[00:00:00] Speaker 01: For argument today, we have case 23-1823, Lesko versus United States. [00:00:08] Speaker 01: Council, how do I pronounce your name? [00:00:10] Speaker 01: Dimitris Korvelis. [00:00:11] Speaker 01: Mr. Korvelis, please proceed. [00:00:14] Speaker 05: Chief Justice Moore, may it please the court. [00:00:16] Speaker 05: My name is Dimitris Korvelis, and I represent the appellant in this case, Gillian Lesko, who's here in person with us today, recognizing the importance of what this case is about. [00:00:26] Speaker 05: It should not be the law of this country that federal workers who are required to and do perform work are not paid for it. [00:00:35] Speaker 05: And indeed, it is not the law, because Section 5542A mandates that overtime pay shall be given to workers who perform their work when it is officially ordered or approved. [00:00:49] Speaker 05: Under the government's interpretation of officially ordered and approved, however, even if your boss expressly orders you to work overtime, tells you you will be fired if you don't, tells you you'll get paid, don't worry about it, and you do perform the work, you actually will not get paid unless the order is reduced to writing. [00:01:13] Speaker 01: Well, counsel, forget about whether it's reduced to writing. [00:01:16] Speaker 01: Not every supervisor [00:01:18] Speaker 01: within the rubric of the government or any particular agency is imbued with the official authority to approve over time. [00:01:26] Speaker 01: Is that correct? [00:01:28] Speaker 05: That is correct, Your Honor. [00:01:29] Speaker 01: So it may be the case that your boss, even if they did it in writing, wouldn't actually be able to bind the government to overtime. [00:01:38] Speaker 05: Yes. [00:01:41] Speaker 05: Beyond whatever questions the court might have about the contents of the party's briefing, there's four main considerations I'd like to emphasize today. [00:01:48] Speaker 05: One is the great injustice done to federal workers by the current state of the law on Section 1542A. [00:01:55] Speaker 05: Secondly, our appreciation for the fact that the relief we're seeking in this case, for this court to recognize that some of its precedents on this topic are in conflict and in need of resolution, and perhaps one of them should be set aside, is an extraordinary remedy. [00:02:11] Speaker 05: But there are reasons in this case to employ that remedy. [00:02:15] Speaker 05: Third, [00:02:17] Speaker 05: An update, really, for the court about the current state of the law concerning how the lower courts have been applying local rights since the Supreme Court issued it over a year ago. [00:02:26] Speaker 05: And fourth, the potential scope of the order that the court might issue in this case. [00:02:33] Speaker 05: First, the great injustice done to federal workers. [00:02:36] Speaker 05: Your Honors, the Court of Federal Claims in this case. [00:02:38] Speaker 02: We're not a policy body dealing with the injustice. [00:02:42] Speaker 02: We're dealing with the statute and the regulation. [00:02:47] Speaker 05: Well, that's correct, Your Honor. [00:02:49] Speaker 05: But nonetheless, in both the cases that address this topic, excuse me, in the order in this case, the court lamented the result. [00:03:01] Speaker 05: And in Doe, at the end of that decision, the court acknowledged that there was a real concern about the government evading the requirements of FIPA, and in effect, coercing uncompensated overtime. [00:03:17] Speaker 05: So it's partially a policy argument, yes, but it's also an issue about the government circumventing legal requirements. [00:03:24] Speaker 09: OK, but the real issue is whether this regulation, which requires that the order or approval be in writing, is valid or invalid. [00:03:35] Speaker 09: And we've asked you to focus on Loper-Brite and what the consequences of Loper-Brite might be for the validity of the regulation. [00:03:45] Speaker 09: Loper-Brite is a case that dealt with the regulation of the private sector. [00:03:52] Speaker 09: Every case cited in Loper-Brite dealt with federal regulation of the private sector. [00:04:00] Speaker 09: In a way, this area seems somewhat different. [00:04:04] Speaker 09: It's not a regulatory situation. [00:04:08] Speaker 09: It's a situation where there's a regulation governing the relationship between employer and employee and the federal government. [00:04:16] Speaker 09: And under those circumstances, OPM was created to govern that relationship. [00:04:25] Speaker 09: Why is it that OPM lacks the regulatory authority to define what kind of approvals are required? [00:04:33] Speaker 09: Certainly, you must agree that OPM can define who has authority to approve both sides over time, right? [00:04:45] Speaker 05: uh... yes i think the answer to your question is you have to look at the statute you have to look at the statute with the statute mandates and what the best interpretation of the statute is so some regulations under the statute dealing with overtime are permissible including defining who has the authority right yeah this brings you this right that brings me uh... relates to my third if opium can [00:05:08] Speaker 09: issue regulations under the statute, why is it, if it can define who has the authority, why can't it define how that authority is to be exercised, that is, in writing? [00:05:22] Speaker 05: Because there's a difference between interpreting statutory language, which is the job of the courts, [00:05:29] Speaker 05: and providing details about, for example, examples of what might fall within that statutory language. [00:05:35] Speaker 09: I don't think you're answering my question. [00:05:37] Speaker 09: My question is, if the regulations can define who has the authority to issue overtime, why is it that the regulations can't also define how that authority is to be exercised? [00:05:50] Speaker 05: Well, again, I think the answer, I think, does turn on you have to look at the statute. [00:05:55] Speaker 05: The Supreme Court last term decided the seven county cases. [00:06:00] Speaker 08: Does the statute tell you how overtime has to be approved? [00:06:06] Speaker 05: No. [00:06:06] Speaker 05: Well, yes. [00:06:07] Speaker 05: Yes, it does. [00:06:08] Speaker 05: It says it has to be officially. [00:06:10] Speaker 05: It has to be officially ordered. [00:06:11] Speaker 05: I mean, it doesn't say the mechanics, no. [00:06:13] Speaker 08: Yeah, it doesn't tell you the mechanics of it. [00:06:15] Speaker 05: That's true. [00:06:15] Speaker 08: And so OPM can probably get regulations on the mechanics of how it's approved, right? [00:06:20] Speaker 05: to the extent that it does not contradict a judicial interpretation of the statute. [00:06:27] Speaker 05: But the problem here is it does contradict a judicial interpretation of the statute. [00:06:31] Speaker 05: That's the problem. [00:06:32] Speaker 08: What judicial interpretation does it contradict? [00:06:36] Speaker 05: It contradicts the judicial interpretation since Anderson that officially ordered in a- We're sitting on bunk. [00:06:42] Speaker 08: We can throw out every single one of those judicial interpretations and look at the statutory language ourselves. [00:06:47] Speaker 05: Yes, you could. [00:06:49] Speaker 08: And where in the statutory language, I think you just said, it doesn't say how to officially order and approve. [00:06:58] Speaker 08: It just says it has to be officially ordered and approved. [00:07:00] Speaker 08: You already agreed that OPM can define who is the authority. [00:07:05] Speaker 08: If the statute doesn't say how, and Congress could have put in how to do it, then why doesn't OPM have the authority? [00:07:13] Speaker 05: Again, I think the answer to that is, and the Supreme Court [00:07:17] Speaker 05: most recently spoke about this in the Southern County cases case, where it talked about, for example, the use of the word in a statute, detailed. [00:07:26] Speaker 05: And it said, the courts define what detailed means. [00:07:31] Speaker 05: But an agency might give you examples of what details mean. [00:07:36] Speaker 05: So there's a difference between interpreting the statutory language and then adding up details. [00:07:42] Speaker 05: Where Congress has spoken, which they have, Congress used language it intended, officially ordered and approved. [00:07:48] Speaker 05: And yes, this court is empowered to throw out all of these precedents. [00:07:51] Speaker 05: But should it? [00:07:51] Speaker 05: The question about the interpretation of