sun Bae on behalf of Defendant Akali, United States, and with me is Steve Javala from the Department of Homeland Security.

[00:14:32] Speaker 01:
As demonstrated.

[00:14:36] Speaker 04:
So we asked questions about 5542E, the exception there, and whether the addition of the consecutive requirement in the regulation is appropriate.

[00:14:50] Speaker 04:
And let's assume for the moment that the statute on its face is ambiguous.

[00:14:54] Speaker 04:
Why is the consecutive requirement a reasonable interpretation of the statute?

[00:15:02] Speaker 04:
There's nothing in the history of the adoption that looked at the Federal Register notice, doesn't say anything about why this is being done.

[00:15:11] Speaker 04:
What is the theory of it?

[00:15:13] Speaker 01:
Your Honor, we also looked and did not find history behind the OPM regulation.

[00:15:18] Speaker 01:
However, we would submit that it's appropriate because, as this court found in Doe, OPM is entitled to offer substantive interpretations of a statute.

[00:15:28] Speaker 04:
That's true, but it's got to be a reasonable interpretation.

[00:15:30] Speaker 04:
It's got to make some sense in terms of the policy of the statute.

[00:15:35] Speaker 04:
Why does imposing a consecutive requirement make sense in terms of the policy of the statute?

[00:15:41] Speaker 01:
Your Honor, one of the policy reasons is that, according to Mr. Hoverdust's own briefing, unscheduled overtime,

[00:15:47] Speaker 01:
such as what this two consecutive hours is about, can be at the agent's discretion.

[00:15:52] Speaker 01:
And the two consecutive hours actually limits the level to which an agent is able to abuse the two hours requirement.

[00:16:02] Speaker 01:
It's unscheduled over time.

[00:16:05] Speaker 02:
How would an agent abuse the two hour requirement?

[00:16:07] Speaker 01:
I'm sorry, I didn't hear you.

[00:16:08] Speaker 02:
Well, I didn't understand what you said.

[00:16:09] Speaker 02:
Did you say the agent abused

[00:16:11] Speaker 01:
No, Your Honor, we're not saying that an agent did abuse the two-hour requirement.

[00:16:15] Speaker 01:
We're saying that the reason for making the two consecutive hours requirement would be that if you did not make the two hours consecutive, it would be easier for agents to, if you would say, game the system in order to reach.

[00:16:28] Speaker 01:
One thing is that the unscheduled overtime is calculated in 15-minute increments.

[00:16:33] Speaker 01:
And because an agent has the discretion in certain circumstances to decide whether they

[00:16:39] Speaker 01:
need to work so-called unscheduled overtime.

[00:16:42] Speaker 01:
If you don't have the two consecutive hour requirement, then an agent could just find that it had to work unscheduled overtime for 15 minutes here and 15 minutes there, rather than what the purpose of the statute is.

[00:16:54] Speaker 02:
But it has to be two hours in total, right?

[00:16:57] Speaker 02:
It would not just 15.

[00:16:58] Speaker 02:
How do you have 15 minutes here, 15 minutes there in one day add up to two hours?

[00:17:04] Speaker 01:
It would be possible, for instance,

[00:17:06] Speaker 01:
an agent worked an hour and a half of unscheduled overtime in the morning and then thought, hey, I have half an hour left, assuming that the consecutive requirement were not there, could say, hey, I have half an hour left, and you're at the end of the day.

[00:17:19] Speaker 01:
And maybe you decide within your discretion that you can work another half an hour of unscheduled overtime in order to hit that requirement.

[00:17:26] Speaker 04:
Why couldn't it happen even if the hours were consecutive?

[00:17:29] Speaker 04:
I'm not sure that I see a greater potential for abuse in situations where it's not consecutive than where it is consecutive.

[00:17:37] Speaker 01:
Your Honor, the reason that it would be less likely to happen if the two hours were consecutive is because the purpose of this section of the statute, as it says, it refers to protective services.

[00:17:48] Speaker 01:
So the scenario in which this was envisioned being used was a scenario, say, if there was a campaign event and the candidates' plane ran late and therefore the campaign event started late and so the agent would have to work two consecutive hours after that.

[00:18:01] Speaker 01:
So in essence, it was meant to compensate agents for times when duties involving protective services were supposed to go a certain amount of time and then they went over.

[00:18:10] Speaker 01:
And the policy was that if they went over by at least two hours, which in this case would almost always be two consecutive hours because it's a campaign event type situation, then they would be eligible for that.