official order that approves interpretation, there's no reason for that to have changed in the last 70 years. [00:08:00] Speaker 03: Can I follow up on? [00:08:06] Speaker 03: which is that OPM can define who has the authority to order or approve overtime. [00:08:18] Speaker 03: Is that from 5542, 5548, or some other statute? [00:08:26] Speaker 03: Why is it not the case that whatever authority an agency head has to direct employees [00:08:36] Speaker 03: to work overtime and then to subdelegate that comes from somewhere other than 5542. [00:08:45] Speaker 03: I'm trying to understand whether 5542 presumes that somewhere there is [00:08:55] Speaker 03: a proper delegation of authority through supervisors, whether that comes from 5542 and then OPM gets to specify it in 5548 or what? [00:09:10] Speaker 05: I think the answer to that is [00:09:14] Speaker 05: Loper-Bright tells us, step one is, what is the best reading of the statute. [00:09:18] Speaker 05: My arguments here do presuppose we are retaining the interpretation from Anderson that Mercier also said remain good law. [00:09:26] Speaker 05: If that's not the case, if the court's inclined to not retain that. [00:09:31] Speaker 03: At least for my purposes, and I suspect some others, just assume that we're looking at this fresh, OK? [00:09:38] Speaker 05: Well, if we're looking at this fresh, then I would argue we should adopt the interpretation that was previously adopted for the reasons of dictionary definitions, for the reason that the plain language is broad enough to encompass both oral and written orders. [00:09:56] Speaker 05: And once you have that judicial interpretation, [00:10:00] Speaker 05: The agencies can regulate where they need to, pursuant to the delegation of necessary to administer. [00:10:07] Speaker 05: They can regulate. [00:10:08] Speaker 05: They can fill in the details. [00:10:09] Speaker 05: Yes. [00:10:10] Speaker 05: But once those details cross the line into encroaching upon the judicial interpretation, there is a problem. [00:10:17] Speaker 09: But the statute doesn't tell you whether the order or approval has to be in writing or not, right? [00:10:25] Speaker 09: It's silent about it. [00:10:26] Speaker 00: Council, are you aware? [00:10:28] Speaker 00: I'm sorry. [00:10:29] Speaker 00: Answer his question. [00:10:30] Speaker 00: I'm sorry. [00:10:31] Speaker 05: I jumped ahead. [00:10:33] Speaker 05: In Doe, the court acknowledged that the plain language of the statute was broad enough to encompass both written and oral. [00:10:40] Speaker 05: Does it explicitly say that? [00:10:42] Speaker 05: No. [00:10:43] Speaker 05: But the best reading of- So it's silent? [00:10:46] Speaker 09: No? [00:10:47] Speaker 05: Congress spoke to the issue, and it said officially ordered and approved. [00:10:51] Speaker 09: And if the courts are looking anew at what... You haven't spoke to the issue of whether it had to be in writing? [00:10:57] Speaker 05: Not explicitly, no. [00:10:59] Speaker 05: But by virtue of what the words mean, officially, ordered, approved, Anderson and the cases that followed it looked at what that means, and they adopted a judicial interpretation that includes inducement. [00:11:14] Speaker 05: So inducement's a good example of where- Council, can I ask you a question? [00:11:18] Speaker 00: I want to ask you, are you familiar with 5542 G4B? [00:11:23] Speaker 00: And the reason why I ask is because that's a subsection within the same statute that we're looking at here. [00:11:30] Speaker 00: And Congress said that there, over time, it wasn't over time, I think it was compensatory time, must be approved in writing. [00:11:40] Speaker 00: Must be approved in writing. [00:11:42] Speaker 00: So how does that? [00:11:44] Speaker 00: caught with regards to your argument here that ordered or approved might not require a writing? [00:11:53] Speaker 05: Well, it shows you that when Congress intends to require a writing, it knows how to do that. [00:11:57] Speaker 05: And it uses words that say that. [00:11:59] Speaker 05: And when Congress intends to use words that encompass both oral and written directives, it can do that as well. [00:12:08] Speaker 07: But if Congress was silent, as I think you've acknowledged on the specific point we care about today, why shouldn't that silence open the door to the agency making the regulation as to how one officially orders and approves? [00:12:23] Speaker 05: I would reframe that. [00:12:24] Speaker 05: I don't think that I agree Congress is silent exactly. [00:12:29] Speaker 05: What I do argue is that Congress uses words. [00:12:34] Speaker 05: The courts interpret those words. [00:12:36] Speaker 05: They interpreted that to include inducement. [00:12:41] Speaker 05: It might be that OPM has the power to give us details on examples of what might constitute inducement, what sort of workplace behaviors do and do not constitute inducement, give employees a guide of some kind. [00:12:53] Speaker 05: But if they contradict the judicial interpretation, which they do here by completely proscribing inducement theory as a viable theory of recovery, they have gone against language that Congress has used. [00:13:05] Speaker 05: Not explicitly, but Congress has spoken by using the words officially ordered and approved. [00:13:10] Speaker 05: And it's the court's job to say what that means. [00:13:12] Speaker 05: And they have. [00:13:13] Speaker 05: And they said it includes inducements. [00:13:15] Speaker 00: Now, if one question, you said tuck that gun to inducement. [00:13:19] Speaker 00: But you agree that what the statute requires is officially ordered or approved, right? [00:13:24] Speaker 00: I'm sorry. [00:13:25] Speaker 00: What the statute requires is officially ordered or approved. [00:13:30] Speaker 00: Right? [00:13:30] Speaker 00: Yes. [00:13:31] Speaker 00: And so that's what's required. [00:13:32] Speaker 00: There is nothing in the statute that says inducement, right? [00:13:35] Speaker 05: I mean, there's nothing in the statute that says the word inducement. [00:13:39] Speaker 00: That's right. [00:13:39] Speaker 00: So there'd have to be a showing under the facts that something was officially ordered or approved, whether it's oral or in writing, right? [00:13:46] Speaker 05: Yes, and earlier the comment about, oh, well, we're not policymakers, if we win today, if we were to win this appeal, it doesn't mean we win this case. [00:13:56] Speaker 05: It means that theory is a viable legal theory of recovery. [00:13:59] Speaker 05: Whether it succeeds in any particular case will turn on the facts of that case, will turn on whether there was, in fact, inducement. [00:14:04] Speaker 05: What does that mean? [00:14:05] Speaker 08: The problem with your argument is inducement is too broad of a category. [00:14:10] Speaker 08: already agreed that officially has to be somebody with authority. [00:14:16] Speaker 08: But inducement could include a basic supervisor that tells you if you don't come in today, you're going to get fired. [00:14:22] Speaker 08: That's inducement. [00:14:23] Speaker 08: But that can't be grounds for overtime pay, right? [00:14:27] Speaker 08: That's not officially if that person has no authority to approve it. [00:14:32] Speaker 08: So why is OPM allowed to interpret, and not even interpret, [00:14:38] Speaker 08: established procedures for who is the person entitled to make the official determination, but not make the procedures for what's ordered and approved. [00:14:49] Speaker 08: I don't understand the logic in your argument. [00:14:51] Speaker 08: Either it applies to all of officially ordered and approved, and the courts get to decide what's officially ordered and approved, not OPM, or it applies to none of it. [00:15:02] Speaker 05: Well, I don't agree that [00:15:04] Speaker 08: the the statement in the premise that uh... lower-level supervisor who didn't call you know somebody who's also you're arguing that if a low-level supervisor who has no authority under the agency rules and regulations still order somebody to come in that that person's entitled over time i'm sorry could you repeat that so okay let me be clear you have a low-level supervisor this person under the agency rules and regulations has no authority whatsoever to [00:15:31] Speaker 08: approve or order overtime. [00:15:33] Speaker 08: That supervisor nonetheless tells his reverse abordinate, if you don't come in, I'm going to fire you. [00:15:40] Speaker 08: If you don't come in and do overtime, I'm going to fire you. [00:15:43] Speaker 08: Is