[00:18:22] Speaker 02:
But that's not in the statute.

[00:18:23] Speaker 02:
None of this is in the statute.

[00:18:24] Speaker 01:
Your Honor, I agree.

[00:18:26] Speaker 01:
It is not within the history of the statute or the regulation.

[00:18:29] Speaker 02:
It's not in no history of the regulation either, right?

[00:18:32] Speaker 01:
We checked and we did not find anything on that point.

[00:18:36] Speaker 04:
Is there any interpretation of the regulation?

[00:18:39] Speaker 04:
after it was issued that suggests why it exists?

[00:18:43] Speaker 01:
There may be something in the agency's policy documents, but there is nothing on the record that we have seen.

[00:18:49] Speaker 01:
If this case were to proceed further, we would certainly look to see if there was anything on the record with the agency itself after the regulation was implemented.

[00:18:58] Speaker 04:
You haven't looked?

[00:19:01] Speaker 01:
I know that there are policy documents.

[00:19:03] Speaker 01:
Within the agency that talk about the two consecutive hour requirement, we have not seen anything thus far that explains the reason for this two consecutive hour requirement existing.

[00:19:13] Speaker 01:
But I don't want to foreclose the possibility that such a document exists.

[00:19:17] Speaker 01:
I do know that there are policy documents that do talk about the two consecutive hour requirement as something that's necessary for agents to be eligible for this protective services exception.

[00:19:30] Speaker 03:
And just to confirm, there's no theory that

[00:19:34] Speaker 03:
that you're aware of where making the requirement of the two hours consecutive is somehow a benefit to the agent, whether it's to calculate some type of overtime pay or leap pay or something else.

[00:19:50] Speaker 03:
There's no advantage to the agent.

[00:19:54] Speaker 03:
There's no scenario where it's an advantage.

[00:19:56] Speaker 03:
Is that right?

[00:19:57] Speaker 01:
Your Honor, we are not arguing and have not argued that the two consecutive hours requirement would be an advantage to the agent.

[00:20:04] Speaker 04:
Is it possible that the two-hour consecutive requirement is because two hours of unscheduled overtime looks more like scheduled overtime?

[00:20:17] Speaker 01:
I'm not exactly sure I'm understanding your honor's question.

[00:20:20] Speaker 04:
Well, as I understand the statute that putting aside unscheduled overtime, if there's scheduled overtime,

[00:20:27] Speaker 04:
and you're not compensated for the first two hours of scheduled overtime, and then you are compensated for the additional time worked overtime in addition to two hours, right?

[00:20:39] Speaker 01:
Your Honor, I would say that you are compensated for those first... Wait, wait, wait.

[00:20:44] Speaker 04:
Answer my question.

[00:20:44] Speaker 04:
Is that right or not?

[00:20:45] Speaker 01:
I think it is not right.

[00:20:47] Speaker 01:
As Your Honor said that you're not scheduled for the first two hours of overtime, or sorry, you're not compensated for the first two hours of

[00:20:55] Speaker 01:
Over time, however, you are compensated for that through the leap enhancement.

[00:20:58] Speaker 01:
So it's not that Mr. Horvath is not getting compensated at all for those first two hours.

[00:21:02] Speaker 04:
I'm not talking about the leap enhancement.

[00:21:04] Speaker 04:
I'm talking about the right to additional overtime.

[00:21:07] Speaker 04:
The way the statute is written, if there are two hours of scheduled overtime over the eight hours, you're not compensated for that in terms of additional overtime pay.

[00:21:18] Speaker 04:
You have to work more than those two additional hours to get overtime compensation, right?

[00:21:23] Speaker 04:
Yes, Your Honor, pursuant to 5542D, which explicitly... And so the question is, this seems to be making an exception to that and saying that in some circumstances, unscheduled overtime will count toward that two hours, but it has to be consecutive, unscheduled overtime to qualify, right?

[00:21:46] Speaker 01:
I think I agree with what Your Honor is stating, which is that, yes, the protective services exception does allow for all

[00:21:54] Speaker 01:
hours of overtime after the normal eight hours to be compensated.

[00:21:57] Speaker 04:
So what I'm asking you is the purpose of the regulation to treat unscheduled overtime the same as scheduled overtime if it is in a two-hour block, because it looks more like scheduled overtime.

[00:22:10] Speaker 04:
Does that make sense or does that not make sense?

[00:22:12] Speaker 01:
I understand what Your Honor is saying.

[00:22:13] Speaker 01:
Unfortunately, because we have looked and there does not appear to be a history behind this, I'm not aware of whether that is the purpose of the regulation or not.

[00:22:23] Speaker 04:
I would say that the two hours is the same amount of time that's referred to in subsection D of the same statute, but I don't know whether the intent of that was... Okay, and your problem is that you're not, it seems to me, showing us anything which suggests a coherent purpose to this consecutive requirement.

[00:22:45] Speaker 04:
That's the problem.

[00:22:46] Speaker 01:
Well, Your Honor, again, we would submit that the at least two hours statement is ambiguous.

[00:22:51] Speaker 01:
And because it's ambiguous.

[00:22:52] Speaker 04:
No, no, fine.

[00:22:53] Speaker 04:
It's ambiguous.

[00:22:55] Speaker 04:
I think I agree with you that it's ambiguous.

[00:22:56] Speaker 04:
But you've got to do more than have ambiguity.

[00:22:59] Speaker 04:
You've also got to have a reasonable interpretation that makes sense in terms of the policies of the statute.

[00:23:04] Speaker 04:
You haven't come up with a reasonable interpretation as to why consecutive is a reasonable interpretation of the statute.

[00:23:12] Speaker 01:
Well, as I said in response to Judge Stoll's question,

[00:23:16] Speaker 01:
I think a policy reason would be so that the purpose of the protective services exception is for circumstances involving protective services.

[00:23:25] Speaker 01:
And in that case, it is most likely that those two hours would be consecutive anyway.

[00:23:30] Speaker 01:
And it takes away the potential for abusing the overtime system in order to gain additional overtime not subject to leap in that the agent could, again, break these up into chunks and abuse their discretion.

[00:23:45] Speaker 01:
Whereas if you have the two-hour requirement, because that would just consist of a shift where you have to stay longer, that was not foreseeable.

[00:23:51] Speaker 03:
Is there a statute where, according to what you were saying, the agents have the unilateral discretion on when to work overtime?

[00:24:04] Speaker 01:
Your Honor, I'm not aware of a statute to that point.

[00:24:06] Speaker 01:
But Mr. Horvath makes the point, both in his complaint and in his appellate briefing,

[00:24:11] Speaker 01:
the agents do have some amount of discretion to remain at their post if a foreseeable situation occurs, such as a campaign event going on.

[00:24:20] Speaker 01:
And I don't think that there is dispute between the parties that the agents do have some.

[00:24:25] Speaker 02:
I think the campaign event is going on at which they are posted.

[00:24:28] Speaker 01:
Yes.

[00:24:28] Speaker 02:
And that goes on longer than expected.

[00:24:31] Speaker 02:
That's the situation you're talking about, them having the discretion to stay longer?

[00:24:34] Speaker 01:
No, Your Honor.

[00:24:35] Speaker 01:
That would be the situation for which I think the statute was envisioned, which is a protective services type

[00:24:41] Speaker 01:
situation or that they had to get there earlier than anticipated because the candidate got in earlier.

[00:24:48] Speaker 01:
The discretion which I'm talking about that has a potential for abuse is if you break up the two hours, the agent has the opportunity to then say that they took half an hour here or that they took X amount of time to commute there rather than it simply being a situation of them remaining at their post

[00:25:05] Speaker 01:
for at least a two-hour amount of time, which is what the protective services exception was intended to do.

[00:25:11] Speaker 02:
Just to make clear, this is two hours in one day, right?

[00:25:13] Speaker 01:
This is two hours in one day, yes.

[00:25:15] Speaker 03:
Just so I understand how 5542D and E work together, is it the way that it works is an agent is scheduled to work 12 hours on a particular day, and then if

[00:25:34] Speaker 03:
He or she is scheduled to work 12 hours a day.

[00:25:36] Speaker 03:
Eight of those hours will be regular pay.

[00:25:39] Speaker 03:
The next two will be credited to leap pay.

[00:25:42] Speaker 03:
And then the last two will be scheduled overtime pay compensation.

[00:25:47] Speaker 01:
Yes.

[00:25:48] Speaker 03:
And then now we go to 5542E.

[00:25:53] Speaker 03:
If for some reason that agent is required to, or I guess at his or her discretion, feels like they need to work extra hours,

[00:26:04] Speaker 03:
If that person works two hours of overtime beyond that 12 hours, then what happens?