that person entitled to overtime compensation? [00:15:50] Speaker 05: The statutory requirement is officially ordered. [00:15:55] Speaker 05: As to who is official enough to qualify for that, Congress didn't speak to that. [00:16:01] Speaker 08: So you think the courts should get to decide who's a sufficient official. [00:16:04] Speaker 08: And in that scenario, you would argue, because this is this person's supervisor, they may have performance evaluation control over them, disciplinary control over them, but not overtime control over them. [00:16:15] Speaker 08: That's inducement, and that's sufficient. [00:16:17] Speaker 05: I think that the court's role is to interpret the language and create a system. [00:16:20] Speaker 08: So you can answer the hypothetical. [00:16:22] Speaker 08: In that hypothetical, would you argue that person's entitled to overtime and overtime? [00:16:27] Speaker 05: I don't know. [00:16:29] Speaker 05: I don't think that hypothetical is sufficiently fleshed out to allow me to answer that. [00:16:32] Speaker 06: It sounds like it would be an invalid kind of approval or order. [00:16:38] Speaker 06: If Ms. [00:16:39] Speaker 06: Lesko's coworker ordered her or approved her for overtime, that would clearly be an invalid approval or order. [00:16:47] Speaker 06: Right. [00:16:48] Speaker 06: The court's role is to- So what about- I'm trying to understand the work that the word officially does. [00:16:53] Speaker 06: Given that the statute says officially ordered or approved, [00:16:57] Speaker 06: doesn't that suggest there are unofficial forms of order and approval? [00:17:02] Speaker 06: Yes. [00:17:04] Speaker 06: So therefore why isn't officially [00:17:09] Speaker 06: have the meaning of something formal, in some formal sense, the order of approval must be done. [00:17:19] Speaker 06: It can't be an informal approval or order. [00:17:24] Speaker 05: It does have that meaning. [00:17:25] Speaker 05: And the point I'm trying to make in answering several series of questions here is that. [00:17:29] Speaker 06: But the point I'm trying to make is, OK, so we agree that there has to be an order of approval in some formal sense by someone with authority. [00:17:39] Speaker 06: But what if the statutory interpretation just doesn't go any further? [00:17:45] Speaker 06: That's about as good as we can get out of that. [00:17:49] Speaker 06: And now we look over at 5548, and we see this general rulemaking authority to install all kinds of procedural rules, administrative rules to conduct the operations of this compensation scheme. [00:18:05] Speaker 06: And requiring things to be done in writing is [00:18:09] Speaker 06: a classic form of that kind of administrative rule. [00:18:17] Speaker 05: I'm not sure I understand the question beyond to say. [00:18:21] Speaker 06: I guess the question is, you want to do this statutory interpretation exercise of officially ordered and approved. [00:18:30] Speaker 06: I'm just raising the question of, [00:18:33] Speaker 06: What if the interpretation really doesn't get down to the nitty-gritty of the specific mechanics of writing or oral or something else? [00:18:44] Speaker 06: But it does have to be something formal. [00:18:46] Speaker 06: It has to be formalized because it has to be officially done. [00:18:50] Speaker 06: It has to be done by someone with authority. [00:18:53] Speaker 06: And if we start walking down that road, it starts to look less and less like [00:19:01] Speaker 06: something unofficially ordered is something that fits within the statute, maybe even something like strong-arming an employee. [00:19:13] Speaker 06: As wrong as that sounds, maybe that doesn't fit within the statute. [00:19:19] Speaker 05: I think it's for the judicial interpretation of the statute to set forth a standard. [00:19:24] Speaker 05: And whether, in a particular instance, a regulation is in compliance and consistent with that standard or not is a question in every case. [00:19:33] Speaker 06: What do you think would be an unofficial form of approval or order? [00:19:37] Speaker 05: If well, I think you gave an example just now of the co-worker or a relatively lower level supervisor I think from one agency to the next they may have different structures regarding who has authority OPM may have the ability to say who constitutes an official and who doesn't that does not go against the judicial interpretation of inducement when you you earlier conceded that [00:20:05] Speaker 07: that OPM has authority to make rules about who can officially approve, correct? [00:20:14] Speaker 07: Yes. [00:20:15] Speaker 07: But I'm trying to understand, is that an unbounded concession? [00:20:19] Speaker 07: Does that mean OPM, in your view, can define anyone as being able to officially approve? [00:20:25] Speaker 07: Or is it theoretically possible they could come up with a rule [00:20:29] Speaker 07: that contradicted the statute in defining who can officially approve? [00:20:35] Speaker 05: Well, general making authority that's delegated by statute isn't unbounded. [00:20:39] Speaker 05: There are bounds on it, bounds of reasonableness, bounds of capriciousness, and so forth. [00:20:43] Speaker 05: And if they were to define who can do that in a manner, define who's an official in a manner that is not sensical, in a manner that eliminates people's [00:20:56] Speaker 05: even high-level supervisors, or eliminates manual directives that are not written directives for particular work hours, but they are policy directives, like in this case with respect to medical care and so forth, where people have to comply with standards and those things are set forth in official documents that are approved by higher-ups, I think that's a different situation. [00:21:25] Speaker 05: I would define it and we put this in the briefs that you need to have somebody with authority and who has the authority is not a question that's answered by the statute but somebody with authority who gives you a directive in such that the work is non-voluntary required and or expected to be performed or thereafter approved. [00:21:50] Speaker 10: You argue that we should not follow our precedent in Doe because that case was based on Chevron. [00:22:00] Speaker 10: In view of Loper, and what's a precise impact of Loper on this case? [00:22:09] Speaker 10: Why should we not stick to our precedent? [00:22:12] Speaker 05: Well, this is the second main point that I was going to raise with respect to, you know, it's a big ask to deviate from a precedent to toss out a precedent. [00:22:21] Speaker 05: And in Loper, the court said that mere reliance on Chevron is not sufficient reason to overturn a case. [00:22:27] Speaker 05: But it didn't expand upon, well, what might be. [00:22:30] Speaker 10: Well, why is it this one of those cases? [00:22:33] Speaker 05: Well, here we have a combination of factors. [00:22:36] Speaker 05: Not only do we have intervening Supreme Court authority from Loper, but previously, before Loper came out, we argued in our briefs that Anderson, Doe, and Mercier were not in accord and required reconciliation. [00:22:47] Speaker 05: It's not typical. [00:22:49] Speaker 05: This is an atypical case to have multiple precedents on a statutory and regulatory conflict that reach different results for different reasons and leave the state of the law somewhat murky. [00:23:00] Speaker 05: So, on top of that... So, if we find in your favor, what do we have to do? [00:23:07] Speaker 10: We have to express the overall or precedence? [00:23:16] Speaker 05: Chevron answered a different question than what was being, or sorry, excuse me, Doe answered a different question than what we're asked here. [00:23:22] Speaker 05: It asked whether the regulation was in contravention to the direct, the express words of the statute. [00:23:34] Speaker 05: But here the question under Loper is, what is the best reading of the statute? [00:23:37] Speaker 05: And is the regulation contrary to that? [00:23:40] Speaker 05: So I mean, yes, in a sense, [00:23:42] Speaker 05: Yes, overrule, distinguish, clarify. [00:23:45] Speaker 05: I would leave the semantics of it to the court. [00:23:48] Speaker 05: But there's a new framework in town. [00:23:51] Speaker 05: And the Loper framework says you have to look at the statute and what it says. [00:23:54] Speaker 05: And we have cases already that do that. [00:23:57] Speaker 05: and provide for inducement theory. [00:24:01] Speaker 05: The government has not made any real arguments as to why we should not rely on those cases other than to say