[00:26:15] Speaker 03:
All four of those hours between hours eight and 12 are now going to be the agent to be collecting overtime pay?

[00:26:24] Speaker 01:
So the exception in E that you just talked about, you would not have to work those 12 hours plus an additional two hours.

[00:26:31] Speaker 01:
It would be that

[00:26:32] Speaker 01:
You have your normal eight hours.

[00:26:34] Speaker 01:
And then if you fall under the protective services exception in E, then any hour above the eight hours you would get scheduled overtime for, as long as two hours of that, two consecutive hours, pursuant to the OPM regulation, are also unscheduled hours.

[00:26:50] Speaker 04:
But you never get overtime compensation.

[00:26:53] Speaker 04:
Forget about the leap aspect of this, but additional overtime compensation until you've worked over 10 hours, right?

[00:27:03] Speaker 01:
Yes, Your Honor.

[00:27:04] Speaker 01:
I think under any interpretation of the statute, you would not get scheduled overtime compensation unless you've worked at least 10 hours.

[00:27:13] Speaker 04:
And that would be... So the question here in 5542E is whether in calculating that 10 hours, you're going to get credit for the unscheduled overtime.

[00:27:24] Speaker 01:
Yes, Your Honor.

[00:27:24] Speaker 01:
I would like to just move quickly, since I'm almost out of time, to the Secret Service's use of flex days.

[00:27:31] Speaker 01:
I'm happy to entertain any questions that Your Honors have regarding the Secret Service's use of this flexing policy.

[00:27:38] Speaker 01:
However, as the trial court pointed out, it lacked jurisdiction over it and pursuant to Adams in which this exact same scenario was posited.

[00:27:46] Speaker 01:
This court has also held that there is no jurisdiction over claims pursuant to the flexing policy.

[00:27:53] Speaker 01:
My final point is that Mr. Horvath

[00:27:56] Speaker 01:
It looks like he is conflating the use of the flexing policy with use of compensatory time off.

[00:28:01] Speaker 01:
He keeps referring to it as compensatory time off.

[00:28:03] Speaker 01:
However, that is a specific practice pursuant to 5 USC 5543, whereas the flexing policy has nothing to do with compensatory time.

[00:28:14] Speaker 01:
So there is no authority under which he would be allowed to get that restored because he had to use it within a two week period.

[00:28:23] Speaker 03:
Can you talk about the regulation 5 CFR

[00:28:26] Speaker 03:
610.121b3.

[00:28:27] Speaker 03:
That was the regulation that Mr. Horvath was pointing to in the briefing about how the regulation seems to contemplate under certain circumstances how agents like him could qualify for premium pay.

[00:28:45] Speaker 03:
Yes.

[00:28:46] Speaker 03:
And so your argument is, well, this is just a little old OPM regulation.

[00:28:51] Speaker 03:
So it's not a money-mandating law that

[00:28:55] Speaker 03:
triggers jurisdiction with the Court of Federal Claims.

[00:28:58] Speaker 03:
Is that right?

[00:28:59] Speaker 01:
Your Honor, yes.

[00:29:00] Speaker 01:
OPM regulations.

[00:29:01] Speaker 01:
OK.

[00:29:02] Speaker 03:
So then I guess I'm wondering, there has to be some route of remedy should the agency somehow violate regulation 610.121b3.

[00:29:15] Speaker 03:
What would be that route of remedy?

[00:29:19] Speaker 03:
If it's not to the Court of Federal Claims, where do they go?

[00:29:22] Speaker 03:
Do they go to the Department of Labor, or what do they do?

[00:29:25] Speaker 01:
Your Honor, I believe that what would happen is that you would be eligible for back pay if you were to establish that the agency knew in advance that it needed to schedule overtime and treated that overtime as unscheduled instead.

[00:29:38] Speaker 01:
However, that is not what happened with the flexing policy.

[00:29:40] Speaker 02:
But that's not the question that was asked.

[00:29:41] Speaker 02:
The question is, you're saying that the Court of Federal Claims is not the right route for resolving the merits of the issue.

[00:29:49] Speaker 02:
So where would somebody go to resolve the merits of that issue?

[00:29:53] Speaker 01:
Your Honor.

[00:29:55] Speaker 01:
Off the top of my head, I'm not sure what avenue someone would go to resolve the merits of a scheduling violation.

[00:30:03] Speaker 01:
I would think that that might be something that they could bring up internally first, but I would have to confer with agency counsel to be able to answer that question for sure.

[00:30:11] Speaker 03:
There has to be some method of resolving this, right?

[00:30:16] Speaker 01:
A scheduling violation?

[00:30:17] Speaker 03:
Yeah, it couldn't possibly be that this regulation is just a

[00:30:22] Speaker 03:
counterfeit regulation.

[00:30:23] Speaker 03:
It's just a collection of words that doesn't really mean anything or have any teeth.

[00:30:27] Speaker 01:
Your Honor, I believe that they could possibly trigger an OIG investigation, but I don't want to say that as an absolute certainty without talking to agency counsel.

[00:30:36] Speaker 01:
But I do believe that they could raise it as a potential violation that OIG could look at.

[00:30:43] Speaker 01:
I understand I'm out of time.

[00:30:44] Speaker 01:
I just wanted to make one last quick point, which is that

[00:30:47] Speaker 01:
Mr. Horvath's own exhibit to his complaint at Joint Appendix, page 50, actually talks about what happens if an agent is unable to use one of their days that they were directed to flex.

[00:30:58] Speaker 01:
And it states on that page that if you are unable to flex, your ATS-AIC, which is a supervisor, knows the protocol for gaining standard overtime.

[00:31:07] Speaker 03:
I'm sorry.

[00:31:08] Speaker 03:
Could we go back to the 5542D and E colloquy?

[00:31:12] Speaker 03:
I got personally lost between the exchange you had

[00:31:17] Speaker 03:
Judge Dyke, could you just run one more time through how you understand this works?

[00:31:24] Speaker 03:
5542 D says you get overtime pay if it's in excess of 10 hours on that day.

[00:31:32] Speaker 03:
5542 E says, well, maybe you're going to get overtime pay if you're doing protective services.

[00:31:41] Speaker 01:
Yes.

[00:31:41] Speaker 03:
And you've got two hours of

[00:31:45] Speaker 03:
unscheduled overtime work.

[00:31:47] Speaker 03:
How do these two work together?

[00:31:49] Speaker 03:
Could you give me another example?

[00:31:50] Speaker 01:
Sure.

[00:31:51] Speaker 01:
So, Your Honor, Subsection E is an exception to Subsection D. Subsection D sets out the general rule, which I think, as Your Honor stated, is that you have to work 10 hours in order to be eligible for any scheduled overtime.

[00:32:05] Speaker 01:
Above that 10 hours, anything else would be compensated by LEAP.

[00:32:09] Speaker 01:
And then Subsection E is an exception to the rule set forth in Subsection D.

[00:32:15] Speaker 01:
And it states that if you are doing protective services that day, which is a specific kind of work that agents can do on that day, the example I used was, say, working at a campaign event that day, then you would be potentially eligible for scheduled overtime for every hour over your standard eight-hour workday, as long as you worked at least two hours of consecutive unscheduled overtime that day, and then at least some amount of scheduled overtime above that.

[00:32:44] Speaker 03:
OK, so but it would be unscheduled, right?

[00:32:46] Speaker 03:
Because it's the at least two hours of overtime work not scheduled in advance.

[00:32:51] Speaker 01:
Yes, Your Honor, the two hour.

[00:32:53] Speaker 03:
So getting back to my original fact pattern of someone working 12 hours of scheduled time, four hours of that would obviously be overtime.

[00:33:05] Speaker 03:
But then the person has to work an additional two hours of unscheduled time

[00:33:13] Speaker 03:
then the four hours above hour eight of scheduled work would all be premium pay?

[00:33:22] Speaker 01:
Yes, Your Honor.

[00:33:23] Speaker 03:
But then the last two hours of that day, the unscheduled time, that would be leap pay?

[00:33:31] Speaker 01:
No, I believe in that situation, Your Honor, that then all six of those hours you would get premium pay for beyond the leap enhancement.

[00:33:40] Speaker 01:
Okay.

[00:33:40] Speaker 04:
Wait, wait, wait.

[00:33:41] Speaker 04:
I'm not sure that's true.

[00:33:42] Speaker 04:
The only way you can get overtime compensation, if you use that term the way I'm using it, is not to include the leap compensation.

[00:33:52] Speaker 04:
The only way you can get overtime compensation

[00:33:55] Speaker 04:
is if under D is if you work more than 10 hours of scheduled overtime.

[00:34:01] Speaker 01:
Yes.

[00:34:02] Speaker 04:
And you get the additional.