those words are broad enough to encompass both oral and written, but it doesn't explain why it should exclude oral orders. [00:24:17] Speaker 05: But we have this combination of, oh, and on top of that, we have the Mercier opinion, which in addition to, well, it undercut Doe's rationale in a lot of ways. [00:24:28] Speaker 05: So we have this precedent, yes, but we have another case that's also precedent that says Doe was wrong when it said Anderson was overruled, that said Doe was wrong when it said Hanson and Richmond had anything to do with the issues in this case. [00:24:44] Speaker 05: So, you know, this is not just a simple scenario where there was a prior precedent that directly addressed the issue and were being asked to overturn it. [00:24:53] Speaker 06: No. [00:24:53] Speaker 05: There were multiple precedents at play, and some of the reasoning in one of them was directly contradicted by one of the other ones. [00:24:59] Speaker 05: And we have now Loeb or Breit telling us we've got to look at what is the best meaning of the statute, whereas in Doe, they didn't really answer that question, which Mercier made clear. [00:25:07] Speaker 05: Doe did not turn on the best reading of the statute. [00:25:10] Speaker 05: They didn't have occasion to even answer that question. [00:25:14] Speaker 05: They just said, because the statute was ambiguous, they would defer to the regulation under Chevron. [00:25:19] Speaker 05: But we can no longer skip that initial question of, what is the best reading of the statute? [00:25:25] Speaker 01: Council, do you want to save some time for rebuttal? [00:25:28] Speaker 05: I thought that this started at 30. [00:25:30] Speaker 05: OK. [00:25:31] Speaker 05: Yes, I will save some time for rebuttal. [00:25:32] Speaker ?: Thank you. [00:25:39] Speaker 01: Mr. Carhartt. [00:26:01] Speaker 04: May it please the court. [00:26:02] Speaker 04: 21 years ago, in Doe, this court upheld the OPM regulation at issue in this appeal. [00:26:08] Speaker 04: The Anban Court should reaffirm the regulation's validity for three reasons. [00:26:12] Speaker 04: First, the regulation falls within the boundaries of authority delegated by Congress. [00:26:17] Speaker 04: This delegation is most clearly expressed in Section 5548, which allows OPM to enact rules necessary for the administration of the premium pay statute. [00:26:25] Speaker 01: Is that the source of law that gives OPM [00:26:31] Speaker 01: not just the ability to regulate, perhaps, writing and requirement, but also to designate who constitutes an official under the statute who's authorized? [00:26:45] Speaker 01: I'm wondering where the source of authority is for OPM to regulate. [00:26:49] Speaker 01: It seems that Appellant has admitted that OPM has the ability, for example, to regulate who is official enough. [00:26:57] Speaker 01: to approve over time, is 5548 the source of power for OPM? [00:27:03] Speaker 04: That is the most obvious source of power, yes. [00:27:06] Speaker 04: Because 5548 allows OPM to make rules necessary for the administration of the premium pay statutes. [00:27:12] Speaker 04: And one of those administrative questions, just like the writing element, is who is an official? [00:27:19] Speaker 04: So yes, that is the source of authority. [00:27:22] Speaker 03: Related question. [00:27:30] Speaker 03: to perform overtime work. [00:27:33] Speaker 04: So there's also 5 U.S.C. [00:27:35] Speaker 04: 301, which hasn't come up in the briefing, I don't think. [00:27:39] Speaker 04: But it does give agency heads general authority to manage the conduct of employment. [00:27:44] Speaker 04: So that's a separate source of authority for agency heads. [00:27:49] Speaker 04: But what we're relying on here is 55-48. [00:27:52] Speaker 04: And the question for this court about how do we appropriate it. [00:27:56] Speaker 03: This is, I guess, a version of the question I asked your counterpart. [00:28:01] Speaker 03: Suppose the head of agency has authority to direct employees to perform overtime work under 301. [00:28:09] Speaker 03: And then the head of agency also has authority to subdelegate that authority. [00:28:17] Speaker 03: At that point, we're not in 5548 land at all. [00:28:23] Speaker 03: And one way to read 5542 is that it looks elsewhere, outside [00:28:30] Speaker 03: the whole 5542 and related regime for the head of agency to subdelegate authority with respect to overtime. [00:28:40] Speaker 03: And if that's true, where does OPM's authority come from to tell the agency head what conditions there are on that delegation? [00:28:52] Speaker 04: So 5548 would be the answer. [00:28:56] Speaker 04: So at the same time, Congress enacted what's now 5542. [00:29:00] Speaker 04: I'll just use that as a shorthand. [00:29:02] Speaker 04: It enacted 5548. [00:29:04] Speaker 04: So it gave OPM this authority to make administrative rules, essentially rules necessary for the administration of the premium pay statute. [00:29:12] Speaker 04: The best reading of the statutory scheme as a whole is to read 5542 and 5548 together and to see the officially ordered or approved language in 5542 to be connected to the 5548 language in the sense that Congress is not saying what the prescribed process is. [00:29:32] Speaker 04: in 5542. [00:29:33] Speaker 04: It's not saying how, over time, it's officially ordered or approved. [00:29:36] Speaker 04: But it's recognizing that there are administrative questions to be resolved about how this is going to play out. [00:29:43] Speaker 03: One related question, and then I'll let you get back. [00:29:46] Speaker 03: So in the initial regulation on July 4, 1945, there was a sentence before the operative must be in writing sentences that [00:29:57] Speaker 03: Heads of departments or independent establishments or agencies may delegate to any officer or employee authority to order or approve over time in excess of the administrative work week. [00:30:10] Speaker 03: Do you know what became of that sentence? [00:30:12] Speaker 03: It doesn't seem to be. [00:30:13] Speaker 03: At some point, it disappeared, maybe in 1966. [00:30:18] Speaker 03: What happened to that sentence? [00:30:20] Speaker 03: I'm sorry. [00:30:20] Speaker 03: I don't have the answer. [00:30:22] Speaker 00: Counsel, so I just want to follow up on that question from Judge Taranto. [00:30:26] Speaker 00: Because the current version of the regulation that is at issue here simply says that overtime work and excess may be ordered or approved only in writing by an officer or employee to whom this authority has been specifically delegated. [00:30:43] Speaker 00: Is that the only language in the regulations that addresses who has the authority? [00:30:52] Speaker 04: Is that the only language? [00:30:55] Speaker 04: Off the top of my head, I can't think of other language that would address that. [00:31:03] Speaker 04: So that's always been what we've relied on. [00:31:06] Speaker 00: Do you view that part of the regulation as interpreting the word officially? [00:31:11] Speaker 04: I would view both the identity of the approver, the authorized official, and the process by which it is approved as being encompassed by the officially language, in the sense that officially sets forth or presupposes that there's some process, presupposes that there's some mechanism, but doesn't explain what that is. [00:31:37] Speaker 00: And the regulation itself, in a couple of sentences above, says, [00:31:41] Speaker 00: repeats what the statute says and says that overtime must be officially ordered or approved. [00:31:47] Speaker 00: And then in the operative sentence about the writing, it then says, overtime can be ordered or approved only in writing, suggesting that the writing requirement is coming from an interpretation of officially. [00:32:02] Speaker 04: Do you agree with that? [00:32:04] Speaker 04: So the writing requirement is an outgrowth [00:32:08] Speaker 04: rulemaking authority in 5548. [00:32:10] Speaker 04: And I agree that the word officially suggests a process that has to be followed, but it doesn't explain what that process is. [00:32:22] Speaker 04: So in that sense, Judge, I think I agree with what you're suggesting. [00:32:26] Speaker 04: The word officially, it acknowledges that there's going to be some limitation on orders or approvals. [00:32:35] Speaker 04: They have to be official, but it doesn't explain how that's satisfied. [00:32:38] Speaker 00: Do you agree that there's cases and just an understanding that when we're talking about government and workers and talking about official, a lot of times that means somebody who's been authorized, has the authority to do something within the government. [00:32:52] Speaker 00: It is not just your coworker, but instead it's somebody who has the authority to order over time. [00:32:59] Speaker 04: I agree that that's part of the concept of officially, the identity of the individual. [00:33:04] Speaker 04: But I would also say that there are elaborate processes within the government, including especially within the paid context, about what processes need to be followed so that that word officially can encompass more than just the identity of the approver. [00:33:19] Speaker 04: I'd also note, and this didn't come up in the opening argument, [00:33:22] Speaker 04: OPM's regulation, originally the Civil Services Regulation, was a contemporaneous construction of the statute. [00:33:28] Speaker 04: So when we're looking at what these terms might mean, the fact that OPM had this definition dating back to 1945, that's evidence in favor of OPM's. [00:33:38] Speaker 00: What about Anderson? [00:33:39] Speaker 00: I mean, you've got Anderson decided in 1956, Embank Court, our predecessor, Embank, sat there and looked at that language and said, you know, you can't require a writing [00:33:50] Speaker 00: that an oral order would be sufficient. [00:33:54] Speaker 00: And then Congress did not choose to change the language of the statute. [00:34:01] Speaker 00: Notwithstanding the fact that it later enacted other statutes within the same statute, it had subsections that expressly required a writing. [00:34:10] Speaker 00: How do you respond to that? [00:34:11] Speaker 04: A couple of points. [00:34:12] Speaker 04: First, Congress also didn't change the statute after the regulation was enacted, too. [00:34:17] Speaker 04: So you had a 10, 11-year period where the regulation was in effect. [00:34:21] Speaker 04: Congress revisited the overtime pay scheme and didn't change the statute then. [00:34:25] Speaker 04: More broadly on Anderson, so there are a couple angles on that. [00:34:29] Speaker 04: One is the star decisis angle. [00:34:32] Speaker 04: So that comes up in the context of should this court be following the Doe rule or the Anderson rule? [00:34:39] Speaker 04: Our submission is the Doe rule is the rule to follow for a few reasons. [00:34:44] Speaker 04: The current reliance interests have been formed by Doe rather than Anderson. [00:34:48] Speaker 04: Doe has been in law for 20 years. [00:34:50] Speaker 04: The second is that Doe rule is clearer. [00:34:53] Speaker 00: But you agree that just the plain, I think that you can see that the language at issue here is broad enough to cover both oral orders and written orders, right? [00:35:11] Speaker 00: It's your view, because you haven't made that argument. [00:35:14] Speaker 00: Instead, you're making a delegation argument, right? [00:35:17] Speaker 04: In some contexts, it can encompass both. [00:35:21] Speaker 04: There is a limitation in the sense that the phrase presupposes formalities were followed. [00:35:28] Speaker 04: So that's the bottom line interpretation. [00:35:30] Speaker 04: Formalities have to be followed. [00:35:32] Speaker 04: Whether it's verbal or written is going to depend upon the content of those formalities. [00:35:37] Speaker 04: But the statute doesn't say what those formalities are. [00:35:39] Speaker 00: And it doesn't say in writing. [00:35:41] Speaker 04: The statute does not say in writing. [00:35:43] Speaker 04: But it presupposes that there are going to be some formal processes. [00:35:46] Speaker 04: And then it gives OPM the administrative power, which would reasonably extend to creating those sort of administrative rules. [00:35:54] Speaker 00: Do you know of any other case post-Loper that have facts like this, where there is a general delegation of authority to administer, and then there are, say, 15 statutes, many of which have kind of [00:36:10] Speaker 00: variable words of the type that you're talking about. [00:36:13] Speaker 00: How do we know that in that circumstance, we are supposed to defer to the agency's interpretation? [00:36:21] Speaker 04: So there are cases post-LOPA that have considered delegations. [00:36:29] Speaker 00: I agree with that. [00:36:30] Speaker 00: I've looked at many of them. [00:36:32] Speaker 00: They look to me to be more specific and clear delegations than in this case, but I'm wondering [00:36:37] Speaker 00: Do you know of any that have a more general delegation, as is the case here? [00:36:44] Speaker 04: So for example, the Zimmer Radio VFCC was an 8th Circuit case from last month. [00:36:49] Speaker 04: So that's to act in the public interest. [00:36:51] Speaker 04: So that's a pretty general delegation. [00:36:56] Speaker 04: United States v. Coquinda is a Fourth Circuit case about issuing guidelines and regulations interpreting SORNA. [00:37:02] Speaker 04: So there are cases that are considered broad language. [00:37:06] Speaker 00: Can I be a little more specific? [00:37:08] Speaker 00: Do you know of any cases where there's a delegation to an agency to [00:37:15] Speaker 00: interpret something, or I guess here it's not really interpret, but to provide rulemaking. [00:37:22] Speaker 00: But it's not clear saying that rulemaking isn't tied to specific statute or a specific language within a statute. [00:37:31] Speaker 04: So this 5548 delegation was originally tied to FIFA. [00:37:41] Speaker 04: So at the same time as 5542 is enacted, 5548 is enacted. [00:37:45] Speaker 04: So this is not like those cases where sometimes there are general delegations that just [00:37:50] Speaker 04: let agencies do, make rules generally. [00:37:53] Speaker 04: This is not that generic. [00:37:55] Speaker 00: Are you telling me that 5542 and 5548 were enacted at the same time and nothing else was enacted at that time? [00:38:02] Speaker 04: No. [00:38:04] Speaker 04: But they were enacted at the same time in the sense that at the same time as Congress is enacting this official order to approve language, it's also recognizing that there are gaps in administrative issues that OPM is going to have to flesh out. [00:38:19] Speaker 04: So that's the first point. [00:38:21] Speaker 04: So in that sense, just quickly, one of the examples cited in Loper is Wayman, which is an 1825 case. [00:38:32] Speaker 04: In that case, too, one of the delegations it considered was Section 17, the Drifiori Act, which had this sort of broad language about using the word necessary. [00:38:44] Speaker 04: So it's not uncommon to have delegations using [00:38:48] Speaker 04: language like this, and Loper was clear that delegations generally have to be respected. [00:38:54] Speaker 00: It wasn't Raymond more specific. [00:38:56] Speaker 00: It said that, you know, for bits, executions, and other processes, you know, it was tying that broad language you refer to to specific things. [00:39:06] Speaker 04: Well, that wasn't the only language, though. [00:39:10] Speaker 04: There also was more general language. [00:39:12] Speaker 04: So there's nothing foreclosing delegations being applied in this circumstance, especially when this all arose out of the same statute. [00:39:22] Speaker 04: And the context here, another point that's, I think, important that hasn't come up yet, 5548 also says these rules have to be issued with the approval of the president. [00:39:32] Speaker 04: So that is unusual language. [00:39:37] Speaker 04: And it's best understood as reflecting a view that this is a matter for the executive branch. [00:39:42] Speaker 04: And it's important enough that Congress wants the president personally, Harry Truman, which he did, to look at these regulations and sign off on them. [00:39:50] Speaker 04: So that's a significant feature of this regulation that suggests this is not just some ordinary delegation. [00:39:57] Speaker 03: One way I think perhaps the other side is looking at this might be described as follows. [00:40:06] Speaker 03: The question of the meaning of 5542 under Loperbrite is what is the best reading of that? [00:40:14] Speaker 03: Now that best reading might be that certain kinds of filling up the details are left to an agency. [00:40:24] Speaker 03: Why isn't the best reading that with the term officially and the basic common sense of the [00:40:35] Speaker 03: person doing the ordering or the approving actually has to have authority to do it. [00:40:40] Speaker 03: That's certainly a requirement under the best reading. [00:40:43] Speaker 03: But why is the best reading not, at that