[00:34:03] Speaker 04:
But you don't ever get compensated for unscheduled overtime.

[00:34:07] Speaker 04:
What E says is if you have two hours of unscheduled overtime, you can treat that like scheduled overtime and then be compensated for all the scheduled overtime.

[00:34:22] Speaker 04:
above the 10 hours, the original eight hours, plus the two hours of unscheduled, then you get the four-hour schedule, right?

[00:34:30] Speaker 01:
Yes, Your Honor.

[00:34:30] Speaker 01:
I was momentarily confused.

[00:34:32] Speaker 01:
Even under subsection E, you would not get compensated for scheduled overtime for that two-hour unscheduled overtime, but you would then get... Why not?

[00:34:42] Speaker 03:
It says all hours of overtime work scheduled in advance of the work week shall be compensated under subsection A if you're doing protective services

[00:34:53] Speaker 03:
And you're doing two additional hours of unscheduled duty.

[00:34:59] Speaker 01:
Yes, Your Honor.

[00:34:59] Speaker 03:
So then why wouldn't it be all hours of overtime work scheduled, that is to say, between hours 8 to 12 that was scheduled for that day?

[00:35:11] Speaker 01:
Yes, Your Honor.

[00:35:12] Speaker 01:
Under that scenario, you would get compensated for hours 8 to 12.

[00:35:16] Speaker 04:
You just don't get compensated for the unscheduled overtime.

[00:35:20] Speaker 01:
Yes, Your Honor.

[00:35:21] Speaker 01:
I think Your Honor has it exactly right, which is that you would, say you had a 14-hour day as you posit, the first eight hours would be your normal pay.

[00:35:32] Speaker 01:
And this is all assuming protective services.

[00:35:34] Speaker 01:
Hours eight through 12, which were scheduled over time, you would get premium pay pursuant to subsection A for.

[00:35:41] Speaker 01:
And then those two hours of unscheduled overtime would be compensated pursuant to leave in a scenario under subsection E.

[00:35:50] Speaker 01:
If Your Honors have no further questions, we would just respectfully request that this Court affirm the decision of the Trial Court.

[00:36:02] Speaker 00:
Thank you, Your Honors.

[00:36:04] Speaker 00:
And I would point out that as our last two minutes of discussion seem to point out, the Trial Underlying Court did not have a clear path to render its decision, which essentially shut the door on Mr. Harvath in light of these interpretive issues.

[00:36:17] Speaker 00:
Clearly there's ambiguity inherent in these statutes because 5542D conflicts, in part, with 5542E, and both of those conflict with 5545A, the leap statute.

[00:36:30] Speaker 04:
I don't see that they conflict.

[00:36:32] Speaker 04:
The question is how to interpret it.

[00:36:34] Speaker 00:
Well, the example of E being the prime one, a fair reading of E is that for, which is what the ABC has done, scheduled over time

[00:36:46] Speaker 00:
uh... that uh... secret service agent should be entitled to four hours of premium pay under a fair reading of that uh... i think that was worthy of uh... further consideration by the court the the linchpin of this entire case is that the agency's practices have turned unscheduled duty into two hours of scheduled overtime without any compensation to the agent 822 uh... you're essentially getting two agents to do the work of three

[00:37:17] Speaker 00:
That's the lynchpin.

[00:37:21] Speaker 00:
There's reason the Secret Service has this low morale problem.

[00:37:26] Speaker 00:
Part of that is the agency scheduling 12-hour days, saps morale, and we submitted information to trial court at PINIX 179629 regarding the state of morale at the Secret Service agency, which is not good.

[00:37:40] Speaker 00:
So the basic question for this court is how much pay and equity must Mr. Horvath and his colleagues suffer

[00:37:45] Speaker 00:
as a result of an agency trying to extract... In equity?

[00:37:47] Speaker 04:
No, the question is not in equity.

[00:37:49] Speaker 04:
The question is, what's the statute clause?

[00:37:52] Speaker 00:
Well, how much loss of pay under their reading of the statute must they suffer as a result of an agency's decision to try to, in our view, at least manipulate the statutory mandates to deprive them of the overtime they're entitled to.

[00:38:06] Speaker 00:
And with that, I thank you very much for your time.

[00:38:07] Speaker 04:
Okay.

[00:38:08] Speaker 04:
Thank you.

[00:38:09] Speaker 04:
Thank both counsels.

[00:38:09] Speaker 04:
Please submit them.