point, that same conclusion does not follow for a writing requirement? [00:40:56] Speaker 03: Because after all, the effect here is that an employee has done work for which he's otherwise not going to get [00:41:05] Speaker 03: paid, but by assumption here, orally, is directed to do it. [00:41:11] Speaker 03: Why is that not the best reading? [00:41:13] Speaker 03: And therefore, as to that, there's no delegated authority to fill up a detail. [00:41:19] Speaker 04: So presupposing that the court's looking at the best reading of 5542, and that's the question that you're asking about, Judge Toronto. [00:41:26] Speaker 04: So first, our first point is looking at the language. [00:41:31] Speaker 04: There's an element of formality embedded in this language that encompasses not just the identity of the approver, but also the process by which it's approved. [00:41:39] Speaker 04: Second, it's a contemporaneous construction. [00:41:41] Speaker 04: So OPM, again, to the extent that there's some doubt, that's evidence in favor of OPM's reading. [00:41:51] Speaker 04: In the policy issue that you're alluding to, [00:41:56] Speaker 03: But don't diminish it by calling it policy. [00:42:00] Speaker 03: That's the obvious point of saying individuals who work overtime should get paid. [00:42:07] Speaker 04: But from a policy perspective, there is a strong argument for clear rules as well. [00:42:14] Speaker 04: So there are countervailing concerns or countervailing policy issues that would support OPM's reading, which [00:42:22] Speaker 04: the Supreme Court recognized in seven county infrastructure, when it's a question about the American economy, predictable rules are generally beneficial. [00:42:30] Speaker 04: Here, when an employee knows in advance that they have to get a writing requirement, or they have to get, over time, ordered or approved in writing, [00:42:39] Speaker 04: A, if they have it, they're protected. [00:42:42] Speaker 04: They're able to point to something that says, this was approved, and use that as ability to get paid. [00:42:47] Speaker 04: Two, if they don't have it, then they know that under the regulation that there is not yet an official order of approval. [00:42:54] Speaker 04: So in that sense, that's why I want to push back on that, because the assumption that this is necessarily worse for employees, we don't agree with that. [00:43:07] Speaker 03: And I would spot you, as they say these days, the proposition that there is a perfectly reasonable case for a writing requirement. [00:43:16] Speaker 03: The question is, in the absence of putting aside a regulatory authority, and you're just trying to figure out what the best reading of the statute is, why wouldn't that be? [00:43:28] Speaker 03: That the who is definitely required, [00:43:38] Speaker 03: an individual who has actually been ordered, but orally, to work, and work doesn't get paid for that work. [00:43:46] Speaker 04: So first, the best reading of the statutory scheme as a whole is that Congress created this phrase in 5542 that presupposes a process is filed without defining what that process is, and then gives OPM the authority to make rules about what the process is. [00:44:03] Speaker 04: So that's the bottom line response to your Honor's question. [00:44:07] Speaker 01: Counsel, isn't it possible that there could be a lot of different regulations, the likes of which we're not discussing now, that might cut back on potentially otherwise [00:44:15] Speaker 01: legitimate claims for entitled overtime. [00:44:19] Speaker 01: For example, a timing requirement. [00:44:21] Speaker 01: Nothing in any of the statutes talks about when an approval or how close in proximity to hours work an approval must come, right? [00:44:29] Speaker 01: So suppose that there was a regulation that OPM adopted that said, if you want to get paid for overtime, you must submit your request or your extra hours worked within seven days. [00:44:40] Speaker 01: And if you don't do it within seven days, within a certain time period, then you can't claim it. [00:44:46] Speaker 01: Wouldn't that be permissible under your view? [00:44:49] Speaker 04: An employee could try to challenge that. [00:44:51] Speaker 04: I think what they would have to show is that it falls outside of the scope of the delegated authority, that a time requirement like that effectively isn't an administrative requirement that's consistent with the scope of the statute. [00:45:07] Speaker 04: In principle, could you have a regulation like that? [00:45:10] Speaker 04: Yes. [00:45:11] Speaker 04: But an employee could challenge it and make- I'm not asking you what could happen. [00:45:15] Speaker 01: Would that be a valid regulation? [00:45:17] Speaker 01: Would that be necessary for administration? [00:45:24] Speaker 04: I mean, that's a question for OPM, really. [00:45:27] Speaker 04: But would it be defensible to say? [00:45:29] Speaker 01: What kind of regulations can OPM adopt? [00:45:33] Speaker 01: Give me some examples of what would be necessary for administration and not conflict with statutory language. [00:45:40] Speaker 04: Well, this one, the writing requirement. [00:45:42] Speaker 04: The identity of the approver is also in the regulation, certainly doesn't contradict any requirements. [00:45:50] Speaker 04: So those would be the two sort of prototypical examples. [00:45:54] Speaker 04: Other than that, there's a lot of details that are filled in by agency policies. [00:45:59] Speaker 08: Well, they could require documentation if the person actually worked those out, right? [00:46:03] Speaker 08: They could require documentation that the person actually worked those hours. [00:46:07] Speaker 04: They could require documentation, yes. [00:46:09] Speaker 04: It's all part of the process of how the overtime gets approved. [00:46:13] Speaker 04: That's right. [00:46:14] Speaker 04: And there are other contexts in which that sort of documentation is required. [00:46:17] Speaker 04: And unless the statute forecloses that, that would fall within the administrative rules that can be created by OPM to carry out the statute. [00:46:27] Speaker 09: Now, we talk a little bit about- There's a lot in the regulation also about how to calculate the overtime, the detailed rules of that. [00:46:33] Speaker 09: That's true. [00:46:34] Speaker 09: And certainly Congress contemplated that those kind of determinations would be delegated to OPM, right? [00:46:42] Speaker 04: Absolutely. [00:46:42] Speaker 04: Yes. [00:46:44] Speaker 04: Yes. [00:46:44] Speaker 04: And part of Congress's concern, as is evident in the legislative history, is deficiency appropriations [00:46:50] Speaker 04: There's a multifaceted approach that Congress is taking this issue in the sense that they have to think about a lot of different things, not just... So is it your argument that an agency can adopt a regulation that limits a substantive statutory right? [00:47:09] Speaker 04: So first, that is essentially what Mercier said. [00:47:16] Speaker 04: So that's Mercier's view. [00:47:18] Speaker 10: I don't think that in this context... That's what Doe said too, right? [00:47:21] Speaker 04: Yes, Doe is agreeing with... Yes, Mercier is agreeing with Doe in that sense. [00:47:26] Speaker 10: But the critical point from our perspective... Would you agree that those portions of those opinions based the analysis on the Chevron deference standard, [00:47:36] Speaker 04: I actually think there are earlier cases that we cite in our brief that apply this principle in other contexts, but the most important point from our perspective is that that statutory right presupposed that the appropriate formalities be followed. [00:47:50] Speaker 04: So the regulation doesn't limit the statutory right, it just explains the process that must be followed. [00:47:56] Speaker 10: something presupposes something else. [00:47:59] Speaker 10: I mean we have a statute and the statute says X and then now we have the regulation that says X minus. [00:48:09] Speaker 04: So I would disagree that it's X minus in the sense that the phrase officially ordered or approved combined with the delegation 5548 doesn't answer the question of how the official order of approval must happen and gives it to OPM to make rules. [00:48:25] Speaker 10: OK, but to be clear, that's your assumption. [00:48:28] Speaker 10: That's not what the statute says. [00:48:30] Speaker 04: That's what we're saying the best reading of the statute is. [00:48:34] Speaker 04: In that, if you look at the words officially ordered and approved, they all have this element of formality embedded within that. [00:48:42] Speaker 10: But the staff... So is the writing requirement a restriction on the statute? [00:48:46] Speaker 04: Is it a restriction? [00:48:47] Speaker 04: It's an explanation of how the official order or approval would happen. [00:48:50] Speaker 04: It's filling in the details that aren't filled in by the statute. [00:48:53] Speaker 10: We should not look at it as a formal restriction, but just as a logical expression. [00:49:00] Speaker 04: You should look at it as there's a power to make rules about administration given to OPN. [00:49:09] Speaker 04: And there's a statute that says officially ordered or approved without explaining what an official order or approval is. [00:49:15] Speaker 04: And the administrative power extends to making those administrative rules that are necessary to explain an issue that's not addressed in the statute. [00:49:25] Speaker 01: Would your answer be any different to this case if the word officially were not in the statute? [00:49:30] Speaker 04: We would be making the same argument because the words ordered and approved have the same formal element within them, but officially really reinforces [00:49:41] Speaker 01: Why do you need the formal element? [00:49:43] Speaker 01: I don't understand why you've limited yourself so much. [00:49:47] Speaker 01: That 5548 gives OPM the authority to adopt regulations for administration. [00:49:53] Speaker 01: The form that an order must take is procedural in nature. [00:49:57] Speaker 01: Why do you need anything that imbues formality? [00:50:01] Speaker 01: Why isn't 5548 sufficient on its face to give OPM authority to determine the format? [00:50:08] Speaker 04: It does. [00:50:09] Speaker 04: It absolutely does. [00:50:09] Speaker 01: The point I'm emphasizing is- You're saying officially helps me, but I don't need it. [00:50:14] Speaker 04: Yeah. [00:50:14] Speaker 04: Yes. [00:50:14] Speaker 04: Absolutely. [00:50:15] Speaker 04: And I'm saying 5542 if, you know, OKIM can't contradict the statute. [00:50:21] Speaker 04: But the point we're making is OKIM hasn't contradicted the statute. [00:50:24] Speaker 04: That's, you know, I'm trying to respond to questions about 5542. [00:50:27] Speaker 04: But absolutely, I agree with you. [00:50:28] Speaker 07: Why hasn't it contradicted the statute? [00:50:30] Speaker 07: Help me on that. [00:50:31] Speaker 07: I thought you conceded that officially ordered or approved includes, on its face, best reading, [00:50:37] Speaker 07: written as well as oral orders or approval, and yet when OPM gets around to making its rule, it says, no, no, no, we're going to cut out the oral and limit it to writing. [00:50:49] Speaker 07: Why isn't, in a best interpretation world, why is that not a contradiction? [00:50:54] Speaker 04: To be clear, I have not considered that's the best reading of the statute. [00:50:57] Speaker 07: Well, I think you did concede that on its face, I thought, officially ordered or approved includes oral as well as written. [00:51:07] Speaker 04: Not necessarily. [00:51:09] Speaker 04: What I've said is... [00:51:10] Speaker 04: Well, first, there are meanings of order that actually do explicitly require writing, like a change order. [00:51:15] Speaker 07: But are there some that don't require a writing? [00:51:18] Speaker 04: Yes. [00:51:19] Speaker 04: Yes, of course. [00:51:20] Speaker 04: So that's definitely true. [00:51:22] Speaker 04: There are different senses of these words. [00:51:24] Speaker 04: But ultimately, at bottom, they don't answer the question of the procedure that must be followed. [00:51:30] Speaker 04: So an invalid order is not really an order. [00:51:33] Speaker 06: It's certainly not an official order. [00:51:34] Speaker 06: But could you identify what forms of or what context of the usage of order does include? [00:51:40] Speaker 06: include oral orders? [00:51:42] Speaker 06: You just said in some context it does. [00:51:45] Speaker 06: What would those kinds of contexts be, and why are those contexts different from this one? [00:51:51] Speaker 04: So I was thinking of the analysis in Doe where it goes through different dictionary definitions, and we quote some of those as well, that there are some definitions that allow for oral approvals. [00:52:04] Speaker 04: The reason the context here is important is because you're talking about money being taken from the treasury, [00:52:10] Speaker 00: And the closest analogies are something like a change order, where... [00:52:21] Speaker 04: We contend that it means that there has to be an order or approval with the appropriate formalities. [00:52:31] Speaker 04: And those appropriate formalities are not defined in the statute. [00:52:35] Speaker 04: So it leaves open the question of what the appropriate formalities are. [00:52:38] Speaker 04: And 5548 lets OPM, as Chief Judge Moore suggested, make administrative rules. [00:52:45] Speaker 00: So that's when you- [00:52:48] Speaker 04: both from the word officially but also from the word order too because you know as I was just saying sometimes orders do require sometimes orders must be in writing and it is always it's ordered or approved [00:53:06] Speaker 04: Does it always have to be in writing? [00:53:08] Speaker 04: No. [00:53:08] Speaker 00: Is there anything in your dictionary's definitions to suggest approval is in writing? [00:53:13] Speaker 04: The definitions we quote talk about authoritativeness. [00:53:16] Speaker 04: So they're talking about the same concept of formality. [00:53:20] Speaker 04: We do cite the policies on leave. [00:53:25] Speaker 04: And sometimes for federal employees, sometimes you do need to get approval in writing for certain things. [00:53:31] Speaker 00: But usually it's specified if that is required, right? [00:53:35] Speaker 00: Approval on its face doesn't require a writing. [00:53:38] Speaker 04: Approval requires the requisite formalities being followed, and it may be that those formalities include a writing requirement. [00:53:46] Speaker 07: It sounds like your argument is that Loper-Brite has no impact on this case. [00:53:50] Speaker 07: Do I understand you correctly? [00:53:51] Speaker 04: You do not, Judge Stark. [00:53:52] Speaker 04: So Loper-Brite sets forth the framework that this court should follow. [00:53:56] Speaker 04: And that framework is there's a delegation in 5548, and the court should look, using the framework set forth in Loper-Brite. [00:54:04] Speaker 07: That delegation seems silent on the point that we care about. [00:54:08] Speaker 07: and you seem to be asking us to interpret silence in a statute on a specific point to mean agency can do anything reasonable. [00:54:18] Speaker 07: Isn't that your view? [00:54:19] Speaker 04: Our view is that the writing requirement is [00:54:25] Speaker 04: encompassed within the necessary for the administration authority. [00:54:29] Speaker 04: So if OPM is being given discretion to make these sorts of administrative judgments, that is their job to make these judgments. [00:54:38] Speaker 04: They are best positioned to make these judgments. [00:54:39] Speaker 07: Why isn't that Chevron all over again? [00:54:41] Speaker 04: Because we're not arguing that just because the statute's ambiguous, that therefore there should be a deference to the agency's interpretation. [00:54:49] Speaker 04: What we're arguing is that this case involves a specific issue addressed in Loper-Brite, which is [00:54:55] Speaker 04: the delegation question. [00:54:57] Speaker 04: So this is, this is, this is. [00:54:58] Speaker 08: If OPM's position in this case rested on its view that the regulation said this is the best way to interpret the statutory language, that would be improper under local right. [00:55:12] Speaker 08: Right. [00:55:14] Speaker 08: The agency doesn't get to deference one interpretation of the statutory language. [00:55:19] Speaker 08: You agree with that after. [00:55:21] Speaker 04: Right. [00:55:21] Speaker 04: So, so I guess, yeah. [00:55:24] Speaker 08: Your point is that doesn't answer the question of what 5548 allows the agency in terms of gap filling, which is what is still permitted. [00:55:35] Speaker 08: Yes. [00:55:35] Speaker 08: If 5548 didn't exist, we'd be in a different world, right? [00:55:39] Speaker 08: It would be us deciding what officially ordered an improvement and probably applying it under that definition in every specific factual case. [00:55:51] Speaker 04: So then you would look, are there other delegations besides 5548? [00:55:56] Speaker 04: But yeah, the clearest one is 5548. [00:55:59] Speaker 04: That's what we've relied on. [00:56:01] Speaker 04: And that's why OPM has this broad authority. [00:56:05] Speaker 09: That's generally the sort of thing that OPM does, right? [00:56:09] Speaker 09: I'm sorry. [00:56:09] Speaker 09: That is generally the sort of thing that OPM does, is to find forms, approvals, how things would be done. [00:56:16] Speaker 09: That's across the board, right? [00:56:17] Speaker 04: Absolutely. [00:56:18] Speaker 04: I see my time's expired. [00:56:20] Speaker 04: Yes, absolutely. [00:56:21] Speaker 04: OPM, the civil service mission was involved in the promulgation of the statute. [00:56:27] Speaker 04: They testified at the hearing. [00:56:27] Speaker 04: So going back all the way to World War II and continuing to this day, this has been the subject matter expertise of OPM. [00:56:37] Speaker 04: And the best reading is that's the reason that Congress gave this broad authority to OPM. [00:56:42] Speaker 04: It does not necessarily want to have to address all these issues. [00:56:46] Speaker 04: The kind of detailed analysis you need to do to address every single issue related to overtime pay and the pay scheme generally, they want to be able to delegate in some instances. [00:56:56] Speaker 04: And this is a strong example of that. [00:57:01] Speaker 01: Thank you, counsel. [00:57:07] Speaker 01: Six minutes. [00:57:09] Speaker 01: I'm balancing out your time, because you might have a little bit over. [00:57:12] Speaker 05: I understand that. [00:57:20] Speaker 05: The answers to most of the questions that I just heard posed by the court turn on the initial questions the court asked us to brief, which is, how should the phrase officially ordered or approved be interpreted? [00:57:30] Speaker 05: What is the judicial interpretation? [00:57:32] Speaker 05: Is it what it's always been from Anderson and through to Mercier? [00:57:37] Speaker 05: Are we sticking with that or are we not sticking with that? [00:57:39] Speaker 05: The answer to that is very important because I think we all would agree the delegation of necessary to the administration does not allow an agency to adopt a regulation that encroaches upon a statutory right. [00:57:54] Speaker 05: But that means you have to ask yourself, well, what is the statutory right? [00:57:58] Speaker 01: I'm not sure you're right about that. [00:57:59] Speaker 01: I'm not sure that you can't encroach on a statutory right. [00:58:02] Speaker 01: You can't contradict or conflict directly with the statute. [00:58:05] Speaker 01: The statutory rights are bestowed all the time, and then agencies can adopt regulations that effectuate procedures that might in fact cut back on those rights. [00:58:15] Speaker 05: Well, in this case, the [00:58:17] Speaker 05: So the extent the briefs have discussed that issue, it has been in the context of Chevron's, excuse me, Doe's discussion of Hanson and Schwecker. [00:58:25] Speaker 01: But I'm not interested in that. [00:58:26] Speaker 01: The statute is just completely silent, as far as I'm concerned, on the writing requirement. [00:58:30] Speaker 01: Just silent. [00:58:32] Speaker 01: So if the statute's silent, then what it comes down to me is, was OPM authorized to institute a writing requirement for 5548? [00:58:43] Speaker 01: Why do you say no? [00:58:44] Speaker 05: Well, the cases that have come out since Lover Brite that address these kinds of issues, both from Supreme Court, the seven counties case, and the Las Vegas Sun case from the Ninth Circuit, the institutional shareholders case from the DC Circuit, what they talk about is it's the court's job to interpret what statutory language is. [00:59:04] Speaker 01: I know, but I just told you what I think it is. [00:59:06] Speaker 01: I think it's silent on this point. [00:59:07] Speaker 01: I don't think anything in the words officially ordered or approved tells me anything at all about whether there should be a writing requirement. [00:59:15] Speaker 01: So if that's the way I view the term Congress gave, is OPM allowed to introduce a writing requirement as part of the process? [00:59:25] Speaker 05: I think if the courts [00:59:28] Speaker 05: judicial interpretation of the statutory language changes. [00:59:31] Speaker 05: I mean, what I hear you saying is the change from the previous judicial interpretation of what those words mean. [00:59:37] Speaker 01: We're in bank. [00:59:38] Speaker 01: I'm telling you what I think the words mean. [00:59:40] Speaker 01: So I'm asking you. [00:59:41] Speaker 01: Right. [00:59:41] Speaker 05: And I'm conceding that [00:59:43] Speaker 05: If that changes, if the court breaks from that definition, then all of this analysis changes, because our position is, and the rationale set forth in the case I just mentioned, they talk about it's the court's job to define a category of what, define what the statutory language means, and then [01:00:02] Speaker 05: The agency may regulate in a way that adds details to that, but you can't contradict that. [01:00:06] Speaker 05: You can't, for example, change the word solicit in the statute. [01:00:09] Speaker 05: That's from the Ninth Circuit case that I mentioned, to include solicit and advice. [01:00:12] Speaker 05: Those are two different things. [01:00:14] Speaker 08: So if... So let's start with the definition of officially ordered and approved. [01:00:18] Speaker 08: Officially means somebody with authority orders or approves it, right? [01:00:23] Speaker 08: So that's our statutory definition. [01:00:27] Speaker 08: OPM say in order to demonstrate this you have to give us your time cards to show you work these overtime hours Can they do that? [01:00:37] Speaker 05: Yes, I think the answer to the question about there was three questions about could they? [01:00:41] Speaker 08: Can they set the level of who is the person authorized to do it? [01:00:46] Speaker 08: I think within reason and now if your view is it's our job to interpret the [01:00:52] Speaker 08: to officially authorize and approve, then why isn't it our job to determine what's the appropriate approving official? [01:00:59] Speaker 05: Well, I'll be honest. [01:01:02] Speaker 05: I may have answered that question incorrectly. [01:01:03] Speaker 05: I think that I'm not aware of any specific statute that says OPM has the authority to. [01:01:08] Speaker 08: So you think that officially order and approve should just be given its plain meanings, and then in every single one of these cases, it should be up to the judge involved to determine whether that bare minimum statutory standard was met. [01:01:22] Speaker 08: What an actual application. [01:01:24] Speaker 05: Yes. [01:01:24] Speaker 05: And I think if the OPM were to endeavor to have a regulation that identified who the officials were that were authorized, I think the court would look at its own thoughts about what are the plain language of that term. [01:01:36] Speaker 05: They would consider the regulation. [01:01:37] Speaker 05: They would ask, is that consistent with their judicial interpretation? [01:01:41] Speaker 05: If it is, they'll honor that. [01:01:42] Speaker 05: And if it's not, if they're defining officials with authority in a way that is wacky and doesn't make sense, then I don't think that the court would follow that. [01:02:00] Speaker 05: But just wrap up what I was saying. [01:02:04] Speaker 05: I can see the analysis does change. [01:02:08] Speaker 05: If the court's interpretation of officially ordered and approved changes, then the whole rest of the analysis changes. [01:02:12] Speaker 05: However, if the court retains the judicial interpretation of officially ordered and approved as being encompassing of inducement theory, [01:02:21] Speaker 05: then what the agency has the power to do is maybe add things like the timekeeping requirements, maybe give examples of what it just may be. [01:02:30] Speaker 05: Maybe they have the ability to reasonably identify who is an official and who isn't. [01:02:34] Speaker 05: But what they don't have the power to do is to change the definition that the courts have given to the statutory phrase in a way that eliminates a whole category of orders that, by their very nature, would never have been produced writing, in the words of Anderson. [01:02:51] Speaker 05: So, in summary, we would ask that the court reverse the lower court's decision because inducement theory should remain a viable legal theory of recovery for overtime under Section 5542. [01:03:10] Speaker 01: Thank you.